510 F.2d 287 (2nd Cir. 1975), 264275, United States v. Papadakis
|Citation:||510 F.2d 287|
|Party Name:||United States v. Papadakis|
|Case Date:||January 10, 1975|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued Oct. 24, 1974.
Certiorari Denied April 28, 1975.
[Copyrighted Material Omitted]
Joseph I. Stone, New York City, for defendant-appellant Papadakis.
Arnold E. Wallach, New York City, for defendant-appellant Novoa.
Lawrence S. Feld, Asst. U.S. Atty., S.D.N.Y. (Paul J. Curran, U.S. Atty., on the brief), for appellee United States.
Before WATERMAN, OAKES and GURFEIN, Circuit Judges.
GURFEIN, Circuit Judge:
Joseph Novoa and Demetrios Papadakis appeal from judgments of conviction entered following a jury verdict rendered after a 13-day trial before Judge Wyatt.
The jury found Novoa guilty under count one of the indictment of conspiracy to obstruct justice in violation of 18 U.S.C. Sec. 371, to commit narcotics offenses in violation of 21 U.S.C. Secs. 173, 174 [now repealed] and 18 U.S.C. Sec. 3,
and to obstruct communication of information to a federal investigator in violation of 18 U.:S.C. Sec. 1510. They also convicted him under count four of conspiracy to violate federal narcotics laws, 18 U.S.C. Sec. 371, and, under counts five through ten, of substantive violations of 21 U.S.C. Secs. 173, 174. 1
Papadakis was originally charged under count four with conspiring with Novoa and others to violate the narcotics laws, but the charge was dismissed by the court before the case was submitted to the jury. The jury found Papadakis guilty under count seven of violating 21 U.S.C. Secs. 173, 174; he was acquitted under count six, which charged him with the same offense on a different date. 2
Novoa was sentenced to a five year term imprisonment on count one to run concurrently with concurrent terms of ten years imprisonment on counts four through ten. Papadakis was sentenced to a term of five years imprisonment to a term of five years imprisonment to run concurrently with the consecutive five year terms of imprisonment which he is already serving for prior violations of the federal narcotics laws.
Appellants raise several different ground for reversal on this appeal. We affirm.
The Government's case was presented primarily through the testimony of three witnesses: Carl Aguiluz, a former co-defendant, who pleaded guilty to a lesser charge; and Salvador Boutureira, an admitted participant in the scheme. Viewing the evidence in the light most favorable to the Government, we find that the testimony of these and other witnesses revealed the following pattern of criminal conduct.
The "100 Kilo" Case
Late in the evening of April 14, while conducting surveillance in lower Manhattan,the three officers became suspicious of four persons, later identified as Emilio Diaz Gonzalez, Jose Luis Mulas, Jorge Rodriguez Arraya and Elena Risso, who were driving down Seventh Avenue, making sporadic stops along the way. The three detectives decided to follow the suspects' car, which eventually left lower Manhattan and proceeded up the West Side Highway, across the George Washington Bridge to the vicinity of Fort Lee, New Jersey. Near the Toll Gate Motyel in Fort Lee, the detectives stopped the suspects' car.
After a brief altercation involving the local police and the manager of the Motel where it turned out the suspects were staying, the three detectives returned to New York City with the four suspects. In the car, Aguiluz asked Gonzalez' production of three separate passports issued in three different names by three different countries, arrested him for falsifying documents. Aguiluz mentioned to Novoa and Daly that he feared the arrest was invalid, at which point Daly winked and said there was a gun beneath the seat of the suspects' car.
Having found a ground on which to arrest the suspects, the three detectives returned with them to the Sixth Precinct Station House,where the four were placed under arrest and locked in cells. On a ruse, Gonzalez obtained release
from his cell and access to his personal belongings. He grabbed a piece of paper, stuffed it in his mouth and began to eat it. Despite the efforts of Novoa, Daly and Aguiluz to stop him, he was successful in swallowing the paper.
The officers had reviewed the personal effects of the suspects several times, however, and, after examining the remaining papers, remembered that the swallowed paper had contained an address 210 W. 19th Street, Apartment 4-F. Leaving Novoa at the Station House, Aguiluz and Daly took keys found the suspects, went to the address noted, entered the apartment and searched it. They found two heavily locked closets which they could not open. They telephoned Novoa, who secured the aid of Detective John Kid, an expert in picking locks. When Kid had completed his task, the officers discovered that one closet contained a huge supply of what appeared to be heroin or cocaine, wrapped in South American newspapers, packaged in units of a kilo and a half-kilo. A field test showed that the contents were indeed narcotics of high purity; laboratory tests later showed that approximately 40 kilos of heroin and 60 kilos of cocaine had been seized from the apartment and turned over to the Property Clerk at the Police Department.
