U.S. v. Armedo-Sarmiento

• Decision Date: 07 March 1977
• Docket Number: Nos. 1276-1282,ARMEDO-SARMIENTO,1284 and 1309,D,s. 1276-1282
• Parties: UNITED STATES of America, Appellee, v. Francisco Adriano, aka Eduardo Sanchez, aka Pacho el Mono, aka Elkin, aka Francisco Velez, et al., Defendants-Appellants. ockets 76-1113, 76-1119, 76-1124, 76-1127 and 76-1148.
• Court: U.S. Court of Appeals — Second Circuit

Page 785

545 F.2d 785

UNITED STATES of America, Appellee, v. Francisco Adriano ARMEDO-SARMIENTO, aka Eduardo Sanchez, aka Pacho el Mono, aka Elkin, aka Francisco Velez, et al., Defendants-Appellants.

Nos. 1276-1282, 1284 and 1309, Dockets 76-1113, 76-1119,

76-1124, 76-1127 and 76-1148.

United States Court of Appeals Second Circuit.

Argued Aug. 20, 1976.

Decided Oct. 28, 1976.

Certiorari Denied March 7, 1977.

See 97 S.Ct. 1330, 1331.

Paul E. Warburgh, Jr., New York City, for defendant-appellant Francisco Adriano Armedo-Sarmiento.

Martin Gotkin, New York City (Gerald B. Lefcourt, Rachel H. Wolkenstein, Rosenthal & Herman, P. C., Gilbert S. Rosenthal, Abraham Wilson, Leonard J. Levenson, New York City, of counsel), for defendants-appellants Edgar Restrepo-Botero, Leon Velez and Olegario Montes-Gomez.

Frederick P. Hafetz, New York City (Goldman & Hafetz, New York City, of counsel), for defendants-appellants Libardo Gill and Carmen Gill.

Donald E. Nawi, New York City (Howard L. Jacobs, P. C., New York City, of counsel), for defendant-appellant Ruben Dario Roldan.

Leonard J. Levenson, New York City (Martin Gotkin, New York City, of counsel), for defendant-appellant William Rodriguez-Parra.

Louis A. Tirelli, Spring Valley, N. Y., on submission for defendant-appellant Jorge Gonzalez.

Daniel R. Murdock, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., Peter M. Bloch, Michael Q. Carey, Howard W. Goldstein, Rhea K. Neugarten, Martin B. McNamara, Frederick T. Davis, Asst. U. S. Attys., New York City, of counsel), for appellee.

Before VAN GRAAFEILAND, Circuit Judge, and KELLEHER ^* and GAGLIARDI, ^** District Judges.

VAN GRAAFEILAND, Circuit Judge:

Between 1971 and 1975, massive amounts of cocaine and marijuana were smuggled from Colombia, South America into the United States, much of it intended for distribution in New York City. In smaller quantities, these drugs entered the country in such things as false-bottom shoes, suitcases, dog cages, hollowed-out-coat hangers and double-lined undergarments. Larger quantities came in by speedboat and in the false ceilings and walls of ocean-going shipping containers.

On April 30, 1975, following an intensive cooperative investigation by Federal and New York authorities, appellants and 29 others were indicted for conspiracy to import, possess and distribute cocaine in violation of 21 U.S.C. §§ 846 and 963. ¹ They now appeal from judgments of conviction which followed a 14-week jury trial before Judge Cannella in the Southern District of New York.

Only 12 of the indicted defendants were tried, the 9 appellants and 3 others who were tried in absentia. The government's proof which consisted of wiretap recordings, ² documentary evidence, surveillance reports and the testimony and admissions of accomplices was sufficient to establish each appellant's participation in the illegal venture. We move, therefore, directly to appellants' numerous other assertions of error.

Multiple Conspiracies

When a pattern of illegal activity persists over an extended period of time, with participants moving on and off the scene of action, it is sometimes difficult to establish that they are all part of a single conspiracy. United States v. Borrelli, 336 F.2d 376, 382-87 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965). It is not surprising, therefore, that appellants here argue the existence of three conspiracies, rather than one.

They contend that the first conspiracy covered the period from late 1971 until July 1973 and that, of the appellants, only Parra, Gomez and Botero were involved therein. The second, they say, ran from May 1973 until early 1974, with Botero the only appellant involved in this segment. The third, according to appellants, was in existence only during the first ten months of 1974, and among the participants were appellants Sarmiento, the two Gills, Roldan and Gonzalez.

The nature of the government's proof did indeed differ with respect to each of these three periods. Testimony concerning the 1971-73 segment was given largely by Carmen Caban and Rita Ramos, barmaids, who became involved on both a "business" and personal basis with the drug dealers against whom they testified. The illegal importation taking place during 1973 was described chiefly by William Andries and Lionel Fernandez, drug couriers, whose deliveries were made primarily in the Miami, Florida area. Most of the surveillance and wiretapping took place during the third period. It is true, also, that the evidence connected a number of the alleged conspirators with but one of the three time segments, and the primary scene of operations for the second segment was different from that of segments one and three.

