U.S. v. Castro

• Citation: 813 F.2d 571
• Decision Date: 09 March 1987
• Docket Number: Nos. 235,D,247,s. 235
• Parties: 22 Fed. R. Evid. Serv. 995 UNITED STATES of America, Appellee, v. Jairo Andres CASTRO and Oscar Ramiro Pozo, Defendants-Appellants. ockets 86-1127, 86-1153.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 571

813 F.2d 571

22 Fed. R. Evid. Serv. 995

UNITED STATES of America, Appellee, v. Jairo Andres CASTRO and Oscar Ramiro Pozo, Defendants-Appellants.

Nos. 235, 247, Dockets 86-1127, 86-1153.

United States Court of Appeals, Second Circuit.

Argued Oct. 7, 1986.

Decided March 9, 1987.

David N. Lawrence, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Bruce A. Green, Asst. U.S. Atty., New York City, of counsel), for appellee.

Barry Bassis, The Legal Aid Soc., Federal Defender Services Unit, New York City, for defendant-appellant Jairo Andres Castro.

Jill Elijah, New York City, for defendant-appellant Oscar Ramiro Pozo.

Before LUMBARD, CARDAMONE and PIERCE, Circuit Judges.

PIERCE, Circuit Judge:

These are appeals from judgments of conviction entered against appellants in the United States District Court for the Southern District of New York following a jury trial before Chief Judge Charles L. Brieant. The indictment charged both appellants with conspiracy to manufacture and possess cocaine with intent to distribute in violation of 21 U.S.C. Sec. 846 (1982) and with the substantive crime of manufacturing and possessing cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1), (b)(1)(A) (1982 & Supp. III 1985). Castro also was charged with assaulting a federal officer in violation of 18 U.S.C. Secs. 111, 1114 (1982). The jury returned verdicts of guilty as to each defendant. We affirm.

BACKGROUND

Evidence at trial indicated that in June 1985, appellant Pozo and one "Mr. Safi" arranged to lease a farm for Safi in Callicoon Center, Sullivan County, New York. The farm, located two or three hours by car from New York City, comprised about sixty-two acres of land, a two-story farmhouse, and a detached barn and garage. The farm apparently had no livestock or crops, and was located in the woods three-tenths of a mile from the nearest road.

In August 1985, agents of the Drug Enforcement Administration ("DEA") learned of a shipment of ether and acetone from Miami to Brooklyn. These substances commonly are used in the processing and refinement of cocaine. The DEA commenced surveillance of a trucking firm in Brooklyn to which the shipment was to be delivered. Upon arrival, the shipment was accepted by a person who produced a driver's license bearing the name Miguel Acosta. Acosta loaded the drums onto a truck and drove it to the farm in Callicoon Center. For about ten days commencing August 14, 1985, DEA agents and New York State police surveilled the farm around the clock.

On August 16th, a gray car with three occupants arrived at the farm and two unidentified men alighted and removed the chemicals from the truck. The third occupant of the gray car departed in the car, followed ten minutes later by the other two men, who drove the truck.

That same day, several surveilling officers smelled ether fumes in the vicinity of the farm. During the next few days, several unidentified persons arrived and left the farm; the smell of ether remained. On August 22, 1985, Pozo arrived at the farm in the gray car.

From the record, it is unclear as to when Castro arrived, but it appears from an airplane ticket which he possessed at the time of his arrest that he arrived in New York City from Miami at about 7:00 p.m. on August 22nd. The next day, Castro and Pozo were observed conversing behind the farmhouse with an unidentified third individual. Castro also was observed that day on a tractor mowing the grass. The ether odor remained overnight and into the morning of August 24.

On August 24, 1985, the surveilling DEA agents and state police, having obtained a search warrant, entered the premises and commenced a search of the farm and the buildings. Agents testified that the search was commenced in a highly visible fashion and that they gave clear notice that they were law enforcement officers by, for example, wearing badges and police jackets and shouting "police." At this time, one state trooper noticed that the odor of ether was especially strong near the farmhouse and barn.