Not all of the seized narcotics was turned over, however. 4 While they were removing the packages from the closet, Daly suggested to Aguiluz, at a time when Kid was out of hearing, that they keep some narcotics for "flaking," that is, for planting on a person to create grounds for his arrest. Aguiluz agreed, and Daly placed five kilos--three of heroin and two of cocaine--in a small suitcase which he then placed in the trunk of his car. Novoa appeared at the apartment soon afterwards and was informed by his partners that they had set aside five kilos of narcotics for use in flaking. He said, "Fine."
It was then about 8:45 a.m. Aguiluz left the apartment to obtain a search warrant. After his return with the warrant, he Novoa, Daly, and other officers of the SIU met with the press at the apartment. Later in the day, after returning to the Sixth Precinct Station House, Novoa, Aguiluz, Daly, and a fourth SIU officer, Sergeant Gabriel Stefania, split among themselves $1200 in cash seized from the four arrested persons.
The Sale of Five Kilos of Narcotics by the Police Officers
About a week after the seizure, Aguiluz asked Novoa and Daly whether he could retain physical possession of the narcotics which they had set aside. They agreed, and Daly transferred the suitcase with the five kilos of heroin and cocaine to Aguiluz in Novoa's presence. Several weeks later, the three detectives met to decide what to do with the drugs. After some discussion, they decided to attempt to sell them. Aguiluz recommended that they use his brother-in-law, Boutureira, as an intermediary. Novoa and Daly agreed.
Soon afterwards, Aguiluz took a satchel containing the five kilos to the apartment of his brother-in-law in Greenwich Village. Boutureira agreed to try to sell the drugs. Boutureira then spoke with Ramos, owner of the Cafe Madrid. Ramos, after being given some samples, agreed to sell the drugs. It was agreed that Rmas would try to get $12,500 per kilo of heroin and $9,500 per kilo of cocaine. Ramos was to receive a commission of $500 per kilo sold.
Shortly thereafter, Ramos spoke with appellant Papadakis about a possible purchase, giving him a heroin sample previously supplied by Bouturira. Papadakis agreed to purchase a kilo of heroin for $12,500. The first sale was aborted
when Papadakis failed to bring enough cash to pay for the heroin he had agreed to purchase, but on the next day, Papadakis, and an associate, Elissa Possas, 5 brought enough money. They gave the money to Ramos. He called Boutureira, who arrived at the Cafe and was shown the money. He was not introduced to Papadakis or Possas, but both were pointed out to him. Earlier, Boutureira had hidden a kilo of heroin in a brown paper bag under a board in a vacant lot at 13th Street and Eighth Avenue. Upon seeing that the money was all there, Boutureira told Ramos where the kilo was located and Ramos passed the information to Papadakis, who in turned signalled to a man standing outside the Cafe Madrid in a black leather jacket, who talked to Papadakis, and then left.
Boutureira had informed Novoa, Daly and Aguiluz of the scenario and the three were watching the Cafe Madrid. After they had seen the black-jacketed man enter and leave the Cafe, the three drove to a building opposite the parking lot where the heroin had been hidden. The black-jacketed man arrived on a motorcycle, found and took the heroin, left the lot, and threw the package into a taxi which had pulled up just as he was emerging from the lot. Both the taxi and the motorcycle then drove away. Soon afterwards, Possas received a telephone call at the Cafe after which she told Ramos that everything was all right. After Possas and Papadakis left the Cafe, Ramos turned the money over to Boutureira, less his $500 commission.
Boutureira then met Novoa, Daly and Aguiluz and the four proceeded to the Hotel Taft where they divided equally the $12,000 in proceeds from the sale of the kilo of heroin.
A few days later, Papadakis told Ramos that he would like to buy another kilo of heroin. Ramos contacted Boutureira, who, this time, placed the kilo in a subway locket at 14th Street and Eighth Avenue. After going to the Cafe, Boutureira learned that Possas and Papadakis had not brought enough money. He refused to make the sale that day, but the next day he accepted $11,000 upon Ramos' assurance that the balance would be...
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