Appeals from judgments of conviction entered by the United States District Court for the Southern District of New York, John M. Walker, Judge, for conspiracy for distribute cocaine. Affirmed.
Oakes and Winter, Circuit Judges, and Cedarbaum, District Judge.*fn*
CEDARBAUM, District Judge:
Esperanza Saa, Gabriel Saa, Martha Vega and Luis Andrade appeal from judgments of conviction on one count of conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846. The judgments were entered following a jury trial before the United States District Court for the Southern District of New York, John M. Walker, Judge. Appellants contend that alibi witnesses were improperly precluded from testifying at the trial, that an informant's identity should have been revealed to them, and that the trial court should not have allowed the Government to argue that an inference unfavorable to the defendants could be drawn from their failure to call the informant as a witness. Although we find that the district court erred in these respects, the errors were harmless and we therefore affirm the convictions of all four defendants.
The evidence, as presented in the Government's case, showed that in March of 1987, a paid confidential informant, referred to during the trial as "Robert," had a conversation with one Eli Tollinchi about purchasing large quantities of cocaine. Tollinchi, who set about finding a supplier of drugs to sell to Robert, met in April with Luis Barona, a co-defendant who pled guilty before trial. In a telephone conversation on Friday, April 24, 1987, Barona told Tollinchi to go to 10 East 67th Street, a largely vacant building in Manhattan, to consummate a deal with Robert. When Tollinchi and Barona met outside 10 East 67th Street, Tollinchi told Barona that the transaction could not go forward that day because Robert, Tollinchi's buyer, had not been able to contact his partner. Barona told Tollinchi that the owners of the cocaine were present and should not be trifled with because they were dangerous. Barona pointed to an orange Chevrolet Nova in which a man and a woman were sitting in the front seat. Defendant Gabriel Saa, who was introduced as the superintendent of 10 East 67th Street, then joined Barona. At Tollinchi's request, Barona and Gabriel Saa agreed to hold on to the "material" until the following Monday.
On Monday, April 27, Tollinchi met with Gabriel Saa at 10 East 67th Street. They drove together to pick up Robert. On their return to East 67th Street, the same orange Nova was parked outside the building with the same man and woman inside. Gabriel Saa identified them to Tollinchi as the owners of the cocaine. Robert, Gabriel Saa and Tollinchi met with Barona inside the building. Gabriel Saa produced two packages of cocaine. Robert pierced the packages with a knife to test the cocaine and then left, saying that he would return in an hour. Tollinchi and Barona waited in the Saa family apartment on the second floor, where they met defendant Esperanza Saa, Gabriel Saa's wife. After speaking with Robert by telephone, Tollinchi announced that Robert had once again been unable to contact his partner and that the deal could therefore not be done that day. Tollinchi and Barona were then taken to a vacant doctor's office on the first floor. Tollinchi heard footsteps going up and then coming down the stairs, whereupon Gabriel Saa told Tollinchi and Barona that the cocaine had been taken away. Outside the building, Tollinchi saw defendants Luis Andrade and Martha Vega, whom he recognized as the man and woman who had been in the orange Nova. Vega was putting a package inside her large coat. Gabriel Saa told Tollinchi to turn his back because the man and woman did not like to be seen. When Tollinchi turned around again, Andrade and Vega had gone.
Late in the afternoon of the following day, April 28, Robert arrived at 10 East 67th Street with two undercover officers of the New York City Police Department, who were acting as his partners. Barona, Tollinchi and the Saas were already there. Gabriel Saa told the others that he had to go to Queens to pick up the cocaine. He left in a pickup truck and was followed by undercover agents. After a considerable period of searching in Queens, Gabriel Saa found and parked next to the orange Nova. He had a conversation with Andrade while Vega remained in the Nova. After meeting with Gabriel Saa, Andrade and Vega drove to a residence in Queens. When they came out, with Vega wearing a long coat, they drove to Manhattan.
While Gabriel Saa was looking for Andrade and Vega in Queens, Esperanza Saa received telephone calls in the apartment at 10 East 67th Street. She told Tollinchi that the calls were from Gabriel Saa and the owners of the cocaine, who were having trouble finding each other. Later, after Gabriel Saa had returned to East 67th Street from Queens, the Saas received two telephone calls from the owners of the cocaine, who reported that they were nearby in Manhattan. Esperanza Saa and Barona left, telling Tollinchi that they were going to pick up the cocaine.
At about 10:15 p.m., Andrade and Vega arrived at 10 East 67th Street, where they went inside and then left the building. Esperanza Saa announced that the cocaine was upstairs in an apartment on the third floor. Tollinchi, Robert, Barona, Gabriel Saa and the two undercover agents all proceeded to the third floor apartment. When the cocaine could not be located, Gabriel Saa told Barona to ask Esperanza Saa where it was. Either Barona or Esperanza Saa produced two packages wrapped in tape, which were placed on the dining-room table. The two undercover agents then tested the packages by piercing them with knives. According to the testimony of one of the undercover agents, Esperanza Saa provided one of the knives that was used. Another Government witness testified that Esperanza Saa was not present in the third-floor apartment after the arrival of the cocaine.
The undercover agents demanded that the "buyers" be allowed to take the cocaine outside to one of their cars to test it. When Gabriel Saa refused, the two undercover agents and Robert left. All of the defendants, along with Barona and Tollinchi, were arrested shortly afterward. Andrade and Vega were arrested in the orange Nova after driving evasively in Manhattan for several minutes.
Following the Government's case, Gabriel and Esperanza Saa rested without calling any witnesses. Andrade called his father, who testified that Andrade lived in Brooklyn and was a painter. He was precluded from testifying as to Andrade and Vega's whereabouts on April 24 or April 27. Andrade and Vega also called Barona, who testified that he had not seen Andrade or Vega at the time the crime was alleged to have taken place, and that although there had been talk about a drug transaction, no transaction had occurred.
Robert did not testify at the trial, and his real name was never disclosed. Tollinchi pleaded guilty to the conspiracy charge, cooperated with the Government and testified against the defendants.
A. Preclusion of Alibi Testimony
On June 9, 1987, approximately one month before the trial began, the United States Attorney's Office sent to counsel for the defendants certain discovery material enclosed with a letter requesting reciprocal discovery. The letter added:
In addition, in the event your client seeks to interpose an alibi defense or a defense based on mental disease, the Government requests written notice ...