U.S. v. Diez, s. 1045

• Decision Date: 01 June 1984
• Docket Number: D,Nos. 1045,1046,s. 1045
• Citation: 736 F.2d 840
• Parties: 15 Fed. R. Evid. Serv. 1208 UNITED STATES of America, Appellee, v. William Helbert DIEZ and Hernando Palaus, Appellants. ockets 83-1402, 83-1457.
• Court: U.S. Court of Appeals — Second Circuit

Page 840

736 F.2d 840

15 Fed. R. Evid. Serv. 1208

UNITED STATES of America, Appellee, v. William Helbert DIEZ and Hernando Palaus, Appellants.

Nos. 1045, 1046, Dockets 83-1402, 83-1457.

United States Court of Appeals Second Circuit.

Argued April 3, 1984.

Decided June 1, 1984.

Howard L. Baker, New York City (Wilens & Baker, New York City, of counsel), for appellant Diez.

Peter J. Fabricant, New York City, for appellant Palaus.

Peter J. Tomao, Asst. U.S. Atty., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., E.D.N.Y., L. Kevin Sheridan, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for appellee.

Before FEINBERG, Chief Judge, OAKES, Circuit Judge, and POLLACK, District Judge. ^*

OAKES, Circuit Judge:

This appeal is from convictions in what in the annals of this court can only be termed a run-of-the-mill drug case. Appellants Hernando Palaus and William Helbert Diez were each convicted in the United States District Court for the Eastern District of New York, John R. Bartels, Judge, of one count of conspiracy to distribute cocaine (21 U.S.C. Sec. 846) (1982) and one count of possession of cocaine with intent to distribute (21 U.S.C. Sec. 841(a)(1) (1982); 18 U.S.C. Sec. 2 (1982)). Appellant Palaus was also convicted of possessing a weapon during the commission of a felony (18 U.S.C. Sec. 924(c) (1982)). Diez received concurrent sentences of five years on each count plus a special parole term of ten years, while Palaus received concurrent sentences of eight years plus a similar special parole term. On appeal Diez argues that there was insufficient evidence to support his conviction of conspiracy. Diez also argues that the trial judge erroneously conducted the initial voir dire of prospective jurors, erroneously failed to disqualify a prejudiced juror and declare a mistrial and erroneously charged the jury with respect to his "mere presence" at the scene of the crime. Palaus, in addition to adopting some of Diez's arguments, argues that the admission into evidence of Diez's post-arrest statement, even though redacted and accompanied by limiting instructions, violated Palaus's right of confrontation and thus constituted reversible error. Palaus also argues that the trial judge should have immediately inquired into the alleged juror misconduct rather than waiting until after the jury had finished deliberating. We affirm.

FACTS

On June 6, 1983, government informant Eduardo Flores met with one Carlos Villegas at the Iberia Bar in Queens and indicated to Villegas that he was interested in buying a kilogram of cocaine. As a result of that meeting a purchase was arranged at the price of $50,000, involving Villegas and two friends, Fernando Patino and Juan Gutierrez. The deal was set for the evening of June 9 at the El Dorado restaurant, also in Queens.

At the appointed time, Flores, accompanied by an undercover New York City police detective, drove to the El Dorado. Flores then entered the restaurant and met with Gutierrez. Patino, who was sitting at the bar, then left the restaurant, and returned with one-eighth of a kilogram of cocaine which he showed to Flores. After Flores agreed to make the purchase, Patino told him that the rest of the cocaine was "on its way." Patino then placed a phone call and discussed the deal with a person on the other end of the line, and permitted Flores to speak to the person who reportedly said he would be bringing "that" in about twenty-five or thirty minutes. After the phone call Patino told Flores that a Cadillac would arrive and beep its horn, and that would be "the man who is bringing the kilo."

At about 1:00 a.m. surveillance agents saw the Cadillac, later found to contain Palaus and Diez, drive very slowly past the restaurant and then return and sound its horn twice. Within a few seconds after the "beep," Patino told Flores that "the man is here." Patino then ran outside the bar, entered his own automobile and followed the Cadillac to a deserted street.

Patino, who was, of course, under surveillance, then got out of his car and walked to the driver's side of the Cadillac, where he picked up a plastic bag later found to contain the kilogram of cocaine. Patino then returned to the restaurant and gave the bag to Flores. Moments later task force members entered the restaurant and arrested Gutierrez and Patino.

