U.S. v. Torres

• Citation: 503 F.2d 1120
• Decision Date: 08 October 1974
• Docket Number: No. 1238,D,1238
• Parties: UNITED STATES of America, Appellee, v. Wilson TORRES, Appellant. ocket 74-1698.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 1120

503 F.2d 1120

UNITED STATES of America, Appellee, v. Wilson TORRES, Appellant.

No. 1238, Docket 74-1698.

United States Court of Appeals, Second Circuit.

Argued Aug. 15, 1974.

Decided Oct. 8, 1974.

Gary P. Naftalis, New York City, for appellant.

David A. Cutner, Asst. U.S. Atty. (Paul J. Curran, U.S. Atty. for the S.D. of N.Y.; John D. Gordan III, Asst. U.S. Atty. of counsel), for appellee.

Before OAKES, Circuit Judge, FRANKEL and KELLEHER, District Judges. ^*

OAKES, Circuit Judge:

This appeal is from a heroin-distribution conspiracy conviction, 21 U.S.C. 812, 841(a)(s), 841(b)(1)(A) and 846. ¹ Appellant principally claims that the evidence was insufficient because his involvement was demonstrated only as to a 'single act,' and that his trial was unfair in that the Government was improperly permitted to impeach a witness with his own prior inconsistent statement and by using an assistant United States attorney as a witness, an error which was compounded in the prosecutor's summation. While we disagree on the sufficiency question, we agree that there was reversible error as to the impeachment of the witness, Ortiz. The opinion will also refer briefly, for retrial purposes, to the third point urged by appellant relating to the testimony of the Government's principal witness, Jose Guzman, at a prior trial.

Guzman, an undercover New York City police detective, negotiated on January 11, 1972, with Jose Sanjurjo ('Jose') for the purchase of an ounce of heroin for $1,000. The deal was consummated seven days later at the same location at which the preliminary negotiations had taken place, 121st Street and Second Avenue. By prearrangement between Sanjurjo and Guzman, codefendant Ortiz, after emerging from a club at 2353 Second Avenue, gave Guzman a package containing the heroin on the street and received the cash in the hallway at 2353. Appellant Torres is not demonstrated to have had any connection with this January transaction.

On February 14, 1972, Guzman returned to the club and spoke with Ortiz about purchasing an eighth of a kilogram of heroin. Because Jose was supposedly in Puerto Rico, Guzman was to return later that evening to complete the sale with a close relative of Jose, Jesus Sanjurjo ('Jesus'). Guzman did return and Ortiz joined him in his car. Jesus Sanjurjo came to the car, and a deal was made at $3,600. Guzman said he wanted to speak to Jose before the sale was completed. Jesus went off in a white car only to return to say that Jose's instructions were to deal with him, Jesus. Guzman insisted, however, and Jesus went off again, returning to tell Guzman that Jose-- by now plainly not in Puerto Rico-- would see him around the corner at 120th Street.

Guzman walked down Second Avenue, turned the corner, and saw the white car which Jesus had been driving, Jose standing next to it and appellant Torres in it. Jose said he would complete the sale on this occasion but future dealings were to be with Jesus. Guzman went back to his own car where Ortiz and his wife, Lillian, were waiting. Guzman was told to drive with Lillian to 100th Street and First Avenue, and he did so followed by the white car containing Jesus and Torres. There Torres got into Guzman's car and told him to drive back to 120th Street and First Avenue where Torres said he would pick up the 'package' or the 'material.' Because the heroin was a large amount, it was explained, the 'connection' had to protect himself and Jesus would follow them to make sure the police were not behind.

At 120th Street and First Avenue, Lillian and Torres left Guzman's car, Torres saying he would bring the 'package.' Lillian returned shortly and drove with Guzman to 96th Street and Second Avenue, Torres and the others trailing in the white car. Guzman parked. Torres again appeared to say he was going to bring the package; Torres and Lillian left and after a half-hour wait no one appeared. The sale was not completed.

Eight days later Guzman tried again to negotiate a sale with Jesus after motioning him from the white car in which he and Torres were sitting in front of the club at 2353 Second Avenue. In Torres' hearing Jesus Sanjurjo negotiated for Guzman's purchase for an ounce of heroin. When Guzman returned that evening as directed no one appeared, so that the third sale was likewise not completed. Guzman's and the others' maneuvers had been under surveillance at all material times.

