U.S. v. Losada

• Decision Date: 12 March 1982
• Docket Number: 515,Nos. 436,D,s. 436
• Parties: 10 Fed. R. Evid. Serv. 57 UNITED STATES of America, Appellee, v. Jesus LOSADA and Rosalinda Losada, Defendants-Appellants. ockets 80-1444, 81-1274. Second Circuit
• Court: U.S. Court of Appeals — Second Circuit

Page 167

674 F.2d 167

10 Fed. R. Evid. Serv. 57

UNITED STATES of America, Appellee, v. Jesus LOSADA and Rosalinda Losada, Defendants-Appellants.

Nos. 436, 515, Dockets 80-1444, 81-1274.

United States Court of Appeals,Second Circuit.

Argued Dec. 16, 1981.

Decided March 12, 1982.

David L. Lewis, New York City (Lewis & Fiore, New York City, on the brief), for defendant-appellant Jesus Losada.

Michael G. Dowd, Kew Gardens, N. Y. (Manton, Pennisi & Dowd, Kew Gardens, N. Y., on the brief), for defendant-appellant Rosalinda Losada.

Diane F. Giacalone, Asst. U. S. Atty., Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., and John B. Latella, Asst. U. S. Atty., Brooklyn, N. Y., on the brief), for appellee.

Before TIMBERS and KEARSE, Circuit Judges, and METZNER, District judge. ^*

TIMBERS, Circuit Judge:

On these appeals from judgments entered upon jury verdicts in the Eastern District of New York, John F. Dooling, District Judge, and Edward R. Neaher, District Judge, convicting both appellants of violations of the federal narcotics laws and convicting one appellant of engaging in a continuing criminal enterprise, we find the following to be the principal claims of error raised on appeal:

(1) Whether dismissal of the conspiracy count required dismissal of the substantive counts against both appellants and dismissal of the continuing criminal enterprise count against one appellant.

We hold that it did not.

(2) Whether the district court abused its discretion in not granting a severance.

We hold that it did not.

(3) Whether there was error in admitting the testimony of a witness from an earlier trial in which appellants were defendants.

We hold that there was not.

(4) Whether one of the appellants was properly convicted of engaging in a continuing criminal enterprise.

We hold that she was.

Other subordinate claims of error are raised, as noted below. See note 5, infra.

We find no merit in any of the claims of error raised. We affirm.

I.

These appeals are sequels to earlier appeals decided by this Court in United States v. Cambindo Valencia, 609 F.2d 603 (2 Cir. 1979), cert. denied, 446 U.S. 940 (1980), with which we assume familiarity. To the extent here relevant, the Court in Cambindo Valencia reversed the convictions of the two named appellants on the instant appeal and remanded their cases for retrial.

After retrial before Judge Dooling, the jury on August 20, 1980 found both appellants-Jesus Losada and Rosalinda Losada-guilty of conspiracy to import, distribute, and possess cocaine with intent to distribute it from 1972 to 1976 in violation of 21 U.S.C. §§ 846 and 963 (1976) (Count I); of importing cocaine in violation of 21 U.S.C. § 960 (1976) (Count II); and of possessing cocaine with intent to distribute it in violation of 21 U.S.C. § 841 (1976) (Count III). In addition, the jury convicted Rosalinda of conspiring to import, distribute, and possess cocaine with intent to distribute it in 1977 in violation of 21 U.S.C. §§ 846 and 963 (1976) (Count IV); and of engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848 (1976) (Count V).

Prior to retrial, Jesus had moved to dismiss the conspiracy count (Count I) on the ground of double jeopardy. Judge Dooling deferred ruling on this motion until after trial, at which time he granted it. Jesus was sentenced by Judge Dooling to eight years imprisonment, to be followed by five years of special parole, on Counts II and III, the sentences on these counts to run concurrently. Jesus presently is on bail pending appeal.

After Judge Dooling died, Judge Neaher granted Rosalinda's motion to dismiss the conspiracy count (Count I) because of the government's failure to honor a plea agreement. He sentenced her to ten years imprisonment on Count V and to three years imprisonment on Counts II, III and IV. He ordered her sentences on Counts II, III and IV to run concurrently with each other and with her sentence on Count V. He also sentenced her to concurrent five year terms of special parole on Counts II and III, following her release from prison. She is now is prison serving her sentence.

II.

There was evidence from which the jury could have found as follows.

Jesus and Rosalinda were engaged in a large drug conspiracy. Witnesses described several drug transactions in which Colombian cocaine illicitly imported into the United States was delivered to Rosalinda in her apartment. An important witness, John Canzoneri, testified that he purchased some cocaine from her in 1974, paying in cash, and saw her give the money to Jesus. Canzoneri testified that she explained to him the details of the drug network.

