U.S. v. Diaz, s. 1134

• Decision Date: 29 June 1989
• Docket Number: Nos. 1134,1260 and 1261,D,s. 1134
• Parties: 28 Fed. R. Evid. Serv. 658 UNITED STATES of America, Appellee, v. Alfredo DIAZ, Eradio Perez, and Jose Alfanso Riano, Defendants-Appellants. ockets 87-1462, 87-1463 and 87-1464.
• Court: U.S. Court of Appeals — Second Circuit

Page 608

878 F.2d 608

28 Fed. R. Evid. Serv. 658

UNITED STATES of America, Appellee, v. Alfredo DIAZ, Eradio Perez, and Jose Alfanso Riano,

Defendants-Appellants.

Nos. 1134, 1260 and 1261, Dockets 87-1462, 87-1463 and 87-1464.

United States Court of Appeals,

Second Circuit.

Argued June 8, 1988.

Decided June 29, 1989.

Debra D. Newman, Asst. U.S. Atty. for the E.D.N.Y., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty. for the E.D.N.Y., Emily Berger, David C. James, Asst. U.S. Attys., Brooklyn, N.Y., of counsel), for appellee.

Barry E. Schulman, Brooklyn, N.Y. (Michael A. O'Connor, Doreen T. O'Connor, Schulman & Laifer, Brooklyn, N.Y., of counsel), for defendants-appellants Eradio Perez and Jose Alfanso Riano.

Joel B. Rudin, New York City (Mass & Rudin, of counsel), for defendant-appellant Alfredo Diaz.

Before VAN GRAAFEILAND and MAHONEY, Circuit Judges, and NEVAS, ^* District Judge.

MAHONEY, Circuit Judge:

Appeal from judgments of conviction entered in the United States District Court for the Eastern District of New York, Nicholas J. Tsoucalas, Judge, United States Court of International Trade, sitting by designation, after a jury trial of a one-count indictment charging defendants-appellants with conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1982). Defendants-appellants raise numerous issues on appeal. We consider herein their contentions that: (1) the district court erroneously admitted evidence concerning prior events allegedly probative of the charged conspiracy which was inflammatory, prejudicial and unconnected to defendants; (2) the district court erroneously admitted certain expert opinion testimony of agents of the Drug Enforcement Administration ("DEA"); and (3) in any event, the evidence was insufficient to sustain their convictions because it failed to establish defendants' knowing participation in a cocaine conspiracy.

Affirmed.

Background

The defendants were arrested on May 7, 1987. They claim error in the admission of evidence pertaining to certain events prior to that date. We shall therefore consider: (1) events prior to May 7, 1987; (2) the events of that day; and (3) certain aspects of the conduct of the trial. In view of the jury's verdict, we view the evidence in the light most favorable to the government, and all permissible inferences are construed in its favor. See, e.g., United States v. Chang An-Lo, 851 F.2d 547, 554 (2d Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 493, 102 L.Ed.2d 530 (1988); United States v. Grubczak, 793 F.2d 458, 463 (2d Cir.1986); United States v. Nersesian, 824 F.2d 1294, 1324 (2d Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 355, 98 L.Ed.2d 380 (1987).

A. Events Prior to May 7, 1989.

On February 20, 1987, DEA agents Michael Torretta and Raymond Mansolillo observed two men using a beeper at a public telephone on the corner of 47th Avenue and 195th Street in Queens, New York, New York (the "Phone"). The men looked at their beeper and then dialed a telephone number on the Phone, hung up and then received a return call. The interest of the agents was aroused because they were aware that narcotics traffickers commonly use beepers in conjunction with public telephones.

After concluding the telephone call, the men got into a car parked nearby and drove away, with the agents following. After proceeding approximately two blocks, the two men stopped their car, transferred two white plastic bags from the interior of their car to the trunk, and drove away. They then drove for approximately five blocks, squaring blocks. The agents then stopped the car.

Torretta and Mansolillo approached the car, identified themselves as DEA agents, and asked to search the trunk of the car. When one of the men opened the trunk in response to the agents' request, Torretta and Mansolillo discovered five kilograms of cocaine packaged in white plastic bags. The two men were then arrested.

Following this event, Agent Torretta continued periodic surveillance of the Phone. On April 1, 1987, Agent Torretta again saw two men placing beeper calls at the Phone. The two men then went to a nearby car and drove away. Agent Torretta followed them. They drove directly to a single family residence located at 46-18 190th Street, Queens (the "House"), less than three blocks away from the location where the February 20 arrest took place, and further in the direction in which the vehicle had been headed when stopped on February 20. Agent Torretta watched the two men enter the House and leave about forty-five minutes later carrying two white plastic bags which were filled with some unknown contents.

