U.S. v. Benitez, PERALTA-MATO

• Decision Date: 05 December 1990
• Docket Number: No. 323,PERALTA-MATO,D,323
• Parties: 31 Fed. R. Evid. Serv. 1151 UNITED STATES of America, Appellee, v. BENITEZ, et al., Defendants. Appeal of Alfredoefendant-Appellant. ocket 89-1220.
• Court: U.S. Court of Appeals — Second Circuit

Page 1080

920 F.2d 1080

31 Fed. R. Evid. Serv. 1151

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

Appeal of Alfredo PERALTA-MATOS, Defendant-Appellant.

No. 323, Docket 89-1220.

United States Court of Appeals,

Second Circuit.

Argued Nov. 3, 1989.

Decided Dec. 5, 1990.

Gerald J. DiChiara, New York City, for defendant-appellant.

Peter B. Sobol, Asst. U.S. Atty., S.D.N.Y., New York City (Benito Romano, U.S. Atty., Vincent L. Briccetti, Asst. U.S. Atty., S.D.N.Y., New York City, of counsel), for appellee.

Before MINER and MAHONEY, Circuit Judges, and CARMAN, Judge. ^*

MAHONEY, Circuit Judge:

Defendant-appellant Alfredo Peralta-Matos ("Matos") appeals from a judgment of conviction entered May 24, 1989 in the United States District Court for the Southern District of New York, Robert W. Sweet, Judge, after a jury found Matos guilty of (1) conspiring to distribute, and to possess with intent to distribute, over 500 grams of cocaine in violation of 21 U.S.C. Sec. 846 (1988); (2) distributing, and possessing with intent to distribute, together with codefendants approximately 1,007 grams of cocaine in violation of 21 U.S.C. Secs. 812, 841(a)(1), and 841(b)(1)(B) (1988) and 18 U.S.C. Sec. 2 (1988); and (3) possessing with intent to distribute approximately 0.844 grams of heroin in violation of 21 U.S.C. Secs. 812, 841(a)(1), and 841(b)(1)(C) (1988) and 18 U.S.C. Sec. 2 (1988).

For the reasons that follow, we affirm the judgment of conviction.

Background

The convictions from which Matos appeals arise from a narcotics transaction between the indicted defendants and agents of the Drug Enforcement Administration ("DEA"). The government's evidence at trial is summarized immediately hereinafter. Except for one character witness for a codefendant of Matos, no defense case was presented.

In December 1987, DEA agent Thomas C. Slovenkay, working in an undercover capacity, had several telephone conversations with one Eugene Jimenez that culminated in a transaction at 161st Street and the Grand Concourse in the Bronx, New York City, on December 29, 1987 at which Slovenkay purchased from Jimenez approximately 52.6 grams of 63% pure cocaine for $2,500 in prerecorded currency. Following the sale, Jimenez went to an apartment building at 2230 University Avenue in the Bronx. At a later date, Slovenkay received a telephone message from Jimenez requesting that Slovenkay phone Jimenez at a number listed to one Harry Torres at that address.

In a telephone conversation recorded by DEA agents on January 13, 1988, Jimenez and Torres agreed to sell Slovenkay a kilogram of cocaine in exchange for $23,500. In view of the increased magnitude of the transaction, the sale was to be carried out in four equal installments. The next day, Slovenkay and Jiminez talked on the phone and agreed to consummate the sale that evening.

At approximately 8:00 p.m. that evening, January 14, 1988, Matos drove up to the entrance of 2230 University Avenue, parked, and entered the building. Jimenez arrived and entered the building at approximately 8:25 p.m. Matos departed at approximately 8:35 p.m. Shortly thereafter, Jimenez, Torres, and William Gonzalez-Benitez ("Benitez") departed the building, took a cab to 2845 University Avenue, and entered an apartment building at that address.

At some point later in the evening, Jimenez and Slovenkay met at 161st Street and the Grand Concourse. Pursuant to their prior agreement, Slovenkay gave Jimenez the first installment of $5,900 in prerecorded currency. Jimenez thereupon returned to 2845 University Avenue to pick up the cocaine. At approximately 10:00 p.m., Matos also entered 2845 University Avenue. ¹

Meanwhile, Slovenkay waited for Jimenez to return with the cocaine. Slovenkay spoke over the telephone with Jimenez' wife, Renee, several times during that period, and was advised by Renee that "some unforeseen problem had developed from the people that were involved in this thing," and that Slovenkay would "have to sit and wait." At approximately 10:00 p.m., Renee advised Slovenkay that Jimenez "said he'll be there in ten minutes." About ten minutes later Jimenez did arrive, bearing a kilogram of cocaine wrapped in a brown paper bag, a plastic container, and plastic wrapping. Slovenkay testified that Jimenez "apologized[,] saying that instead of going ahead and continuing with the breaking up in four, I brought the whole thing." There was affixed to the paper bag a Sears and Roebuck label addressed to "William Beniter [sic], 2845 University Avenue, Apartment 4J, Bronx, New York."

