U.S. v. Fuentes

• Decision Date: 14 September 1977
• Docket Number: 1402,D,Nos. 1397,s. 1397
• Citation: 563 F.2d 527
• Parties: UNITED STATES of America, Appellee, v. Frank Joseph FUENTES and Carmello Sansone, a/k/a "Michel", Appellants. ockets 77-1083, 77-1179.
• Court: U.S. Court of Appeals — Second Circuit

Page 527

563 F.2d 527

UNITED STATES of America, Appellee, v. Frank Joseph FUENTES and Carmello Sansone, a/k/a "Michel", Appellants.

Nos. 1397, 1402, Dockets 77-1083, 77-1179.

United States Court of Appeals, Second Circuit.

Argued July 19, 1977.

Decided Sept. 14, 1977.

Michael Q. Carey, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., and Frederick T. Davis, Asst. U. S. Atty., New York City, of counsel), for appellee.

Phylis Skloot Bamberger, William J. Gallagher, The Legal Aid Society, New York City, for appellant Frank Joseph Fuentes.

Stuart R. Shaw, New York City, for appellant Carmello Sansone.

Before MESKILL and WATERMAN, Circuit Judges, and WARD, District Judge. ^*

ROBERT J. WARD, District Judge:

Frank Joseph Fuentes ("Fuentes") and Carmello Sansone, a/k/a "Michel" ("Sansone") appeal from judgments of conviction entered January 17, 1977, in the United States District Court for the Southern District of New York, after a seven-day jury trial before Judge Morris E. Lasker.

The indictment, in two counts, charged Fuentes and Sansone with violations of the federal narcotics laws. ¹ The trial commenced on November 9, 1976. On November 22, 1976 the jury found Sansone guilty on Counts One and Two and Fuentes guilty on Count One. ² Sansone was sentenced to concurrent terms of ten years imprisonment on each count, to be followed by a six-year special parole term. Fuentes was sentenced to seven years imprisonment, to be followed by a six-year special parole term.

In challenging their convictions, the appellants do not challenge the sufficiency of the evidence. Rather, they contend that the trial court erred: (1) in admitting into evidence certain tape recordings and transcripts of conversations between an informant and the appellants, without adequate authentication, in violation of their right of confrontation, and without sufficient proof of the informant's consent; (2) in failing to declare a mistrial when the government informant was not produced at trial; (3) in failing to charge the jury on the voluntariness of certain post-arrest statements made by appellant Fuentes; (4) in failing to order a second competency examination by a psychiatrist who spoke appellant Sansone's native languages. We find no error requiring reversal and therefore affirm.

FACTS

The government's proof at trial consisted of the testimony of William Schnakenberg, an undercover agent of the Drug Enforcement Administration ("DEA"), and several surveillance agents. In addition, the government introduced into evidence a series of consent recordings made by a government informant known as "Hugo". Hugo himself did not testify, having disappeared approximately one month before the trial began.

On May 27, 1976, Hugo met Carmello Sansone and, in a recorded conversation, told Sansone that Schnakenberg wanted to purchase as much as ten kilograms of cocaine. In this conversation Hugo also told Sansone that Schnakenberg would first require a sample; if the sample was of acceptable quality, Schnakenberg would then purchase a half kilogram of cocaine. Sansone agreed to furnish Hugo with the sample but emphasized that he did not want to meet Schnakenberg. The conversation ended with Hugo telling Sansone that he would determine whether Schnakenberg would authorize him to receive the cocaine. Later that day, Hugo met Sansone and Frank Joseph Fuentes and had an unrecorded conversation.

The sample requested on May 27 was delivered in the early evening of May 28, when Hugo met Sansone and Fuentes in midtown Manhattan and had another unrecorded conversation. DEA agents observing this meeting testified that Fuentes appeared to pass something to Hugo during the course of their conversation. Shortly thereafter, Hugo delivered a sample of cocaine to Schnakenberg who was waiting in a nearby bar. Schnakenberg immediately instructed Hugo to tell Sansone and Fuentes that he, Schnakenberg, had $20,000 in cash with him and that he was now prepared to purchase the half kilogram. Negotiations continued for two hours, ending in a deadlock due to Schnakenberg's insistence on conditioning the sale on his personally meeting Sansone to make the payment and receive the cocaine.

On June 1, 1976, Hugo again met with Sansone and Fuentes and had a recorded conversation. Hugo carried $20,000 to purchase the half kilogram of cocaine, but Sansone and Fuentes noticed the DEA surveillance team following them and aborted the delivery. However, before this occurred, Fuentes left the car in which they were riding to obtain the package of cocaine, entering an apartment building in upper Manhattan.

