Appeals from judgments of conviction, entered after a jury trial in the United States District Court for the Eastern District of New York (Maletz, J.), for various offenses related to a large-scale conspiracy to import and distribute cocaine. Affirmed.
Oakes, Newman and Miner, Circuit Judges
Appellants challenge their convictions, entered after a ten-week jury trial in the United States District Court for the Eastern District of New York (Maletz, J.), on forty-eight counts of a forty-nine count indictment for crimes arising out of a conspiracy to import and distribute cocaine. On appeal, they raise issues common to all appellants, principally a claim of prosecutorial misconduct relating to a potential defense witness. Individual appellants raise challenges to, inter alia, the conduct of the prosecutor in summation, the sufficiency of the evidence, and the admission of certain evidence at trial. Although none of the claims raised requires reversal, appellants have highlighted trial conduct of the Assistant United States Attorney ("AUSA") that gives us pause. We affirm the convictions in all respects, but not without noting our concern for the prosecutor's tactics.
Appellants were involved in a conspiracy to import large amounts of cocaine into the United States. Between 1983 and 1985, government agents traced the involvement of the conspirators in the importation, and attempted importation, of more than 150 kilograms of the drug. The conspirators concealed the cocaine on various Grancolombiana Lines ships bound for New York from Colombia. Crewmen on board the vessels were enlisted to hide the cocaine and to "off-load" it once the ships reached New York harbor. The cocaine was lowered over the side of the vessel to swimmers, who carried their cache to shore and eventually transferred it to others.
Government agents conducted extensive visual surveillance of the conspiracy's headquarters in Brooklyn, New York and videotaped the activities of some of the appellants there. The agents also intercepted numerous telephone conversations related to the conspiracy through authorized wiretap surveillance over a nine-month period ending in August 1985. Appellants Pinto, Vence, Luis and Enrique Moreno, Gonzalez and Sinisterra discussed the business of the conspiracy in coded conversations. Pinto headed the group, with defendants Vence, and Luis and Enrique Moreno, as his lieutenants. Defendants Enriquez, Gonzalez and Sinisterra were responsible for distributing the drugs to other drug traffickers.
Lamberto Aguirre-Castro ("Aguirre"), a seaman on the Grancolombiana Lines ship "SIMON BOLIVAR," cooperated with the government. He provided information about the workings of the conspiracy and allowed the government to record his conversations with some of the conspirators. Aguirre's testimony at trial was important in establishing the relationship between various members of the conspiracy and in linking them to the shipments.
Aguirre had observed two shipments, including an unsuccessful shipment, aboard the SIMON BOLIVAR in March and August 1984. In March, another seaman, Luis Lagos, recruited Aguirre to act as a lookout. Aguirre kept watch as a Colombian police officer, Lieutenant Ruiz, and a third member of the ship's crew brought cocaine aboard. Lagos promised Aguirre $16,000 for his participation. Despite the success of the March shipment, Aguirre was not paid for his services. His complaints to conspiracy members about his compensation led to a meeting with Luis and Enrique Moreno, whom Aguirre knew as organizers of the venture.
While Aguirre was attempting to secure payment for the March job, another member of the SIMON BOLIVAR's crew, Gonzalez-Solis, asked him to participate in an August shipment of cocaine. On July 31, 1984, while the vessel was docked at the Colombian port of Baranquilla, Aguirre again acted as a lookout. Following his instructions from Gonzalez-Solis, Aguirre signaled other crew members waiting in the ship's lounge, including appellants Castano and Marin-Orozco, at the moment the cocaine was delivered. They left the ship's lounge in response to Aguirre's signal.
The following day, August 1, 1984, the SIMON BOLIVAR left port, bound for New York. While en route, ship's officers discovered and confiscated the cocaine during a search of the vessel. Later, Aguirre met on several occasions with various members of the conspiracy, including Castano, both Moreno brothers and Pinto, to explain his actions during the voyage and quiet their suspicions that he was responsible for the confiscation.
The conspirators were arrested between April 10, 1985 and March 10, 1986. Several were arrested while in possession of controlled substances and firearms. Marin-Orozco was seized by U.S. Customs agents on February 18, 1986, while on a Grancolombiana Lines ship docked in Houston, Texas. One of the arresting agents, Julio Velez, told Marin that he knew about the August 1984 shipment. He mentioned the names of four others he knew to be involved in the conspiracy. After Marin was advised of his rights, he agreed to make a recorded statement, admitting his part in the August 1984 shipment. He identified the hiding place aboard the SIMON BOLIVAR, and informed Agent Velez that the cocaine had been stored in four or five dark trash bags.
Castano was arrested on the SIMON BOLIVAR while it was docked in New York in March 1986. He denied involvement with the conspiracy, claiming that he was on vacation at the time he allegedly aided in hiding cocaine aboard the vessel.
1. Interview of Potential ...