Since one Augustine Lemos was living in Colombia and was unavailable at the time of trial, the government introduced his testimony from the prior 1978 trial where the Losadas were defendants. Lemos testified that he and another man arranged to import cocaine for Jesus and had had meetings with him. Freddie Williams, who was supposed to take the cocaine from the ship to Jesus, was arrested and five kilograms of cocaine were seized from him. Canzoneri testified that Rosalinda told him that the seized cocaine belonged to her and Jesus. He further testified that she said she would arrange for bail for Williams.

Canzoneri also testified that in late August 1974 Rosalinda offered to sell some cocaine on consignment to him. He was arrested while attempting to sell the cocaine (which turned out to be lidocaine) to an undercover agent.

By late 1975, Rosalinda and Jesus were living apart. Rosalinda continued her dealings in cocaine. Several witnesses testified that they saw cocaine in Rosalinda's safe deposit box. Others testified that they paid cash to her for cocaine.

In September 1977, Rosalinda and the man whom she later was to marry traveled to Colombia to arrange for a shipment of cocaine. Eventually she and others were arrested. A search produced letters in code which, when deciphered, indicated that cocaine would be delivered to Rosalinda and others from a Colombian ship. When the ship was searched, a package of lidocaine was discovered.

There was a great deal of other evidence. The foregoing summary, however, is believed to be adequate to an understanding of the issues on this appeal.

III.

We turn first to the principal claims of error raised by appellant Jesus Losada.

Jesus was convicted on the conspiracy count and on the substantive counts of possessing and importing cocaine. Following his conviction, Judge Dooling dismissed the conspiracy count on the ground of double jeopardy. He did not disturb the convictions on the other two counts.

Jesus argues that the court should have dismissed the substantive counts because of prejudicial spillover. He claims that evidence was admitted which would have been inadmissible if the conspiracy count had been dismissed before trial. Such evidence, according to Jesus, increased the likelihood that the jury would convict on the substantive counts.

There is no automatic rule requiring reversal of convictions on substantive counts when a conspiracy count has been dismissed on the ground of double jeopardy either at the close of the government's case or after the verdict has been returned. Pacelli v. United States, 588 F.2d 360, 366-67 (2 Cir. 1978), cert. denied, 441 U.S. 908 (1979).

In United States v. Variano, 550 F.2d 1330 (2 Cir.), cert. denied, 433 U.S. 912 (1977), we stated the standard to be applied in such a situation. "Appellants can only succeed in this argument if they show bad faith on the part of the Government in bringing the conspiracy charge, or if they show prejudice." Id. at 1334. The reviewing court must consider the number of substantive counts, the number of defendants, the length of the trial and the amount of evidence against each defendant. Id. The court also should consider whether there would have been any significant change in defense strategy if the conspiracy count had not been present. Pacelli, supra, 588 F.2d at 366.

In the instant case, only the two appellants were charged and only two substantive counts were involved. The instant case is significantly different from United States v. Branker, 395 F.2d 881, 887-89 (2 Cir. 1968), cert. denied, 393 U.S. 1029 (1969), where the Court found prejudice as to four of eight defendants named in only a few of eighty counts and where a long trial had taken place. The trial in the instant case required three weeks, which is not exceptionally long. Jesus does not claim that his trial strategy would have been different. This was not a case of Jesus becoming "lost" in the evidence against a multitude of other defendants. See generally United States v. Scafidi, 564 F.2d 633, 642 (2 Cir. 1977), cert. denied, 436 U.S. 903 (1978); United States v. Ong, 541 F.2d 331, 336-38 (2 Cir. 1976), cert. denied, 429 U.S. 1075 (1977).

We find unpersuasive Jesus' claim of prejudice resulting from the court's refusal to dismiss the two substantive counts. He contends that there was incurable spillover from the "massive" evidence against his wife. We discuss this contention more fully in section IV of this opinion. In short, a review of the evidence persuades us that Judge Dooling was correct in ruling that "(i)f any evidence prejudiced the jury's consideration of Jesus Losada's case on Counts (II and III), it was the evidence of his own acts and not evidence of others' acts which 'spilled over' on him."

Finally, there was no error in any event because, even without the conspiracy count, testimony as to out-of-court statements of co-conspirators would have been admissible to prove substantive acts. Pacelli, supra, 588 F.2d at 367 & n.21; accord, United States v. Cambindo Valencia, supra, 609 F.2d at 641 (order on petition for rehearing); United States v. Ruggiero, 472 F.2d 599, 607 (2 Cir.), cert. denied, 412 U.S. 939 (1973).

We hold that dismissal of the conspiracy count does not require reversal of the substantive counts.

IV.

Jesus argues that the...