Appeal from a judgment of conviction entered on a jury verdict in the United States District Court for the Eastern District of New York, Raymond J. Dearie, Judge, on one count of conspiracy to possess with intent to distribute, and to distribute, in excess of one kilogram of heroin, and one count of attempted possession with intent to distribute in excess of one kilogram of heroin. Appellant claims: (1) that the trial court erred in submitting a conscious avoidance charge to the jury; (2) that the government improperly elicited opinion testimony from an agent of the Drug Enforcement Administration and improperly exploited this testimony in summation; and (3) that the selection of the petit jury by a magistrate violated appellant's constitutional rights. We affirm. Petition for rehearing denied. Judge Altimari dissents from the denial of rehearing in a separate opinion.
Altimari and Mahoney, Circuit Judges, and Korman,*fn* District Judge.
Mang Sun Wong appeals from a judgment of conviction, entered on a jury verdict in the United States District Court for the Eastern District of New York, Raymond J. Dearie, Judge, of conspiracy to possess with intent to distribute, and to distribute, in excess of one kilogram of heroin in violation of 21 U.S.C. §§ 841(a) (1982), 841(b)(1)(A)(i) (1982) and 846 (1982); and attempted possession with intent to distribute in excess of one kilogram of heroin in violation of the above statutes and 18 U.S.C. § 2 (1982). Wong was sentenced to two concurrent ten year terms of imprisonment.
Wong raises the following claims on appeal: (1) that the trial court erred in submitting a conscious avoidance charge to the jury; (2) that the government improperly elicited opinion testimony from an agent of the Drug Enforcement Administration and improperly exploited this testimony in summation; and (3) that the selection of the petit jury by a magistrate violated Wong's constitutional rights.
On December 31, 1986, agents of the Drug Enforcement Administration ("DEA") arrested Mario Sousa Silva at San Francisco International Airport after a routine United States Customs Service examination revealed that Silva had approximately 9 1/2 pounds of heroin secreted behind false walls in two suitcases. Silva had stopped in San Francisco, en route to New York, on a flight from Hong Kong. After his arrest, Silva informed the DEA agents that he had received the heroin in Hong Kong from his supplier, Luis Sousa. Silva further stated that Sousa had instructed Silva to bring the heroin to New York, check into the Sheraton Hotel near LaGuardia Airport, and call Sousa, who would then arrange for a person to pick up the heroin at Silva's hotel room. Silva agreed to assist the agents in a "controlled delivery" of the heroin in New York.
Silva then flew to New York accompanied by two DEA agents. Upon arrival in New York early on the morning of January 1, 1987, DEA agents replaced the 9 1/2 pounds of heroin in the suitcase with white flour and a representative sample of the original heroin. DEA agents then took Silva to the Sheraton LaGuardia Hotel (the "Sheraton"), where he checked into Room 221. The agents checked into an adjoining room and wired Silva's room for sound. In accordance with his instructions, Silva then telephoned Sousa in Hong Kong. Sousa advised Silva that Silva would be contacted about the packages that evening. At approximately 7:30 p.m., Silva received a telephone call from a man who spoke English with a Chinese accent, and stated that he would come to the hotel shortly. The weather that evening was extremely inclement, with heavy snow, rain and ice. Vehicle traffic was scarce throughout the day and evening.
At approximately 9:30 p.m., surveillance agents observed Mang Sun Wong drive a station wagon, and Chi Hong Lam*fn1 drive an Oldsmobile, to a corner approximately two blocks from the Sheraton. The two vehicles stopped for approximately two minutes in a "side-by-side" fashion, and Lam and Wong appeared to speak briefly.
Lam then drove to the parking lot of the Sheraton, and Wong followed to the entrance of the lot, hesitated there, then backed out and drove to a side street approximately two blocks from the hotel. Wong remained parked on this side street for several minutes, with the headlights of his vehicle extinguished and its engine running. Wong then drove to another location a few blocks away and again parked the station wagon, extinguished its headlights and kept the engine running.
