Appeals from judgments of the United States District Court for the Southern District of New York, Whitman Knapp, Judge, convicting each defendant on one count of kidnaping and one count of conspiring to kidnap, in violation of 18 U.S.C. §§ 1201(a)(1) and (c). Affirmed.
Before: OAKES, KEARSE, and PIERCE, Circuit Judge.
Defendants Francisco C. Pelas and Enrique Jesus Osorno appeal from judgments entered in the United States District Court for the Southern District of New York, entered after their retrial before a jury and Whitman Knapp, Judge, convicting them on one count of kidnapping 11-year-old Luis Almeida ("Luis") and transporting him in interstate commerce, in violation of 18 U.S.C. § 1201(a)(1) (1982), and one count of conspiring to commit those acts, in violation of 18 U.S.C. § 1201(c) (1982). Judgments of conviction entered after the first trial of these defendants and others on the same charges were set aside on appeal principally on the ground that the trial court had unduly restricted defendants' presentation of their theory of defense. See United States v. Pedroza, 750 F.2d 187 (2d Cir. 1984) ("Pedroza"). The principal arguments advanced on this appeal are that the evidence was insufficient to support defendants' convictions and that the admission against Pelaes of evidence of his statement, made while he was incarcerated, to a similarly incarcerated convicted conspirator, violated Pelaes's Sixth Amendment right to counsel. For the reasons below, we affirm the judgments of conviction.
The sequence of events leading to the present prosecution, reflected by the evidence presented at both trials, was fully described in our opinion in Pedroza. Except to the extent necessary for discussion of defendants' specific contentions on this appeal, the evidence presented at the retrial, taken in the light most favorable to the government, will be but briefly summarized here.
In November 1983, Pelaes, Angel Lastre-Parrada, and two others intercepted Luis at gunpoint as he left his house in Los Angeles, California, and kept him at various locations in Los Angeles and New York for some three weeks. Luis was recaptured in New York by agents of the Federal Bureau of Investigation ("FBI").
The theory of the prosecution was that the kidnapping of Luis was narcotics-related. Osorno had sold ten kilograms of cocaine, on consignment, to one Ramon Antonio Serrano. On the recommendation of Luis's uncle, Jose Alfredo Almeida ("Freddy"), Serrano had entrusted most of this cocaine to Freddy's father-in-law, Victor Jimenez for safekeeping. Thereafter, the cocaine was seized by the police, and Jimenez disappeared. Serrano, who apparently did not believe Freddy's report of the seizure, attempted to find Jimenez; Osorno, who apparently had not been paid for the cocaine, attempted to find Serrano.
The government sought to prove that Pelaes and others, hired by Serrano to help recover the cocaine, had kidnaped Luis in order to coerce Freddy to disclose Jimenez's whereabouts or to cause the return of the cocaine. It presented the testimony of, inter alios, Luis, his parents, and Freddy, and the testimony of Lastre-Parrada, who had pleaded guilty to the kidnaping charges and agreed to cooperate with the government. Lastre-Parrada testified not only to the details of the kidnapping, including the roles played by Pelaes and Osorno, but also to the fact that Pelaes, while awaiting retrial, had asked Lastre-Parrada to testify falsely in support of Pelaes's trial contentions.
Pelaes's contention at trial was that the abductors of Luis had lacked the intent necessary to be guilty of kidnaping because they had been led by Serrano to believe that Luis's father had voluntarily given Luis to them as "security" for the return of or payment for the missing cocaine. Serrano, who also had pleaded guilty to the kidnaping charges, testified for defendants in support of this contention. Serrano testified that the purchase of the cocaine on credit had been engineered by Luis's father.
The jury found both defendants guilty on both the kidnaping and the conspiracy to kidnap counts. Pelaes was sentenced to 18 years' imprisonment on each count, to be served concurrently. Osorno was sentenced to 12 years' imprisonment on each count, to be served concurrently. These appeals followed.
On appeal, Pelaes contends principally (1) that the admission of his statement, made while he was incarcerated and awaiting retrial, to Lastre-Parrada, who was incarcerated in proximity to him, violated his Sixth Amendment right to counsel, (2) that the court erred in admitting against him evidence of the cocaine transaction between Osorno and Serrano, and (3) that the evidence at trial was insufficient to convict him on the conspiracy count. Osorno contends principally that the evidence was insufficient to support his conviction on either count. We have ...