On the question of sufficiency, appellant argues that the 'single act' of Torres agreeing to deliver the February 14 heroin was insufficient to draw him into the broader conspiracy to violate the narcotics laws that was charged. He relies upon a line of cases in this circuit exemplified by United States v. DeNoia, 451 F.2d 979, 981 (2d Cir. 1971); United States v. Aviles, 274 F.2d 179, 190 (2d Cir.), cert. denied, 362 U.S. 974, 80 S.Ct. 1057, 4 L.Ed.2d 1010 (1960); United States v. Stromberg, 268 F.2d 256, 267 (2d Cir.), cert. denied, 361 U.S. 863, 80 S.Ct. 119, 4 L.Ed.2d 102 (1959), and United States v. Reina, 242 F.2d 302, 306 (2d Cir.), cert. denied, 354 U.S. 913, 77 S.Ct. 1294, 1 L.Ed.2d 1427 (1957). These cases all involve large, multiparty conspiracies. Their teaching is that absent proof of knowledge of the broader conspiracy, a single act such as delivery of the drugs (DeNoia; Stromberg) or actual sale (Reina) or purchase (Aviles) is insufficient evidence from which to draw an inference that a defendant knew about or acquiesced in the larger conspiracy.

Appellant's line of cases, however, recognizes that a single act may be 'sufficient for an inference' that a given defendant 'was involved in a criminal enterprise of substantial scope, which was likely to involve other persons.' United States v. DeNoia, 451 F.2d at 981. Where the 'single act' is such as to justify an inference of knowledge of the broader conspiracy, that is sufficient. See, e.g., United States v. D'Amato, 493 F.2d 359, 365 (2d Cir.), petition for cert. filed, 43 U.S.L.W. 3002 (U.S. Apr. 11, 1974) (No. 73-1527); United States v. Barrera, 486 F.2d 333, 337 (2d Cir. 1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1944, 40 L.Ed.2d 291; United States v. Pui Kan Lam, 483 F.2d 1202, 1207-1208 (2d Cir. 1973), cert. denied, 415 U.S. 984, 94 S.Ct. 1578, 39 L.Ed.2d 881 (U.S. Mar. 19, 1974) (No. 73-5714); United States v. Calabro, 449 F.2d 885, 892 (2d Cir. 1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 728, 30 L.Ed.2d 801, 405 U.S. 928, 92 S.Ct. 978, 30 L.Ed.2d 801 (1972). See also United States v. Terrell, 474 F.2d 872, 875-876 (2d Cir. 1973).

The 'single act' or single transaction in each of the appellant's cases was only a minor phase of a large, multiparty ring conspiracy. See, e.g., United States v. Aviles, 274 F.2d at 182-188. Here the alleged conspiracy itself was much less broad, involving only four known parties, one transaction and two attempted sales occurring in a three month period. In a conspiracy of small scope, such as this one, the evidentiary value of a 'single act' in inferring knowledge, particularly when, as here, the 'act' included statements by the defendant indicating his knowledge of the conspiracy and the 'act' was one in which all the coconspirators were involved, is correspondingly greater than it would be in a broad conspiracy: the single act or transaction forms a larger proportion of the entire scheme. Thus, to speak of a 'single act' is misleading; rather it is the qualitative nature of the act or acts constituting the single transaction (purchase, delivery, or the like) viewed in the context of the entire conspiracy which will determine whether an inference can be drawn as to the actor's knowledge of the scope of the conspiracy. Indeed, Aviles recognized this when then Chief Judge Lumbard speaking for the court said, 'Thus, when two men join together to commit a single robbery, one may infer from their common participation in the robbery that they have conspired to commit the robbery.' 274 F.2d at 189. Thus conduct consisting only of involvement in a single transaction may nevertheless be treated as rationally permitting the inference of knowledge of the broader conspiracy where the single act itself shows so much familiarity with or high-level participation in the overall conspiracy as to be in and of itself indicative of the broader conspiracy. See United States v. Aviles, 274 F.2d at 190; United States v. Agueci, 310 F.2d 817, 836 (2d Cir. 1962), cert. denied, 372 U.S. 959, 83 S.Ct. 1013, 10 L.Ed.2d 11 (1963).

Appellant Torres was intimately connected with the February 14 transaction and besides participating in it until it aborted, was in Jesus Sanjurjo's car when Guzman approached it to speak with Jose about dealing with Jesus in the future. Torres rode in Guzman's car and told him to drive back to the initial meeting spot at 120th Street and First Avenue where Torres said he would pick up the 'package' of heroin. He was in the car when either he or Lillian explained that the 'connection' must be protected. Torres trailed Lillian and Guzman on their final trip down Second Avenue. Beyond this, Torres was in the white car at 2353 Second Avenue when he heard Jesus negotiate with Guzman for the purchase of an ounce of heroin on February 22.

Of course, mere presence at a site where a narcotics sale is planned but not consummated is insufficient to support a conspiracy conviction where there is no evidence that the purpose of the meeting is known to the alleged conspirator. See United States v. Cirillo, 499 F.2d 872 (2d Cir. 1974). Here, however, there was actual knowledge on the part of the appellant that a heroin sale was about to take place. In the scope of the Sanjurjo-Ortiz operation, Torres was willingly taking a leading role in the attempted completion of the February 14 transaction. ² We therefore think the evidence was sufficient.

We reverse the conviction, however, as a result of the cumulative effect of three errors. The Government called as a witness ...