The two men placed the bags in the trunk of their car and drove to another nearby public telephone, with Agent Torretta still following. When they arrived at this phone, Agent Torretta saw a second car meet the car that he was following, but was unable to keep the two cars continually in view while he moved his vehicle into position to maintain his surveillance. When Torretta resumed his surveillance, he saw the two cars drive away separately.

Agent Torretta, now joined by Agent Mansolillo whom he had summoned for assistance, followed the car occupied by the two men who had carried the bags out of the House, and eventually halted that car. Upon request, the two men opened the trunk of the car, revealing that the two plastic bags they had earlier placed therein had been removed.

As a result of the events of April 1, DEA agents commenced conducting surveillance of the House. During that surveillance, in the latter part of April, 1987, Agent Mansolillo observed two men leave the House, proceed to the Phone, place a phone call, and return to the House.

B. The Events of May 7, 1987.

On the morning of May 7, 1987, Agents Torretta and Mansolillo were interviewing neighbors of the House in connection with their surveillance of that site. During the course of one interview, they noticed three men, later identified as the defendants, in a gray Chevrolet automobile that pulled up in front of the House. Upon noticing the agents looking at them, however, defendants drove on. The agents attempted unsuccessfully to follow them in the agents' own vehicle, which they then parked about a half block from the House. As they did so, they observed defendants returning to the House in the Chevrolet.

Diaz and Perez got out of the car and headed toward the House. Perez entered the House while Diaz stood on the front porch with an unidentified male. Riano remained by the car, opening its hood, appearing to the agents to be functioning as a lookout. Perez then came out of the house carrying a large cardboard box, which he placed in the trunk of the Chevrolet. Riano and Perez drove away in the Chevrolet, leaving Diaz behind.

Agents Torretta and Mansolillo followed Riano and Perez, who drove the Chevrolet in what the agents deemed to be a "surveillance conscious" manner, squaring blocks, travelling east and west on the same roads, and generally driving "around in circles." Riano finally parked the Chevrolet adjacent to the Cue Variety Store, located on Roosevelt Avenue, just west of Union Street, in Queens. Riano and Perez then entered the store. The agents called for assistance, and DEA agents Fred Geiger and Arthur Kerse joined the surveillance. For most of the next hour and a half, Riano and Perez remained in the Cue Variety Store. Various males came out of the store from time to time and looked up and down the street, appearing to the agents to be functioning as lookouts.

Riano and Perez then left the store and entered a card shop in the neighborhood. A few minutes later, the two men left the card shop, made a call on a public telephone, and walked to a nearby municipal parking lot on Union Street. Riano and Perez were joined there by another individual, who helped them jump start a gray Buick. Riano and Perez then departed in the Buick, with Torretta and Mansolillo following behind. Shortly thereafter, Riano and Perez were apprehended and arrested.

An ensuing search of the gray Chevrolet left in front of the Cue Variety Store discovered over $1,000,000 in cash contained in the cardboard box that earlier had been placed in the car's trunk outside the House. In addition, the DEA agents found in the Chevrolet's glove compartment a U.S. Customs receipt dated December 16, 1986 for a tractor trailer truck and $999,960 in United States currency (the "Customs Receipt").

In the meantime, Agent Gerald McAleer, who had been summoned to the 190th Street surveillance location, observed the activities of Diaz, who had remained at the House. McAleer saw Diaz leave the House carrying two large plastic bags. Diaz carried the bags to a parked car several blocks away. While Diaz was attempting to place the bags in the trunk of the car, McAleer approached Diaz and identified himself as a DEA agent. When McAleer looked into the opened plastic bags, he noticed in plain view a large amount of cash, later determined to be approximately $28,000 in small denominations. McAleer immediately placed Diaz under arrest, at which time McAleer discovered an additional $30,000 in $100 bills in the breast pocket of Diaz's jacket.

In addition, index cards were seized from Diaz with writing thereon which a government expert testified could constitute the calculation of broker's fees for sales of cocaine. A search was made of the House, resulting in the recovery of a red ledger which, according to the same government expert, apparently contained records of cocaine sales. The search also recovered a laboratory mask, protective gloves, plastic bags and tape, but neither that search nor a subsequent vacuum sweep of the House revealed any trace of cocaine. When Riano and Perez were arrested, the agents found in the Buick a roll of tape of the same color and brand as the tape used on the box recovered from the Chevrolet containing $1,000,000, and the tape found in the House. In addition, Riano had...