U.S. v. Brito

• Citation: 907 F.2d 392
• Decision Date: 29 June 1990
• Docket Number: 1356,D,Nos. 1165,s. 1165
• Parties: UNITED STATES of America, Appellee, v. BRITO, et al., Defendants. Appeal of Vincente CARHUAPOMA, a/k/a "Vincente Carhuapoma Hartley", and German Salcedo, Defendants. ockets 89-1554, 89-1565.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 392

907 F.2d 392

UNITED STATES of America, Appellee, v. BRITO, et al., Defendants.

Appeal of Vincente CARHUAPOMA, a/k/a "Vincente Carhuapoma

Hartley", and German Salcedo, Defendants.

Nos. 1165, 1356, Dockets 89-1554, 89-1565.

United States Court of Appeals,

Second Circuit.

Argued May 18, 1990.

Decided June 29, 1990.

Mark B. Gombiner, The Legal Aid Society, Federal Defender Services Appeals Unit, New York City, for appellant Carhuapoma.

Edward T. McCormack, Garrison, N.Y., for appellant Salcedo.

Martin Klotz, New York City, Asst. U.S. Atty., S.D.N.Y. (Otto G. Obermaier, U.S. Atty., Kerri Martin Bartlett, Asst. U.S. Atty., of counsel), for appellee.

Before OAKES, Chief Judge, PIERCE and PRATT, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

Defendants German Salcedo and Vincente Carhuapoma appeal from judgments of conviction entered against them in the United States District Court for the Southern District of New York, Robert J. Ward, Judge, arising from their participation in narcotics trafficking in New York City.

Among their arguments, defendants claim a misuse of the grand jury process by the office of the United States Attorney for the Southern District of New York. Although this issue is troubling, we affirm the convictions because defendants have suffered no prejudice from the prosecutor's conduct before the grand jury, and because their other claims lack merit.

BACKGROUND

On July 14, 1988, German Salcedo and Victor Brito, a codefendant, were delivering mattresses in a truck in New York City. In the course of their deliveries, they parked the truck, and Brito entered a restaurant where he negotiated a deal to sell four kilograms of cocaine to two informants, Miguel and Eddie. Later that afternoon, Salcedo and Brito again parked the truck at a pre-arranged location in the Bronx, and Brito confirmed with Miguel that the proposed sale would be completed at Brito's nearby apartment. Miguel refused to go to Brito's apartment until he had seen the cocaine, but he agreed to wait in the lobby of the building for Brito to bring it down. Salcedo had already gone up to the apartment, and Brito followed him shortly thereafter.

A few minutes later, accompanied by Vincente Carhuapoma who was carrying a paper bag, Brito returned to the lobby, took the bag from Carhuapoma, and gave it to Miguel to inspect. It contained only one kilogram of cocaine, and Carhuapoma explained that the rest of it was upstairs in Brito's apartment. Miguel told Brito to get the money for the deal from Eddie who was waiting outside. Once outside, Brito was arrested. Carhuapoma was then arrested in the lobby while holding the bag. Drug enforcement agents next proceeded to Brito's apartment where they arrested Salcedo and found a triple-beam scale and a gun. The agents retrieved a shopping bag containing three kilograms of cocaine from the pavement beneath an open window in Brito's apartment.

Brito, Salcedo, and Carhuapoma were charged with conspiracy to distribute cocaine, 21 U.S.C. Sec. 846, and possessing with intent to distribute four kilograms of cocaine, 21 U.S.C. Secs. 841(a)(1), (b)(1)(B). Brito was also charged with using and possessing a firearm during a drug trafficking offense, 18 U.S.C. Sec. 924(c); he pled guilty to the conspiracy and the weapons charges, was sentenced, and does not appeal here.

After trial, Salcedo was convicted on both charges and sentenced to seven years in prison with four years of supervised release. Carhuapoma was convicted only of possession and sentenced to five years in prison with four years of supervised release. Both appeal.

DISCUSSION

Salcedo and Carhuapoma seek reversal and dismissal of their indictments because of prosecutorial misconduct before the grand jury. In particular, Carhuapoma claims that the prosecutor misused the grand jury process first by obtaining the indictments solely on the basis of hearsay and later by preventing him from gaining access to grand jury material. Salcedo argues in addition that the prosecutor misused the grand jury by presenting testimony solely for the purpose of "locking in" a witness's testimony. Salcedo also contends that the evidence against him was insufficient for conviction, that the trial court erred in charging the jury on conscious avoidance, and that other errors were committed.