Meanwhile, surveillance of the Cadillac continued. After some slow driving about, the car containing appellants pulled into a deserted, unlighted gasoline station where it waited for several minutes and then returned toward the El Dorado. By that time, the agents conducting the surveillance learned of the arrests inside the restaurant, and they blocked the Cadillac when it stopped at a stop light. Palaus, the driver, and Diez, the passenger, were placed under arrest, and a detective seized from the front seat of the automobile a black leather bag containing a loaded .38 caliber revolver, some papers including a receipt for a large sum of money bearing Palaus's name, a piece of paper containing the name "Fernando" and the telephone number of the El Dorado, a business card of the El Dorado, and a small amount of cocaine.

The detective who took Diez back to the DEA office advised him of his rights, and Diez then told him that he had nothing to do with what had transpired, that he had met Fernando Patino for the first time the previous day and had agreed to meet him at the El Dorado restaurant for dinner and drinks. Diez stated that Patino asked him to go to the vicinity of Queens Boulevard between 73rd and 74th Streets to pick up another individual and bring him back to the El Dorado. Diez said that he did so and returned to the vicinity of the El Dorado restaurant at which time he was arrested.

As part of his statement to the detective, Diez also identified Palaus, although not by name, as the individual whom he had met. He also identified the car as a Cadillac, and stated that Patino asked him to let Palaus drive the Cadillac back to the restaurant. These portions of Diez's statement were redacted when it was read to the jury, after objections by Palaus under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

DISCUSSION

1. Sufficiency of the evidence. Diez argues that the evidence offered at trial established only his physical presence in the Cadillac, that he knew Patino, and that Patino asked him to pick up an unknown person and return to the El Dorado Restaurant. He insists that this evidence constitutes proof of no more than "mere presence" and perhaps "mere association" with one of the conspirators. He relies on the cases in our circuit including, e.g., United States v. Johnson, 513 F.2d 819, 823-24 (2d Cir.1975), to the effect that mere presence at the scene of a conspiratorial act is not sufficient to sustain a conspiracy conviction without proof of "purposeful behavior" tending to connect the defendant with the purchase, concealment, importation, use, or sale of drugs, i.e., without proof of a deliberate, knowing, specific intent to join the conspiracy. Mere association with a guilty party is not enough to establish such purposeful behavior. Id. at 824. Conceding that circumstantial evidence may be used to prove membership in a conspiracy, United States v. Sanzo, 673 F.2d 64, 69 (2d Cir.), cert. denied, 459 U.S. 858, 103 S.Ct. 128, 74 L.Ed.2d 111 (1982), Diez maintains that the circumstantial evidence here was insufficient to prove his guilt beyond a reasonable doubt, especially since the record nowhere makes reference to him as a participant in the conspiracy.

We agree with the Government, however, that while the evidence was not overwhelming, it was not insufficient as a matter of law to sustain the conviction. See United States v. Terrell, 474 F.2d 872, 876 (2d Cir.1973). Diez was present in the Cadillac from which Patino picked up the kilogram of cocaine. This alone distinguishes this case from United States v. Steward, 451 F.2d 1203, 1206-07 (2d Cir.1971), where an armed driver of a car which carried a drug seller and his wares to a motel where the sale took place had his conviction for aiding and abetting reversed for insufficient evidence. Here, Diez actually witnessed the transaction.

Moreover, while Diez did not own the Cadillac, he at least had sufficient control over it such that he drove it and, at Patino's request, picked up Palaus and then permitted Palaus to drive the vehicle from which the drugs were taken. This case is like Mack v. United States, 326 F.2d 481 (8th Cir.), cert. denied, 377 U.S. 947, 84 S.Ct. 1355, 12 L.Ed.2d 309 (1964), in that Diez was in attendance at the delivery of the product, provided the means of transportation, and, for a certain extent of time, operated the vehicle involved. Moreover, Diez's statement that he intended to meet Patino that night for dinner and drinks could certainly be taken by the factfinder to be a false exculpatory statement, since he arrived near the restaurant after 1:00 a.m., at a time when it was vacant except for Patino, Gutierrez, Flores, and a bar maid. Beyond this, the Cadillac did pass by the restaurant twice before the delivery, signaling Patino with its horn. He then followed it to the deserted street where delivery of the bag was made, Diez sitting in the front seat so as to see it. The driving pattern thereafter--going very slowly, using the deserted gasoline station for a few minutes' stop and to make a U-turn--permits the inference that Diez and Palaus were simply killing time so that the deal could be completed before they returned to the restaurant to share in the proceeds.

2. Voir dire. The rather novel argument made as to the judge's conduct of the voir dire concerns the fact that certain questions were asked of a group of over thirty prospective jurors seated in the general seating area of the courtroom. The court's procedure involved asking the prospective jurors to raise their hands if the questions applied, and this, it is argued, "made it...