15 F.3d 225 (2nd Cir. 1994), 286, United States v. Sureff

Docket Nº:286, Docket 93-1279.
Citation:15 F.3d 225
Party Name:UNITED STATES of America, Appellee, v. Paul SUREFF and Michael Cardone, Defendants, Maritza Metral, Defendant-Appellant.
Case Date:January 13, 1994
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 225

15 F.3d 225 (2nd Cir. 1994)

UNITED STATES of America, Appellee,


Paul SUREFF and Michael Cardone, Defendants,

Maritza Metral, Defendant-Appellant.

No. 286, Docket 93-1279.

United States Court of Appeals, Second Circuit

January 13, 1994

Argued Sept. 23, 1993.

Page 226

Michael T. Cornacchia, Assistant United States Attorney, Brooklyn, New York (Zachary Carter, United States Attorney for the Eastern District of New York, Susan Corkery, Assistant United States Attorney, Brooklyn, New York, of counsel), for appellee.

Edward P. Jenks, Mineola, New York, for defendant-appellant.

Before: MESKILL, KEARSE, and WINTER, Circuit Judges.

WINTER, Circuit Judge:

Maritza Metral appeals from her conviction by a jury before Judge Spatt on one count of conspiracy to distribute and possess with intent to distribute a substance containing cocaine. 1 See 21 U.S.C. Secs. 841(b)(1)(C),

Page 227

846 (1988). Metral challenges her conviction on two grounds. First, she maintains that the government's evidence was insufficient to support her conviction. This challenge is based on the absence of direct, in contrast to circumstantial, evidence that Metral was dealing in cocaine. Second, she contends that the government's proof was of multiple conspiracies rather than the single conspiracy alleged in the indictment. We affirm.

  1. Sufficiency of the Evidence

    The evidence against Metral, which must be viewed in the light most favorable to the government, was entirely circumstantial. It consisted of: (i) taped telephone conversations using coded language; (ii) surveillance that disclosed suspicious activity consistent with cocaine dealing; and (iii) a false exculpatory statement by a coconspirator.

    The evidence, which did not include a seizure of narcotics, an explicit reference to cocaine by Metral or a coconspirator, or direct testimony as to drug transactions, was as follows. The government began a seven-month investigation of Metral that involved telephone taps on her residence and on her real estate business, Raysun Enterprises, located in Queens. The pertinent telephone conversations involved discussions between Metral and Paul Sureff and Metral and Michael Cardone.

    During the taped telephone conversations, Metral and the others discussed various items in disjointed and occasionally incomprehensible fashion. These items included "tickets," "the man," "real estate taxes," "cars," "houses," "papers," "licenses," "catering," "seafood platters," "the bank," "paperwork," "three-star meals," and "the rent." These terms were often connected with disputes over prices to third parties for the commodity under discussion.

    The taped conversations reflected that the disputes had a potential for violence. For example, after complaining that "I can't put nothing together," Sureff confided to Metral, "That nigger motherfucker.... I'm gonna fucking put a cap through his head."

    At Metral's trial, the government called FBI Special Agent Kent Paulin, a racketeering records examiner. Paulin had examined and opined on coded conversations in 250 cases and had been qualified as an expert in cryptanalysis 16 times previously in state and federal courts. Paulin testified that in his opinion the taped conversations concerned the distribution of cocaine. Specifically, Paulin testified that Metral and her coconspirators sought to sell two to three kilograms of cocaine for prices ranging from $23,000 to $27,500 per kilogram. He further testified that the "I can't put nothing together" conversation involved a frustrated drug transaction.

    The government also called Robert Gates, a member of a joint state-federal Drug Enforcement Agency Task Force. Gates had nine years of experience in investigating cocaine trafficking and had participated in more than 300 investigations. Gates identified the various individuals on the tapes. He also testified as to the common methods of packaging of cocaine: zip-lock bags for eight ounces or less, brick-shape wrapped in tape or foil for a kilogram. Finally, he testified that he never heard cocaine traffickers refer to the narcotic by its name and that places where kilogram units of cocaine are stored and sold are sometimes referred to by...

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