U.S. v. Alfonso-Perez, ALFONSO-PERE

• Decision Date: 17 May 1976
• Docket Number: ALFONSO-PERE,No. 864,A,D,864
• Citation: 535 F.2d 1362
• Parties: UNITED STATES of America, Appellee, v. Oswaldoppellant. ocket 75-1395.
• Court: U.S. Court of Appeals — Second Circuit

Page 1362

535 F.2d 1362

UNITED STATES of America, Appellee, v. Oswaldo ALFONSO-PEREZ, Appellant.

No. 864, Docket 75-1395.

United States Court of Appeals, Second Circuit.

Argued April 12, 1976.

Decided May 17, 1976.

Joseph Beeler, Miami, Fla. (Albert J. Krieger, New York City, on the brief), for appellant.

Bernard J. Fried, Asst. U. S. Atty., David G. Trager, U. S. Atty., E. D. N. Y., Paul B. Bergman, Asst. U. S. Atty., Brooklyn, N. Y., on the brief, for appellee.

Before LUMBARD, HAYS and FEINBERG, Circuit Judges.

FEINBERG, Circuit Judge:

Oswaldo Alfonso-Perez (Alfonso) was convicted after a jury trial in the United States District Court for the Eastern District of New York, James L. Watson, J., ¹ of conspiracy to import heroin and cocaine into the United States for purposes of distribution, 21 U.S.C. §§ 173, 174, and sentenced to 15 years' imprisonment and a $15,000 fine. He is presently incarcerated, serving concurrently this and a three-year term for obstruction of justice, to which he pleaded guilty on a separate indictment. On appeal, Alfonso seeks reversal on a number of grounds. As set forth below, we find that a combination of several rulings of the trial judge requires reversal of the conviction.

I

The Government's case at trial consisted of the testimony of four alleged co-conspirators of Alfonso, who testified to a number of narcotics transactions with him from December 1969 through August 1970. From this testimony, the jury could have concluded that Alfonso was a major dealer in heroin and cocaine. The government witnesses testified to numerous narcotics transactions involving Alfonso, including purchases and attempted purchases of imported cocaine in amounts ranging from 10 to 50 kilograms, and sales of heroin and cocaine in smaller amounts. In addition, there was testimony that one Domingo Abreu, who the jury could have found was a co-conspirator of Alfonso, ² successfully travelled to Spain to renew on Alfonso's behalf a heroin connection. Tens of thousands of dollars changed hands in these transactions, which took place in Miami and New York, and involved arrangements in several South American and European countries.

Alfonso, who does not challenge the sufficiency of the evidence, defended the case at trial by attacking the credibility of the Government's witnesses. Each had an unsavory past, and some motivation to cooperate with the Government. ³ The credibility of the co-conspirator witnesses was thus the main issue at trial, and was squarely posed for the jury, which apparently believed at least one of them.

II

The clearest error of the trial judge was his failure to charge the jury concerning the statute of limitations. Both sides agree that the original indictment in this case was returned on December 12, 1974, and charged a conspiracy lasting from November 1, 1969 to August 31, 1970. Because of the five-year statute of limitations, 18 U.S.C. § 3282, however, Alfonso could not lawfully have been convicted for an offense which occurred before December 12, 1969.

As noted above, the Government offered evidence of a substantial number of narcotics transactions. As to all but one of these there is no dispute that, if they occurred at all, they occurred within the limitations period. There is some question, however, about one of the transactions, Rene Rosquete testified that he had purchased one kilogram of heroin from Alfonso in "the first days" of December 1969. Claudina Leiros, who had arranged this transaction, also testified that it occurred "(a)pproximately at the beginning of December 1969."

Alfonso submitted a written request, which was denied, that the judge charge as follows:

If you believe the witness Rene Rosquete that there was a one kilo heroin transaction but that it occurred prior to December 12 of 1969 and you have a reasonable doubt as to the occurrence of the other alleged transactions or that there was a conspiracy to commit those specific transactions then I instruct you that you must acquit the defendant of the charge in this case.

