Appeals from judgments entered in the United States District Court for the Southern District of New York, Mary Johnson Lowe, Judge, convicting appellants of various narcotics offenses. Appellant DeJesus challenges the admission against him of co-conspirator hearsay statements. Appellant Garcia challenges the imposition of cumulative sentences for possession of separate packages of two different narcotics. We affirm.
Before LUMBARD, KEARSE, and WINTER, Circuit Judges.
Louis Rupert Garcia, a/k/a "Papo," and Santos DeJesus appeal from their convictions before Judge Lowe.
After a bench trial on stipulated facts, DeJesus was convicted of conspiracy to distribute heroin, in violation of 21 U.S.C. § 846 (1982); two counts of possession of 2,121 grams and approximately 355 grams of heroin with intent to distribute, in violation of 21 U.S.C. §§ 812 and 841 (1982); and possession of approximately 2.2. grams of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 812 and 841. DeJesus was sentenced to three years in prison on the conspiracy count. He received a suspended sentence on the remaining counts, and was placed on five years probation. DeJesus contends that the independent evidence of a conspiracy was insufficient to permit the admission against him of co-conspirator hearsay statements.
Louis Rupert Garcia, hereinafter referred to by his nickname "Papo" in order to avoid confusion with his co-conspirator Louis Soto Garcia, pleaded guilty to conspiracy to distribute heroin and cocaine, in violation of 21 U.S.C. § 846; possession of approximately 2,121 grams of heroin with intent to distribute, in violation of 21 U.S.C. §§ 812 and 841; and possession of approximately 1,505 grams of cocaine, with intent to distribute, in violation of 21 U.S.C. §§ 812 and 841. He was sentenced to three consecutive ten-year prison terms, to be followed by a five-year special parole term. On appeal, Papo challenges the imposition of cumulative sentences for the simultaneous possession of separate narcotics.
Finding no merit in either defendant's contentions, we affirm the convictions.
The government's proof of DeJesus' trial included stipulations, narcotics, records of narcotics transactions, and taped telephone conversations intercepted on Papo's telephone pursuant to a court order. Viewed in the light most favorable to the government,*fn1 the evidence established the following events.
On July 30, 1984, at 3:22 p.m., one Louis Soto Garcia telephoned Papo from Puerto Rico. Garcia directed Papo, who was in New York, to take 250 grams of heroin to DeJesus later that afternoon. Garcia said that he had left DeJesus in charge in New York while he was in Puerto Rico. He instructed Papo to tell DeJesus that a man named "Nelson" would pick up the heroin the following morning and deliver it to Garcia. Papo and Garcia then discussed the quality of the heroin to be delivered that afternoon and delivery of a better-quality heroin to take place soon. The call concluded with Garcia repeating his directions to Papo to deliver the heroin that day to DeJesus, and to inform DeJesus that Nelson would pick up the heroin the next day.
About an hour and a half later, Papo telephoned DeJesus at a number listed in the name of Garcia's wife. Papo asked DeJesus if he had spoken with Garcia. When DeJesus replied that he had spoken to Garcia a little while ago, Papo stated that Garcia was waiting for something that Papo would deliver to DeJesus. Papo said that he would see DeJesus in about an hour, and DeJesus replied that he would be waiting.
On August 3, 1984, Garcia again called Papo from Puerto Rico. Garcia said that he had received the heroin and that it had "worked perfectly." Garcia and Papo then negotiated another delivery in which DeJesus would serve as a middleman. Garcia instructed Papo to see DeJesus the following day at about 1:00 p.m. so that Papo and DeJesus could make arrangements for delivery to Garcia. Garcia then gave DeJesus' home telephone number to Papo.
The next day, August 4, 1984, Papo called Garcia in Puerto Rico at approximately 4:30 p.m. Papo indicated that he had seen DeJesus and had given him a half kilogram of heroin.
On September 6, 1984, DEA agents arrested DeJesus and executed a search warrant at his home in Woodside, New York. The agents found various amounts of cocaine, a cutting agent containing ...