When the search commenced, Castro, who had been raking in front of the barn Castro was subdued and brought back to the farmhouse. At the farmhouse, Officer Figueroa, a New York State Trooper, interrogated Castro and told him there was reason to believe the premises were being used as a cocaine laboratory and informed him in Spanish of his constitutional rights. According to Figueroa, when asked "what [was] going on," Castro replied, "I don't know what you're talking about." However, when asked by Figueroa where drugs were kept, Castro pointed to a black shopping bag on the floor in the living room. A search of the bag revealed about 600 grams of 89% pure cocaine. In the bag, beneath the cocaine, a credit card receipt was found which bore Castro's imprinted and signed name. Also found in the shopping bag, on top of the cocaine, were several items of clothing. When it became necessary later for Castro to change his clothing, an agent started for the bedroom to get him a change of clothes from one of the dressers, whereupon Castro indicated that such clothing did not belong to him; he then pointed to the pile of clothing in the living room which had been removed from the black shopping bag. Castro changed into a pair of underwear from that pile and an agent noticed that the underwear fit him.

fled. DEA Agent Hunt testified that he pursued him, and that upon reaching him Castro struck him several times.

Figueroa's report indicated that Castro claimed that the cocaine belonged to "Acosta," who Castro later identified as being appellant Pozo.

A search of the unlocked portions of the barn revealed, inter alia, drums of ether, acetone and methyl ethyl ketone; approximately two kilograms of cocaine; and assorted other equipment necessary for the laboratory processing of cocaine, including chemical filters, respirators, heat-drying guns, triple-beam scales, laboratory glassware, and fans. Additional chemicals and equipment were stored in a locked area of the barn, although the agents apparently found that Castro and Pozo did not have keys for that area. A DEA chemist testified as to the uses of these chemicals and this equipment in a cocaine laboratory.

Pozo testified in his own defense; Castro did not. Pozo's testimony centered around his assertion that he was merely a caretaker at the farm hired by a third person to cut the grass and watch over the place. The defendants called no other witnesses.

The jury found the defendants guilty of all charges. Castro was sentenced to fifteen years imprisonment on each of the two narcotics convictions to run concurrently, and to one year imprisonment to be served consecutively on the conviction for assaulting a federal officer. Pozo was sentenced to twenty years imprisonment on each of the narcotics convictions to run concurrently. Appellants presently are serving their sentences.

On appeal, Castro principally argues (1) that a redaction of his post-arrest statement to Officer Figueroa violated the rule of completeness as embodied in Fed.R.Evid. 106; (2) that the evidence was insufficient to establish his guilt as to the narcotics charges; and (3) that several errors in the charge to the jury require reversal. Pozo claims that joinder of the assault charge against Castro with the narcotics charges against Pozo was improper and also that his sentence is excessive.

DISCUSSION

One of the principal issues raised by Castro relates to an undisputed act and statement by Castro as described in Officer Figueroa's post-arrest report--the report itself was not received in evidence. In short, during the raid Figueroa asked Castro where the cocaine was kept. Castro pointed to a black plastic bag on the living room floor and stated that it was at the bottom of the bag. When Figueroa asked Castro how he knew the cocaine was in the bag, Castro replied that the bag belonged to Acosta, who had put it there. ¹ Later, Castro identified Pozo as Acosta.

Pozo, concerned about the portion of Castro's statement that implicated him, moved for a severance, citing Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (district court must sever where one defendant's out-of-court confession to be offered against that defendant contains statements inculpating co-defendant). The government offered to redact the evidence so that it was limited to Castro's act and statement directing Figueroa to the plastic bag. Castro objected, arguing that to allow admission of only the redacted evidence would violate the rule of completeness as embodied in Fed.R.Evid. 106. Castro claimed that omission of the part which attributed ownership of the cocaine to Acosta would make Castro's act of pointing and his statement appear to be a pure admission of ownership of the cocaine by himself. Castro moved for a severance, suggesting that this was the only way in which the evidence could be admitted without a redaction and that a mere redaction would render it misleading. The court denied the motion, and ruled that no part of the statement with respect to "Acosta" could be elicited from any witness. When Castro renewed the objection at trial, the court again rejected his argument, but suggested during colloquy with counsel that the essence of the exculpatory part of Castro's statement to Figueroa could be elicited:

THE COURT: I suppose [Officer Figueroa] could be asked in cross-examination. I have been thinking about how you could accommodate to the ruling or get around it.

"Did he say it was his cocaine?"

"No, he didn't say it was his cocaine."

Tr. 213.

THE COURT: ... I have already suggested that you or the government could ask [Figueroa], "Did he tell you it was his," and he says no. "Did he say it was his cocaine?" "No he did not."

Tr. 296.

As a result, at trial Officer Figueroa testified during direct and cross-examination as follows:

[DIRECT EXAMINATION by the Government]

Q Did Mr....