Appellants appeal convictions for conspiring to distribute narcotics, conducting a criminal enterprise and other substantive offenses, entered after a six-week jury trial in the Southern District of New York, Chief Judge Motley presiding. Convictions affirmed.
Before: LUMBARD, MESKILL, and PIERCE, Circuit Judges.
Juan Quinones, Marta Pinto-Rodriguez, Maria Torres, Esteban Zarate, and Carmen Pinto appeal from judgments of conviction entered against them on September 9, 1985, after a six-week jury trial in the Southern District before Chief Judge Motley.*fn1
The superseding indictment on which they were tried charged nineteen defendants in twenty-three counts with various federal narcotics violations, including conspiracy to distribute heroin and cocaine in New York and New Jersey between January 1, 1980 and February 26, 1985.*fn2 Thirteen defendants went to trial.*fn3 One defendant, Anthony Torres, was acquitted. At the close of the government's case, Chief Judge Motley dismissed the case against Jose De Jesus and Anderson Delgado, both of whom were charged solely in the conspiracy count. The firearms counts against Quinones were also dismissed for lack of sufficient evidence. Convictions were returned against all other defendants whose cases were submitted to the jury.*fn4
We consider the following points raised by appellants: (1) appellants claim that they were denied their Sixth Amendment right to confront their accusers and their right to cross-examine witnesses because certain bags of heroin, which were marked for identification and which allegedly contained skull and crossbones markings, were unavailable because they had been stolen by Assistant United States Attorney Daniel Perlmutter; and that (2) Perlmutter's actions should be considered willful suppression of evidence by the government for which sanctions should be imposed; (3) Quinones claims that Chief Judge Motley's charge on the criminal enterprise count was improper because it included anticipated profits within the definition of substantial income; (4) Pinto claims that under United States v. Geaney, 417 F.2d 1116 (2d Cir. 1969), cert. denied, 397 U.S. 1028 , 90 S. Ct. 1276, 25 L. Ed. 2d 539 (1970) co-conspirator statements were not admissible against her; and that there was insufficient evidence to convict her of the conspiracy charge; (5) Zarate claims the evidence related to two separate conspiracies, that he was involved in only one, and that he was prejudiced by trial on both conspiracies; (6) Zarate further claims that it was error not to grant his severance motion; and (7) Zarate claims that certain evidence about firearms and racial rivalries should have been excluded under Fed. R. Evid. 403.
We find no error, and, accordingly affirm the convictions.
The evidence adduced at the six-week trial may be summarized as follows. In 1981, Quinones recruited Bueno-Risquet and Zarate, both Mariel boat-lift refugees from Cuba living in New Jersey, and began a large-scale drug operation that distributed cocaine and heroin from Mexico to California, Pennsylvania, New York, and New Jersey. The testimony of undercover agents who infiltrated the drug ring, as well as the testimony of cooperating witnesses Eddie Quinones, appellant's brother who kept track of the organization's money, Daniel Sardina, and Alberto Salas, friends and accomplices of the ring leaders, reveals that from 1981 to 1984 the three principals, their family members and others bought and sold drugs out of their Camden, New Jersey storefronts and homes. Quinones was responsible for procuring the drugs, while Bueno-Risquet managed street sales and distribution. Zarate held money for the partnership and used his home for cutting and storing heroin.
In April and May of 1984, the New Jersey State Police made numerous undercover purchases of heroin and cocaine from Bueno-Risquet, Pinto-Rodriquez, Torres and Carlos Campos-Perez resulting in their arrests. Bueno-Risquet and Quinones, who had been arrested in New Jersey earlier on other drug charges, jumped bail and moved their center of operation to the Bronx, New York.
On August 11, 1984, Drug Enforcement Administration ("DEA") Special Agent de la Cova, who was stationed in New York, received a heroin sample from a confidential informant, who had purchased it from an associate of Quinones. Thereafter, de la Cova negotiated with Quinones for the purchase of larger quantities of drugs. A deal was worked out whereby Quinones would provide Agent de la Cova with ten ounces*fn5 of heroin for $62,500. Quinones told Agent de la Cova that he had an immediate need for cocaine and the two discussed the possibility of exchanging heroin for cocaine. Agent de la Cova told Quinones he would go to Florida to check on the availability of cocaine but that he would need two ounces of heroin to show the people in Florida before he would agree to purchase more heroin. On August 21, 1984, Quinones supervised the sale to Agent de la Cova of two ounces of heroin for $12,500 in the neighborhood of 11th Avenue and 54th Street, Manhattan. Agent de la Cova again told Quinones that if de la Cova's confederates in Florida approved of the heroin, he would come back to buy more and would also make arrangements to sell Quinones cocaine.
Over the next few days, de la Cova telephoned Quinones, pretending to be in Florida, and said that he would bring back thirty-five kilos of cocaine to sell to Quinones. On August 26, de la Cova called Quinones and told him that he had the thirty-five kilos of cocaine and that he had $500,000 to purchase two kilos of heroin. The next day, Agent de la Cova told Quinones that he would need $50,000 before delivering the cocaine. Quinones, however, suggested exchanging the equivalent of $50,000, or six ounces of heroin, for the cocaine and Agent de la Cova agreed. The two went to Quinones' apartment, at 1052 Hall Place in the Bronx, where Quinones gave de la Cova six ounces of heroin agreed to be worth $50,000 and, later that same day, another nine ounces toward a one kilogram purchase request by de la Cova.
In the evening of August 27, Quinones and others met with Agent de la Cova at a gas station, at 149th Street and Southern Boulevard, to pick up the thirty-five kilos of cocaine Agent de la Cova was to deliver. At that time, DEA Agents arrested Quinones, Bueno-Risquet, Jose Luis Pimentel, Thomas Sanchez, and Anthony Torres. Shortly thereafter, other agents executed a search warrant for Quinones' apartment where they arrested Eddie Quinones. Marta Pinto-Rodriguez and Carmen Pinto were present, but were not arrested at the time. Jose Vazquez escaped by jumping out a window, but was arrested later. The search of the premises yielded a small quantity of heroin and two handguns.
None of the defendants took the stand at trial and only Zarate, Pinto and Torres called witnesses who testified about peripheral matters.*fn6
I. The Missing Bags of Heroin
The appellants ask for reversal of their convictions because the theft of certain of the government's exhibits during trial allegedly deprived them of a fair trial by making it impossible for them to confront certain government witnesses with the exhibits. The particular exhibits, which had been marked for identification, consisted of bundles of glassine bags each containing heroin. They had been purchased by two New Jersey State police detectives who testified at trial that all the bags were marked with skull and crossbones. However, the appellants claim that according to notes made by one of defense counsel, who had examined the exhibits prior to their theft, some of the bags may not have contained the skull and crossbones marking.*fn7 The claim on appeal is that by confronting the government witnesses with the alleged discrepancy, doubt would have been cast on their testimony.
We are not persuaded that there is any cause for complaint in the rulings of the district court which followed the discovery that the exhibits had been destroyed, including the ruling admitting police records to support the testimony of the government's witnesses with respect to the skull and crossbones markings. A summary of the sequence of events at trial will show how trivial the markings were in the light of the overwhelming and uncontradicted evidence of the defendants' activities.
The four government exhibits in question were marked for identification as: GX-31, GX-32, GX-33 and GX-35. The ...