However, whether the evidence has established multiple conspiracies rather than a single one is ordinarily a question of fact for the jury, United States v. Finkelstein, 526 F.2d 517, 522 (2d Cir. 1975), cert. denied,425 U.S. 960, 96 S.Ct. 1742, 48 L.Ed.2d 205 (1976); and, accepting the proof in the light most favorable to the Government, United States v. McCarthy,473 F.2d 300, 302 (2d Cir. 1972), we think it was sufficient to permit the jury to find the existence of but a single conspiracy. Evidence was introduced to show that the "brains" of the smuggling operation were two brothers, Alberto and Carlos Bravo, owners of an export-import business in Colombia. They were assisted by Griselda Blanco, who manufactured sophisticated smuggling devices and recruited couriers, and Bernardo Roldan, an expert in the manufacture of passports. This operational core continued to be active during the four year period covered by the indictment. ³ See United States v. Mallah, 503 F.2d 971, 983 (2d Cir. 1974), cert. denied, 420 U.S. 995, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1975).

Moreover the jury might properly find that several of the domestic underlings actively participated in the illegal drug operation during more than one of the three time segments. Among those were Cabrera, Botero, Caban, Ramos, Rincon, Hernandez, Diaz, Carmen Gill and Arturo Gonzalez. See United States v. Stromberg, 268 F.2d 256, 263 (2d Cir.), cert. denied, 361 U.S. 863, 80 S.Ct. 123, 4 L.Ed.2d 102 (1959).

There was proof that many of the participants were aware of each other's role in the organization. There were numerous meetings and telephone conversations among them and sales and transfers of drugs between them. See United States v. Sperling, 506 F.2d 1323, 1340 (2d Cir. 1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439 (1975). There was also a consistent pattern of operation which included the use of similar smuggling devices, forged passports and a communications code. See United States v. Leong, 536 F.2d 993, 995 (2d Cir. 1976); United States v. Sisca, 503 F.2d 1337, 1343 (2d Cir.), cert. denied, 419 U.S. 1008, 95 S.Ct. 328, 42 L.Ed.2d 283 (1974). Indeed a jury might consider the very size of the operation and the quantity of drugs involved to be indicative of a large scale, continuing conspiracy. United States v. Magnano, 543 F.2d 431, 435 (2d Cir. 1976).

Conspiracies are often agreements in flux, United States v. Cirillo,468 F.2d 1233, 1239 (2d Cir. 1972), cert. denied, 410 U.S. 989, 93 S.Ct. 1501, 36 L.Ed.2d 188 (1973), and a single conspiracy is not transposed into a multiple one simply by lapse of time, Braverman v. United States, 317 U.S. 49, 52, 63 S.Ct. 99, 87 L.Ed. 23 (1942), change in membership, United States v. Stromberg, supra, 268 F.2d at 263-64, or a shifting emphasis in its locale of operations, United States v. Finkelstein, supra, 526 F.2d at 521.

The District Court's instructions on conspiracy, while succinct, were adequate. The Court charged that the government was required to prove the existence of but a single conspiracy and that each defendant's participation in this conspiracy must be determined individually by his own actions and declarations. It was not, as appellants assert, an "all or nothing" charge. United States v. Bynum, 485 F.2d 490, 497 (2d Cir. 1973), vacated on other grounds, 417 U.S. 903, 94 S.Ct. 2598, 41 L.Ed.2d 209 (1974). The District Judge's decision not to marshal the evidence was a discretionary one which avoided the risks of omission, over-enumeration, oversimplification and improper emphasis. United States v. Bernstein, 533 F.2d 775, 798-99 (2d Cir. 1976). While we have encouraged the marshaling of proofs in complicated conspiracy cases in order to highlight the differences between defendants, see, e. g., United States v. Sisca, supra, 503 F.2d at 1345; United States v. Kelly, 349 F.2d 720, 757 (2d Cir. 1965), cert. denied, 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544 (1966), we are not prepared to hold that the District Judge's decision not to do so in this case was an improper exercise of his discretion.

In short, we find no error in the submission of the multiple conspiracy issue to the jury, nor in the manner in which it was submitted.

Denial of Right to Speedy Trial

The indictment on which appellants were tried was a superseding indictment filed April 30, 1975. Four indictments preceded it, the original one being filed on May 11, 1974. Appellant Gonzalez was arrested by state authorities on September 17, 1974, indicted by a federal grand jury on October 4, 1974 and arraigned on the charges of that indictment on October 31, 1974. Appellant Roldan was arrested on October 4, 1974 on the same charges. Under Rule 4 of the Speedy Trial Rules of the District Court for the Southern District of New York as they then existed, the government was required to be ready for trial within six months from the day of arrest or the filing of charges, whichever was earlier. Absent such readiness, defendant was entitled to move for dismissal of the indictment. In computing the time within which the government was required to be ready, those periods occupied by the making and determination of pretrial motions were to be...