Bruno appeals his conviction after a jury trial in the United States District Court for the Southern District of New York, Cedarbaum, J., on narcotics charges, claiming error in the court's evidentiary rulings and the grant of an additional peremptory challenge to the government. Affirmed.
Before: LUMBARD, MESKILL, and KEARSE, Circuit Judges.
Leonardo Bruno appeals from his conviction on narcotics charges entered in the Southern District of New York, Cedarbaum, J., on May 6, 1988, following a jury trial. Bruno seeks reversal and a new trial on five grounds. First, he contends that the court erroneously charged the jury that Bruno could be convicted on counts of using firearms in relation to drug trafficking, assaulting a federal official with a deadly weapon and attempting to murder a federal agent, as a conspirator who is liable for the foreseeable acts committed by his co-conspirators in furtherance of the conspiracy. Second, Bruno argues that the court, after having granted four additional peremptory challenges to the defendants, should not have granted the government one additional challenge without the defense's consent. Third, Bruno claims that he was unfairly prejudiced by the prosecution's failure to obey the court's ruling limiting the scope of its cross-examination concerning a prior arrest. Fourth, Bruno contends that the judge failed to rule on his motion for judgment of acquittal at the close of the government's case pursuant to Fed. R. Crim. P. 29(a). Finally, Bruno argues that the court failed to make explicit findings that there was sufficient evidence from which the jury could find that he was a member of the conspiracy prior to admitting evidence of hearsay statements and acts committed by alleged co-conspirators. We affirm.
Bruno and his co-defendants, Jose Rodriguez, Ramon Molina and Pedro Irizagri, were indicted and tried on six counts. Count One charged the defendants with conspiring to possess, with intent to distribute, approximately six kilograms of cocaine, 21 U.S.C. § 846. Count Two charged them with possessing, with intent to distribute, multi-kilogram quantities of cocaine, 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(C) and 18 U.S.C. § 2. Count Three charged them with use of firearms during drug trafficking, 18 U.S.C. §§ 924(c) and 2. Count Four was dismissed at the end of the government's case. Count Five charged the defendants with assaulting an agent of the Drug Enforcement Administration (DEA) with a deadly weapon, 18 U.S.C. §§ 111 and 2. Count Six charged them with attempted murder of a DEA agent, 18 U.S.C. §§ 111, 1114 and 2.
The jury convicted Bruno and Irizagri on Counts One, Two, Three and Five, but acquitted them on Count Six. Rodriguez was convicted on Counts One and Two, but was acquitted on Counts Three, Five, and Six. Molina was acquitted on all counts.
The government's evidence at trial consisted principally of the testimony of undercover and surveillance agents. Sergeant Lawrence Jonigan, an undercover agent employed by the New York State Police, testified that on July 6, 1987, he met a confidential informant in the Bronx who introduced him to defendant Rodriguez. The three met in Sergeant Jonigan's car, and the informant served as interpreter. Surveillance officers, including Detective Perretto, Detective Walsh, Special Agent Moran, and Detective Puello were nearby. In response to Jonigan's request for six kilograms of cocaine, Rodriguez quoted him a price of $23,000 per kilogram. After some negotiation, they agreed on $22,000 per kilogram to be delivered on the following day, July 7th, at the same location. Each would bring along a partner and Jonigan would have $132,000 in cash.
The next evening, Sergeant Jonigan, accompanied by Special Agent James Greenan of the DEA, met with Rodriguez and the informant in the Bronx. Jonigan showed Rodriguez a bag in his car trunk which he said contained $132,000. Agreeing not to count the money at that time, Rodriguez told Jonigan that he would conclude the deal in an hour at another location in the Bronx.
Later that night, at the agreed place, Rodriguez, accompanied by his brother, Juan Bautista, a/k/a "Jose Manuel Rodriguez," and by Ramon Molina, introduced Jonigan to Bautista, whom he called "his man." Bautista produced two cocaine samples and handed them to Jonigan.
Bautista informed Jonigan that, because his supplier did not want to meet Jonigan, only the informant would be permitted to pay the money and buy the drugs. Jonigan stated he would not do business under those terms and that he wanted to see the six kilograms himself before paying. After further negotiation, Bautista told Jonigan that the deal could not be consummated on Jonigan's terms until the following evening.