The request was renewed after the judge completed his charge to the jury. The Government stated at oral argument before us that it had opposed this charge in colloquy not appearing on the record on the ground that the proposed charge was "confusing as it was prepared." ⁴ We note that insofar as there might have been any objection to the language of the proposed charge as drafted by defense counsel, it was indicated on the record below that he was proposing the charge for its substance. Moreover, we have recognized that a statute of limitations charge must be given even though "this may further complicate the already complex charge in a narcotics conspiracy trial." United States v. Borelli, 336 F.2d 376, 385 (2d Cir. 1964), cert. denied sub nom. Cinquegrano v. United States, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965).

Appellant argues that the December 1969 heroin sale might have been the only transaction the jury believed was proven beyond a reasonable doubt. Of course, if the jury did conclude that this was the only, or the latest, overt act in furtherance of the conspiracy to have been so proven, and further concluded that it occurred before December 12, 1969, it would have been obliged to acquit, but it was not instructed to this effect.

The possibility that the jury was convinced of this transaction, but dubious of the others, is a slim one. ⁵ The credibility of all the government witnesses was vigorously attacked by the defense, and on similar grounds. Nevertheless, as Alfonso points out on this appeal, Rene Rosquete was able to link appellant directly to only one narcotics transaction the sale of a single kilo of heroin in December 1969. While Rosquete further testified that he routed 10 kilos of cocaine to Claudina Leiros in March 1970, he offered no corroboration of Leiros's statement that this cocaine had then been delivered to Alfonso for distribution in New York City. Though it appears highly unlikely, it is possible that the jury, which saw the witnesses and was the sole judge of their credibility, believed Rosquete, but disbelieved the other government witnesses. If it did, Alfonso should have been acquitted, but the trial judge's charge permitted him to be convicted. This is "fatal error." Grunewald v. United States, 353 U.S. 391, 414, 77 S.Ct. 963, 978-79, 1 L.Ed.2d 931, 948-49 (1957). See also United States v. Borelli, supra, 336 F.2d at 384-86.

If this error stood alone, the unlikelihood that the jury found the facts in such a way as to create a statute of limitations defense for Alfonso might make us reluctant to reverse on this ground. In combination with the other rulings noted below, however, it requires reversal.

III

Another jury instruction requested by Alfonso and rejected by the trial court was a "theory of the defense" charge. Specifically, Alfonso requested the court to charge:

You are instructed that the defendant's position is that he was (not) involved in the narcotics conspiracy. It is his position that the government witnesses must have falsely testified against him for reasons of their own, such as to obtain their own freedom from imprisonment by providing a target for prosecution other than themselves.

We have held that a defendant is "entitled to have instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible . . . ." United States v. Platt, 435 F.2d 789, 792 (2d Cir. 1970), quoting United States v. O'Connor, 237 F.2d 466, 474 n. 8 (2d Cir. 1956). This language is broad enough to include the theory that the Government's witnesses are lying. United States v. Vole, 435 F.2d 774 (7th Cir. 1970). While the Government accepts this formulation, it argues that there was in this case no "foundation in the evidence" for the theory presented by defendant.

The Government attempts to distinguish Vole, on which Alfonso relied both here and in the trial court, by pointing out that in that case there was affirmative testimony supporting the theory that the defendant was framed. But it is not required that the evidentiary basis for a defendant's theory be affirmative testimony introduced by him. Evidence brought out on cross-examination, and inferences drawn from testimony elicited by the prosecution itself, also can and frequently will provide the basis for defendant's arguments to the jury. Here, Alfonso's cross-examination of the government witnesses plainly provided a sufficient basis for his theory, by demonstrating that each witness was in a position to be benefited by cooperation with the Government.

Of course, we do not suggest that these witnesses were in fact lying. That was for the jury to determine, and indeed the jury here evidently concluded that at least one of the government witnesses was credible. We only point out that there was a sufficient basis in the record to permit defendant to argue his theory to the jury in fact, defendant was permitted to make such an argument without objection. Where this is so, there is no reasonable ground for a judge to refuse to charge the jury, without suggesting that he agrees with it, that this is defendant's theory of the case. This error, too, would be unlikely in itself to have prejudiced defendant, since the defense summation squarely propounded Alfonso's theory to the jury. But as appellant points out, it is of some value to a defendant to have the trial judge clearly indicate to the jury what his theory of the case is, and that that theory, if believed, justifies...