Appeals from judgments of conviction for conspiracy to distribute and possess with intent to distribute cocaine (Count One, all defendants) and possession of two kilograms of cocaine with intent to distribute (Count Two, Torres, De Leon and Valenzuela) entered in the United States District Court for the Southern District of New York, John F. Keenan, J., after a jury trial.
Feinberg, Chief Judge, Pratt, Circuit Judge and Dorsey, District Judge.*fn*
Hector Torres, Bolivar De Leon, Luis Valenzuela and Secundino De Los Santos appeal from judgments of conviction entered in the United States District Court for the Southern District of New York after a jury trial before Judge John F. Keenan, J., based upon a two-count indictment. Count One charged all four appellants with conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. Count Two charged Torres, De Leon and Valenzuela with possession of two kilograms of cocaine with intent to distribute in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B). Appellants were convicted on all counts. Torres, De Leon and Valenzuela each received a six-year suspended sentence on Count One; nine, seven, and six years imprisonment, respectively, on Count Two; and four years probation. De Los Santos received four years imprisonment on Count One.
On appeal, Torres and De Los Santos claim that the evidence was insufficient to sustain the guilty verdicts against them. De Leon and Valenzuela argue that the district court erred in refusing to give a "missing witness" charge against the government and in suggesting in its charge that the missing witness, a government informant, was equally available to both sides even though the informant refused to be interviewed by defense counsel. Several other claims are also raised. For the reasons given below, we affirm the judgments of conviction.
At trial, the government's evidence consisted primarily of the testimony of Ramon Leader, a confidential government informant, and Arthur Kersey, a Drug Enforcement Administration ("DEA") surveillance agent. These witnesses testified as to the following facts. In April 1987, Leader and another confidential informant, Jacquin Rubio Fornier, met with De Los Santos and discussed purchasing two kilograms of cocaine for $52,000. The next day, the informants met De Los Santos and De Leon at the MiNido Taverna, a bar in northern Manhattan. De Leon indicated that he would introduce the informants to his "brother" who had "the connection" to the cocaine. De Leon left the bar and met Valenzuela up the street at Jon's Car Bar. Several minutes later, De Leon returned with Valenzuela and introduced him to the informants as his "brother." Valenzuela, in the presence of De Leon and De Los Santos, told the informants that they could buy two kilograms of cocaine for $52,000 or could wait a few hours and buy the cocaine from another source for $44,000. Leader indicated that he did not want to wait and would pay the higher price. Valenzuela then left to make a telephone call.
Approximately 30 minutes later, Torres arrived at MiNido and met Valenzuela out front. Torres then entered the bar, but apparently did not approach De Leon. However, De Leon pointed Torres out to Leader as the source of the cocaine. Valenzuela then entered the bar, spoke briefly with Torres, and the two of them then drove away in Torres's car. De Leon, De Los Santos and the two informants went outside and waited for Valenzuela to return. At one point a car pulled up and De Leon, nervous that the man exiting the car was a policeman, indicated that he was going to place a telephone call in order to "stop Mr. Torres from bringing over the dope."
Becoming impatient with the delay, Leader crossed the street to make a telephone call. From this vantage point, he saw Torres park his car and gesture to De Leon. Kersey heard Torres say something in Spanish to De Leon. Leader also saw Valenzuela cross the street with a black brief case about half a block away from Torres and walk towards Jon's Car Bar. De Leon motioned for Leader to follow him and Leader did so. De Leon, De Los Santos and the two informants met Valenzuela in front of Jon's Car Bar while Torres stood in front of MiNido. Leader, De Leon and Valenzuela then went into the bathroom at Jon's Car Bar, where De Leon and Valenzuela opened the brief case and displayed two kilograms of cocaine.
After Leader insisted that the purchase money be delivered at MiNido, De Leon -- carrying the cocaine -- De Los Santos, Valenzuela and the two informants returned to MiNido. Valenzuela and Torres remained outside, and the others entered the bar. Appellants were arrested shortly thereafter. Torres was searched and agents recovered $3,871 in cash.
A. Sufficiency of the Evidence.
Torres and De Los Santos challenge their convictions based upon a claim of insufficiency of the evidence, but the claim merits little discussion. The evidence against them, when viewed in the light most favorable to the government, is more than sufficient to sustain the jury verdicts against them.
Torres argues that there was no direct proof of the content of his conversations with Valenzuela and the destination of their trip together, and stresses that he was never seen with the cocaine. He argues that his mere presence on the street and his association with Valenzuela, a well known personality in the neighborhood, were insufficient to establish that he was involved in the drug conspiracy. He discounts De Leon's statement indicating that Torres was the prospective supplier, arguing that De Leon might ...