Jimenez gave the cocaine to Slovenkay, and was thereupon arrested by DEA surveillance agents. Agents then went to Apartment 4J at 2845 University Avenue and, under what the district court deemed to be exigent circumstances, see United States v. Matos-Peralta, 691 F.Supp. 780, 784-85 (S.D.N.Y.1988), forced their way in by breaking down the steel door to the apartment with a sledgehammer. The agents found Torres and Benitez inside, and arrested them. Matos and Hector B. Ramirez, who had also been inside, had jumped through the back window of the apartment. Ramirez lay on the ground below; Matos was found at the end of a trail of blood leading to the building's basement utility room. The agents arresting Matos found on the ground in the utility room, where Matos was standing at the time of his arrest, a package containing a sample of 0.333 grams of 86% pure heroin and glassine envelopes containing 17% pure heroin.

Matos and Ramirez were brought to the Bronx Municipal Hospital Center for treatment of the injuries that they sustained in their four-story plunge. Both stated to hospital personnel that they had jumped from an apartment window upon the arrival of police officers. Benitez gave and signed a postarrest statement in which he acknowledged, inter alia, that at 9:00 p.m. on January 14, 1988, in Apartment 2A, 2230 University Avenue ("Apartment 2A"), he had agreed with Jimenez to the use of Benitez' Apartment 4J, 2845 University Avenue ("Apartment 4J") to "make some money fast," and that he and Jimenez had then traveled by cab from 2230 University Avenue to 2845 University Avenue. Benitez further stated that a "black guy" with a beard had been at Apartment 2A, had departed to "go get that" saying "he would see us later," and had reappeared at Apartment 4J with a "small Spanish male" with a package, "the evidence we have now." Benitez added that when the DEA agents announced their presence at Apartment 4J, "the black guy and the Spanish guy went to the bedroom and I heard breaking glass." Benitez' statement was admitted in evidence at trial, but was redacted to delete any reference to the "black guy," the "small Spanish male," and the "Spanish guy," as indicated in the margin. ²

Subsequent to their forced entry, the DEA agents executed a search warrant at Apartment 4J. The search yielded cocaine, heroin, marijuana, various narcotics paraphernalia, cutting agents, weapons, ammunition, holsters, address books, and a flight jacket that Matos was wearing when he entered the building. The agents found beepers on the persons of Torres and Benitez. The address books included listings, with telephone numbers, for "Alfredo" and "Fredo."

That same evening, DEA agents also executed a search warrant at Apartment 2A. There they seized heroin, cocaine, narcotics paraphernalia, cutting agents, an address book, narcotics transaction records, and $10,425 in United States currency that included prerecorded currency from the December 29, 1987 and January 14, 1988 transactions between Jimenez and Slovenkay. The narcotics transaction records included an index card headed "Alfred" with a running tally of dollar amounts listed thereunder.

On May 16, 1988, an eleven-count superseding indictment, the first to name Matos as a defendant, was filed against Matos, Ramirez, Torres, Benitez, and Jimenez. Matos was charged only in counts one, three, and eleven. Count one charged that Matos and his codefendants conspired to distribute, and to possess with intent to distribute, over 500 grams of cocaine in violation of 21 U.S.C. Sec. 846 (1988). Count three charged that Matos and his co-defendants distributed, and possessed with intent to distribute, approximately 1,007 grams of cocaine on or about January 14, 1988 in violation of 21 U.S.C. Secs. 812, 841(a)(1), and 841(b)(1)(B) (1988) and 18 U.S.C. Sec. 2 (1988). Count eleven charged that Matos possessed with intent to distribute approximately 0.844 grams of heroin on January 14, 1988 in violation of 21 U.S.C. Secs. 812, 841(a)(1), and 841(b)(1)(C) (1988) and 18 U.S.C. Sec. 2 (1988).

After warrants were issued for their arrest, Matos surrendered to the authorities on April 15, 1988, and Ramirez was arrested on or about May 24, 1988. On the latter date, Ramirez gave an oral statement to agents at a DEA office recounting the events of the night of January 14, 1988. The statement, given in Spanish, was translated and transcribed by Anthony Petrino, a Spanish-speaking DEA agent. ³

That night, Ramirez stated, he had driven Matos to 2845 University Avenue and remained in the car while Matos went inside. After waiting for approximately one hour, Ramirez became concerned for Matos' safety and entered the building. He was directed to Apartment 4J by a teenager who "asked him if Ramirez was looking for Matos." When he went into the apartment, Ramirez saw two unknown persons and Matos, together with a machine gun on a table that Ramirez thought was a toy. Shortly thereafter, there was a knock on the door; looking through a peep-hole, Ramirez saw an Indian boy who said "they are not going to kill you." Ramirez, not knowing police were at the door, jumped through the glass and out the bedroom window.

At trial, Ramirez' transcribed statement was not admitted in evidence. Rather, Petrino testified as to the interview with Ramirez, substituting for all references to Matos in the interview the...