Appeal from judgments entered in the United States District Court for the Eastern District of New York convicting appellants after a jury trial of conspiracy to manufacture, distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846. Reversed and remanded for a new trial.
Cardamone, Winter and Miner, Circuit Judges.
Appellants, Harold Orejuela and Jimmy Vargas-Toro, appeal from judgments of conviction entered in the United States District Court for the Eastern District of New York, convicting them, after a jury trial, of conspiracy to manufacture, distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(ii) (1982 & Supp. III 1985). The conspiracy charge was alleged in the first count of a three-count indictment which charged appellants and two others with additional counts of manufacturing cocaine (Count Two) and possessing cocaine with intent to distribute it (Count Three), in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)A)(ii). Appellants were acquitted on the two substantive counts, and each was sentenced to a term of imprisonment of eight years on the conspiracy count. Their co-defendants, Jose Arturo Victoria and Alfredo Garcia-Cuartas, entered pleas of guilty to the manufacturing count in satisfaction of all charges in the indictment. Because the trial judge's questioning of appellants before the jury exceeded proper bounds by conveying the distinct impression that he considered their testimony incredible, appellants were deprived of a fair trial. We therefore reverse and remand for a new trial as to both appellants.
During a surveillance conducted on September 26, 1986, agents of the Drug Enforcement Administration ("DEA") observed the arrival of three automobiles at the Kern Chemical Plant, Mount Vernon, New York. The agents observed four men, including appellants Orejuela and Vargas-Toro, emerge from the automobiles, one of which was marked "Denise's Car Service," the name of Orejuela's employer. The four men transferred a number of boxes, later determined to contain ether, from the plant's loading dock to the vehicles, which then were driven to an apartment building on West Seventh Street in Brooklyn where Victoria maintained an apartment. Orejuela and Vargas-Toro arrived together in the Car Service vehicle, a green Chevrolet. Orejuela remained outside while the others transferred some of the boxes from the Chevrolet into the building. As soon as the boxes were unloaded, Orejuela drove away.
Later the same day, Garcia-Cuartas and Vargas-Toro drove one of the other automobiles from the West Seventh Street building to their residence, a two-story house on Fourth Avenue in Brooklyn. Victoria arrived in the third automobile, and all three men participated in unloading boxes of ether from both vehicles and carrying them into the house. Upon completion of this transfer, Victoria left and the other two remained in their living quarters. During a surveillance of the Fourth Avenue residence on October 1, 1986, DEA agents observed Victoria, Vargas-Toro and Orejuela transfer some boxes from the residence into two automobiles. The boxes then were driven to the West Seventh Street apartment building, the place where the contents of Orejuela's automobile had been unloaded on September 25. On this occasion, Orejuela was observed carrying two boxes into the building.
When the DEA agents entered the courtyard of the West Seventh Street premises in the early evening on October I, they detected a strong odor of ether. Moving from floor to floor in the building in order to pinpoint the source of the ether, a chemical known for its use in the processing of cocaine base, the agents noted the smell of disinfectant emanating from the sixth floor apartment occupied by Victoria. They then went to the roof of the building above the apartment and were able to smell ether as well as disinfectant. Apparently, disinfectant was used in an effort to mask the ether odor. Nevertheless, the agents continued to smell the ether from the roof above the apartment, from the hallway outside the apartment and from the street as they maintained surveillance throughout the evening and into the next morning.
In the afternoon of October 2, the DEA agents entered Victoria's apartment under the authority of a search warrant. The apartment consisted of a kitchen, living room, two bedrooms and a bathroom. The agents found eight kilograms of cocaine under the kitchen sink. They also found, at various locations in the apartment, material and equipment clearly indicating that the apartment had been used as a clandestine cocaine manufacturing facility. The material and equipment included plastic containers, acetone, hydrochloric acid, beepers, scales, filtering materials, funnels, pails and a drying apparatus. Among the items discovered was a large quantity of ether. Although a cloth had been saturated with disinfectant for the purpose of covering the odor of the chemicals used in the process, vapors from the manufacturing operations permeated the entire apartment. Orejuela and Vargas-Toro were present in the apartment along with Victoria and Garcia-Cuartas when the agents entered the apartment. All four men were in their underwear at the time, according to a government witness, and all were arrested. The agents also executed a search warrant at the Fourth Avenue residence shared by Vargas-Toro and Garcia-Cuartas. There they located sixteen gallons of ether and sixteen gallons of acetone packed in boxes. The cans of ether were similar to those found at the West Seventh Street apartment.
Orejuela and Vargas-Toro both testified at the trial. Prior to the events giving rise to his prosecution in this case, Vargas-Toro, a national of Colombia, had been released on bail following his arrest for entering the United States illegally He testified that Garcia-Cuartas, his step-father, enlisted him to assist in picking up the boxes at the chemical plant on September 25, but that he was not aware of the contents of the boxes. He said that he then drove with Orejuela to Victoria's apartment, and that he transferred the boxes from Orejuela's car to the apartment. He also said that he carried boxes later that day into the residence he shared with his step-father. On October 1, Vargas-Toro assisted in moving to Victoria's apartment the boxes located at his residence. He testified that he remained in the apartment throughout the evening and eventually went to sleep there in a bed he shared with Orejuela. During the course of the evening, Vargas-Toro noticed a strong odor in the apartment. When Orejuela inquired about the odor, Victoria said that it was ether. When Vargas-Toro awakened the next morning, he washed up, entered the living room and began to watch television. He was wearing short pants, and, at that point, noticed pails and buckets in the living room. He was joined in the living room by Orejuela, who had just taken a bath. The "raid" occurred shortly thereafter. Vargas-Toro denied any knowledge of the presence of cocaine or the use of the apartment as a processing laboratory.
During the course of the foregoing testimony, given on direct examination, the trial court interrupted to inquire of Vargas-Toro regarding his current immigration bail status, his failure to report to Immigration, whether he had observed Orejuela loading boxes at the chemical plant and whether he knew what a beeper was used for. The exchange between the Court and Vargas-Toro included the following:
Q: By the way, do you know why Mr. Orejuela was staying in that apartment that night?
A: No. I sincerely don't. I didn't, I never said, you know, I just saw him two or three times.
THE COURT: Wait a minute. He was in the living room with this gentleman?
THE WITNESS: The next morning.
THE COURT: Ask him if he was in the living room with him.
THE WITNESS: Yes, after he took his bath, yes, he came into the living room.
THE COURT: While they were in there watching TV did you turn to him and say, "What are you staying here for"?
Q. It's not your business, is it?
MISS COPELAND: Objection, your Honor.
THE COURT: And you were with the man for ...