The attempts to consummate the sale of the half kilogram of cocaine continued on June 2, 1976. Hugo and Sansone drove around for several hours, continuously trying to determine whether they were being followed. Once again the delivery was aborted.

The repeated meetings between Sansone, Fuentes and Hugo apparently convinced Sansone that Hugo and Schnakenberg were the drug dealers they purported to be, for on June 3, 1976, Sansone allowed Hugo to introduce him to Schnakenberg. Schnakenberg and Sansone then had a lengthy recorded conversation, their first, at the end of which Sansone promised that the delivery of the half kilogram of cocaine would be made that day. However, once again, the delivery was not made.

Finally, on June 4, 1976, Schnakenberg and Hugo met Sansone and again agreed on the delivery of the half kilogram of cocaine. At Sansone's direction, Schnakenberg gave Hugo the $20,000 purchase money and Hugo and Sansone departed. About two hours later, Hugo returned and delivered the cocaine to Schnakenberg.

One week later, Schnakenberg and Sansone met and discussed the poor quality of the one-half kilogram delivered on June 4. To placate Schnakenberg, Sansone agreed to provide him with a free "make-up" package of cocaine. With that matter settled Sansone announced he had more cocaine to sell at $40,000 per kilogram. They then discussed the possibility of a future sale of five kilograms.

On June 15 and 16, 1976, Sansone and Schnakenberg discussed the promised delivery of the make-up package and other possible future narcotics transactions.

The negotiations between Sansone and Schnakenberg came to a close on June 17 and 18. On the 17th, Schnakenberg agreed to meet Sansone the following day to receive a sample of the new cocaine Sansone had obtained. Sansone delivered a small sample of cocaine to Schnakenberg on the 18th after entering an upper Manhattan apartment building, the same building which Fuentes had entered on June 1, 1976 during one of the initial attempts to deliver the half kilogram of cocaine. Later that day, when Schnakenberg told Sansone that he was displeased with the quality of the new cocaine and that he would purchase no more, Sansone tried to reassure Schnakenberg of its purity by stating that he himself had taken the sample from a three kilogram package. Fuentes and Sansone were arrested on August 18, 1976.

DISCUSSION

I. The Admissibility of the Tape Recordings

Both appellants advance various arguments concerning the admissibility of the four tape recordings admitted into evidence at their trial. We find none of appellants' points persuasive.

At trial, the government laid the following foundation for admitting the tape recordings into evidence. On May 27, 1976, DEA agents fitted the informant Hugo with a concealed Nagra tape recorder. Hugo subsequently met with appellant Sansone under the close surveillance of several DEA agents. After this meeting was completed, the agents removed the recorder and tape from Hugo's body, placed the tape in a heat-sealed evidence envelope, and initialed and dated the envelope. On June 1, 1976, DEA personnel installed both a Nagra recorder and a Kel transmitter in an undercover vehicle for Hugo's use in future negotiations with the appellants. Hugo again met with Sansone and with agent Schnakenberg; once again, the entire meeting was conducted under the surveillance of DEA agents. When this meeting was completed these tapes were also placed in heat-sealed evidence envelopes, initialed and dated by DEA agents. In addition, a Kel receiver, tuned to the transmitter placed in Hugo's car, was located in a nearby vehicle and monitored by a member of the DEA surveillance team. On June 2 and 3, 1976, the same procedures for making and preserving the recordings as were employed on June 1 were repeated.

These tapes, which provided a detailed account of the narcotics negotiations between the informant Hugo, the appellants, and agent Schnakenberg, were all admitted into evidence over defense objections based on their inability to confront Hugo and the government's insufficient demonstration of Hugo's consent.

Fuentes now contends as his first point on this appeal that there was an insufficient showing of authenticity and general accuracy of the tape recordings and that the tapes should therefore have been excluded. Relying upon United States v. McKeever, 169 F.Supp. 426 (S.D.N.Y.1958), rev'd on other grounds, 271 F.2d 669 (2d Cir. 1959), ³ appellant urges that because the informant Hugo did not testify at trial the government failed to lay the requisite foundation for the admission of the tape recordings.

The first reason for rejecting this argument is that Fuentes did not object to the adequacy of the government's foundation for admission of the tapes at the time they were introduced, although he had full opportunity to do so. This failure to make timely objection when any inadequacy might have been rectified by the prosecution or resolved by the trial judge's ruling precludes raising the claim at this time. As we recently reiterated "where a party has shifted his position on appeal and advances arguments available but not pressed below . . . , and where that party has had ample opportunity to make the point in the trial court in a timely manner, . . . waiver will bar raising the issue on appeal." United...