A. Misuse of the Grand Jury

Historically, the grand jury has "serve[d] the invaluable function in our society of standing between the accuser and the accused". Wood v. Georgia, 370 U.S. 375, 390, 82 S.Ct. 1364, 1373, 8 L.Ed.2d 569 (1962). It "provide[s] a fair method for instituting criminal proceedings against persons believed to have committed crimes", Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956), by assembling a group of citizens to assess "the likelihood of prosecutorial success" and to protect the innocent from unwarranted prosecution. United States v. Umans, 368 F.2d 725, 730 (2d Cir.1966). Despite the "high place [the grand jury holds] as an instrument of justice", Costello, 350 U.S. at 362, 76 S.Ct. at 408, the social costs of dismissing an indictment because of an imperfect grand jury proceeding are simply too high to accept when the defendant has been convicted after a full and fair trial and no harm has been done. United States v. Mechanik, 475 U.S. 66, 72-73, 106 S.Ct. 938, 942-43, 89 L.Ed.2d 50 (1986); see Bank of Nova Scotia v. United States, 487 U.S. 250, 254-55, 108 S.Ct. 2369, 2373-74, 101 L.Ed.2d 228 (1988).

Even so, pursuant to our supervisory power, we may dismiss an indictment for prosecutorial misconduct if the grand jury was misled or misinformed, United States v. Hogan, 712 F.2d 757, 761 (2d Cir.1983); United States v. Estepa, 471 F.2d 1132, 1136 (2d Cir.1972); see Nova Scotia, 487 U.S. at 256, 108 S.Ct. at 2374 (" 'grave doubt' that the decision to indict was free from the substantial influence of [the misconduct]"), or possibly if there is "a history of prosecutorial misconduct, spanning several cases, that is so systematic and pervasive as to raise a substantial and serious question about the fundamental fairness of the process". Nova Scotia, 487 U.S. at 259, 108 S.Ct. at 2376.

Carhuapoma asks us to exercise our supervisory power, reverse his conviction, and dismiss his indictment because of prosecutorial misuse of the grand jury, claiming that his indictment was merely one of a series of indictments obtained through the government's policy of using a single witness to testify in grand jury proceedings. In particular, he asserts that his indictment was based solely on hearsay testimony given by an agent having no personal knowledge of the alleged acts; that the grand jury was never clearly informed that the agent's testimony was hearsay; and that the prosecutor, herself, was the "true" witness because the agent's testimony was presented through leading questions. He contends that the single-witness policy undermines the grand jury process, prevents the grand jurors from evaluating the credibility of witnesses and the strength of evidence, and shields the government's trial witnesses from cross examination based on their grand jury testimony.

The government admits to a policy of using a single witness before the grand jury in narcotics cases where the defendant is already under arrest. According to the government, the practice is simply an efficient and effective means of obtaining indictments within the required ten days of arrest, particularly because the Narcotics Special Grand Jury meets only twice a week. Thus, the government explains, the practice of presenting evidence through a single witness, usually the case agent, provides As to Carhuapoma in particular, the government admits that it presented only hearsay evidence to the grand jury. It explains that the case agent was unavailable to testify at the scheduled time, so another agent, who had worked on the case and had some direct knowledge of Salcedo's participation, was used; that the grand jurors were warned, directly prior to the agent's testimony about Carhuapoma, that his testimony was hearsay; that the agent never represented to the grand jury that he had personal knowledge of Carhuapoma's conduct; and that the prosecutor reminded the grand jury that it could bring in eye witnesses if it so desired.

the best information quickly and accurately to the grand jury.

As we see it, there is a great deal to criticize in the government's handling of this grand jury proceeding. The single-witness policy routinely relies on hearsay, producing " 'evidence' which appears smooth, well integrated and consistent", making even weak cases appear strong. United States v. Arcuri, 282 F.Supp. 347, 349 (E.D.N.Y.), aff'd, 405 F.2d 691 (2d Cir.1968), cert. denied, 395 U.S. 913, 89 S.Ct. 1760, 23 L.Ed.2d 227 (1969). It also "prevents the defendant from utilizing grand jury testimony in cross-examining witnesses who will testify at trial". Id. at 349-50.

Moreover, contrary to the government's own standard practice, it was not the case agent who testified before this grand jury. The agent who did testify had little personal knowledge of the actions of any of the defendants; no good reason was offered for the case agent's absence; and the case agent could not recall why he did not testify. In addition, the prosecutor presented many of the details of the case in the form of leading questions, while the testifying agent merely confirmed those details by answering "yes". Furthermore, prior to presenting the evidence against Carhuapoma, the prosecutor...