The next day, July 8th, the informant took Jonigan and Greenan to the Bronx to meet Bautista and Molina. Bautista said the transaction would be completed shortly and arranged a meeting at 188th Street and Webster Avenue in the Bronx at 9:00 p.m.
At the appointed time, the informant approached Jonigan and Greenan in their car on Webster Avenue and told them that Bautista had entered a building on the other side of the avenue and that Molina and Rodriguez were sitting in their car on 188th Street. A few minutes later, Bautista approached and told Jonigan that, before delivering the money, he would be allowed to see the cocaine in the apartment, where he would find only two other people, both unarmed.
Jonigan followed Bautista and the informant into the courtyard of an apartment complex at 373-375 E. 188th St., where they met Jose Morales. Morales stated that Jonigan would not be permitted to enter the building. When Jonigan threatened to call off the deal, Morales went into number 375 for a short time. Detective Puello saw Morales speak to one of the occupants of the building and rack a round of ammunition into an automatic pistol prior to returning to the courtyard where he instructed Jonigan, Bautista and the informant to follow him into number 373, to apartment 5B.
As Jonigan entered the apartment, Pedro Irizagri, standing in the kitchen doorway, pointed what appeared to be a machine gun at him. Bruno and two other men were standing in the living room with their right hands behind their backs. Morales then drew a silver-plated .32 automatic from his waistband and pointed it at Jonigan. Jonigan raised his hands, pulled down his pants and removed his shirt to show that he was unarmed.
Morales instructed Jonigan to sit down in the living room. When Jonigan asked to see the cocaine, Morales motioned with his gun for Bruno to go into the bedroom. Bruno returned with two sealed rectangular packages containing white powder and handed them to Jonigan. After examining them, Jonigan said that he did not think that six packages would amount to six kilograms. Morales then ordered Jonigan into the bedroom at gunpoint.
In the bedroom, Jonigan observed Bruno and another man kneeling by a long mirror, which was lying on the floor and covered with white powder. Behind them were a triple beam scale, four clear plastic bags that appeared to contain one kilogram of cocaine each and a shopping bag containing several kilogram size packages.
At Morales's instructions, Bruno handed Jonigan a kilogram package of cocaine. After weighing and inspecting it, Jonigan told Morales, who was pointing his gun at him all the while, that he was satisfied and was ready to get the $132,000 from Greenan in his car. When Morales advised him that he could not leave, Jonigan said Greenan would not release the money unless Jonigan himself was present. After consulting with various others in the apartment, Morales said that Jonigan could go, but the informant must remain. Jonigan refused. After further discussion with his partners, Morales finally agreed to allow Jonigan and the informant to leave, provided that Morales escort them and Bautista remain.
Bruno was still in the bedroom when the three men left. As he approached Greenan's car, Jonigan signalled the surveillance team that he had seen the cocaine. Greenan drove his car around the block and placed his service revolver in the bag which contained only $74,000. He then stopped in front of number 373, removed the bag from the trunk and followed Jonigan, Morales and the informant into the building.
As Morales pressed the entry buzzer, he suddenly swung around and lunged at Greenan. With his left hand he reached for the bag and with his right he pulled a 32 automatic pistol from his waistband. Greenan yelled "Police," and drew his gun from the bag. Morales fired and wounded Greenan, who returned the fire, hitting Morales and causing him to fall back against the wall of the vestibule. As he slid down the wall, Morales fired two more shots. When Greenan emptied his revolver and clicked off a dry round, Jonigan grabbed Morales's gun. Greenan and the informant lay wounded on the floor and Morales later died from his wounds.
As Jonigan climbed the stairs, he spotted Bautista just above the third floor landing. He yelled "Police, freeze," but Bautista spun around toward him, flashing what appeared to be a blue-finished handgun. Jonigan immediately fired one shot, killing Bautista, whose revolver fell over the railing and was never recovered.
Jonigan mounted the steps to the fifth floor, where he saw Bruno standing in the doorway of apartment 5B, holding a silver-finished handgun. Jonigan yelled "Police, freeze," but Bruno retreated into apartment 5B while raising his gun towards Jonigan. Jonigan at once fired three shells which hit the door frame as Bruno closed the door.
The surveillance team tried unsuccessfully to help Jonigan gain entry to the barricaded apartment. Jonigan remained by the door while Walsh, Moran and Baum climbed the stairs towards the roof and apprehended Irizagri in the stairwell. A ...