Meanwhile, Lam entered the Sheraton and proceeded to Silva's room, where Lam took the two suitcases containing the sham heroin and gave Silva a brown paper bag containing $13,000 in United States currency, all in $20 denominations. Lam then left the hotel, went to the hotel parking lot and placed the two suitcases in the trunk of the Oldsmobile.
Lam then drove the Oldsmobile from the Sheraton parking lot to the location where Wong was waiting in the station wagon, and slowly passed Wong's vehicle. Wong then followed Lam, and the two men drove in an erratic manner for the next several minutes, repeatedly "squaring" blocks and speeding up and slowing down, despite the hazardous weather conditions. Lam and Wong then moved their cars next to each other and spoke briefly. They then separated and drove in opposite directions. Lam drove to a nearby McDonald's restaurant and waited for fifteen minutes in the parking lot. Wong also drove to the McDonald's, hesitated, then drove approximately a block away and stopped briefly. Wong then entered the Brooklyn-Queens Expressway and drove into Manhattan.
Soon thereafter, Lam left the McDonald's parking lot and also drove into Manhattan. Lam made two calls from public telephones before parking and entering an apartment house in lower Manhattan, leaving the sham heroin in the trunk of the Oldsmobile, which DEA agents kept under surveillance.
Meanwhile, DEA agents followed Wong as he drove into lower Manhattan. After squaring several blocks there, Wong drove through the Holland Tunnel into New Jersey, where he headed south on the New Jersey Turnpike. Wong was eventually stopped and arrested as he neared Trenton, New Jersey. In a consent search of Wong's automobile, DEA agents recovered $12,280 in United States currency, all in twenty dollar bills, in a brown paper bag in the front seat of the car. The car also contained large quantities of raw fish, shrimp and vegetables. DEA agents subsequently found $2,143 in cash on Wong's person.
After being advised of his rights, Wong told DEA agent Albert LaMagna that he had been to Chinatown, purchased groceries there for his sister's restaurant in Dover, Delaware, and was on his way to Dover to deliver the groceries. When asked if he had been near the LaGuardia Airport earlier that evening, Wong told LaMagna that he had accompanied Lam,*fn2 who was an acquaintance, to the vicinity of the airport. Wong explained that Lam had asked Wong to accompany Lam to the Sheraton, where Lam was meeting an unidentified friend. When questioned about the money in his possession, Wong stated that Lam had asked Wong to hold the money at the time Lam asked Wong to accompany Lam to the Sheraton, and Wong had agreed to do so, although Lam gave Wong no instructions concerning the disposition of the money. Wong also stated that after Lam had left the Sheraton, Lam had pulled Wong to the side of the road and told him to go home because they were being followed.*fn3
The following exchange took place during LaMagna's cross examination by defense counsel:
Q Are you contending the $2,065 was used in a drug transaction, Officer?
A The 2,000 something found on Mr. Wong?
A I am not can tending [sic] that that particular money was used in a drug transaction.
Now, the money found in the paper bag or on the front seat, wherever your officers say it was, are you contending that that money was used in the drug transaction that took place in the Sheraton LaGuardia Hotel?
A I am not contending that it was used in the drug transaction which took place. I am contending --
Ms. PALMER [prosecutor]: Objection, your Honor. May he finished [sic] the answer to the question?
THE COURT: He answered the question. Go ahead. the next question.
Q And in fact, at the time that money, that money in the brown paper bag, whatever, was found on Mr. Wong down by Exit 8 on the New Jersey turnpike, the drug transaction in the Sheraton LaGuardia Hotel had long been completed, hadn't it, Officer?
A It depends on the definition of "long". If you are saying --
Q Officer, at the time that you took that money off Wong had money and drugs already been previously exchanged between Lam and Socia (ph) in the Sheraton Hotel?