Appeal from judgments entered after a jury trial in the United States District Court for the Southern District of New York (Peter K. Leisure, Judge) convicting defendants of one count of conspiracy to distribute cocaine and heroin, in violation of 21 U.S.C. § 846, and one count of distribution of one ounce of heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B). One appeal, defendant Pena raises a speedy trial claim and both defendants claim that certain remarks in the government's summation deprived them of a fair trial.
FEINBERG, Chief Judge, FRIENDLY*fn* and WINTER, Circuit Judges.
Alberto Pena and Juan Urena appeal from convictions on one count of conspiracy to distribute heroin and cocaine, 21 U.S.C. § 846, and one count of distribution of heroin, 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B), resulting from their participation in a drug-selling operation based in a Manhattan restaurant. On appeal, both appellants contend that certain remarks made by the prosecutor during summation deprived them of a fair trial. Also, Pena contends that he was not brought to trial within the time limits established by the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq. We affirm.
The criminal charges at issue in this case grew out of two independent undercover investigations of narcotics sales at Elena's Restaurant, a small eatery located on Avenue B in Manhattan's Lower East Side. The government's proof at trial consisted primarily of testimony about two undercover drug purchases at Elena's, one by a New York City officer and the other by a special agent of the Drug Enforcement Administration ("DEA"). The government also presented evidence that the two transactions were part of an ongoing operation involving both defendants in which "retail" sales of both heroin and cocaine were made.
In November, 1984, DEA informant Manuel Garcia received information that a known heroin dealer was making deliveries to Elena's. On November 20, Garcia went to Elena's, where he met with defendant Juan Urena. Defendant Alberto Pena was also at the restaurant. Garcia expressed an interest in buying some heroin, and Urena introduced him to Sixto and Cesar Caba. The Cabas agreed to sell Garcia one ounce of heroin. Urena was present during these negotiations. That afternoon, Garcia returned to Elena's, and Urena and the Cabas furnished Garcia with a sample of the heroin.
Early that same evening, Garcia returned yet again to the restaurant to pick up the heroin he had previously agreed to buy. DEA Agent Karen Rij accompanied him. Garcia entered the restaurant alone, and returned to Rij's car after being told that the heroin had not yet arrived. The two went back in, and Rij asked Urena and Pena when the package would arrive. Pena stated that it would be there within half an hour. Rij and Garcia left and returned approximately an hour later. Garcia entered and spoke to the defendants, learned that the heroin was ready, and returned to get Rij. Rij entered Elena's and Urena showed her a bag containing a package of white powder. Rij then took Urena to her car, where she gave him $8800 in cash and Urena gave Rij the bag of heroin. Rij and Garcia left the scene, and no arrests were made at that time.
Approximately one hour later, an unrelated New York City undercover investigation also found its way to Elena's. On December 18, 1984, undercover officer James Callender entered the restaurant and made a literally "over the counter" purchase of $80 worth of heroin and cocaine. A woman named Carmen counted out eight $10 bags of drugs while defendant Pena, the only other person on the premises, watched the street, where uniformed officers were patrolling; at one point he warned Callender to keep the money down below the counter so it would not be seen. Later, Pena helped Carmen count the $80 Callender had paid. Pena was arrested that day and charged with the sale of the drugs to Callendar. He later pleaded guilty to a felony charge in Supreme Court, New York County.
According to the testimony of Miguel Santana, a cousin of Pena's who testified for the government pursuant to cooperation agreement, these undercover sale were typical of an ongoing narcotics distribution conspiracy in which both Pena and Urena were participants. The woman armed Carmen sold $5 and $10 bags of heroin and cocaine to people who came into the restaurant. Pena and Urena handed the bags of drugs to her as needed, and she gave them the money from each sale.
On January 29, 1985, Pena and Urena were arrested by federal authorities and charged in a complaint with various narcotics offenses. Warrants were also issued for Sixto and Cesar Caba, but neither was apprehended; the Cabas remained at large at the time of argument of this appeal. On February 28, the four were indicted and charged with one count of conspiracy to distribute heroin and one count of distribution of heroin. On May 16, the government obtained a superseding indictment that deleted the Cabas as defendants, lengthened the duration of the conspiracy, expanded its scope to include distribution of cocaine, an added the December, 1984 sale for which Pena had already been arrested as an overt act. Prior to trial, both defendants moved to dismiss the indictment on speedy trial grounds. The district court denied the motion. Trial began on July 15, 1985. The jury convicted Pena and Urena on both counts.
Both defendants now appeal. Pena renews his claim that the extended pretrial period deprived him of his statutory right to a speedy trial. In addition, both defendants claim that certain remarks made by the prosecutor during his summation were so prejudicial as to deprive them of a fair trial.