U.S. v. Marin

• Decision Date: 15 April 1975
• Docket Number: D,No. 736,736
• Citation: 513 F.2d 974
• Parties: UNITED STATES of America, Appellee, v. Gabriel MARIN, Defendant-Appellant. ocket 74-2606.
• Court: U.S. Court of Appeals — Second Circuit

Page 974

513 F.2d 974

UNITED STATES of America, Appellee, v. Gabriel MARIN, Defendant-Appellant.

No. 736, Docket 74-2606.

United States Court of Appeals, Second Circuit.

Submitted March 3, 1975.

Decided April 15, 1975.

Rubin, Gold & Geller, New York City; Lawrence Stern, Brooklyn, of counsel, for defendant-appellant.

Paul J. Curran, U. S. Atty., S. D. N. Y.; T. Gorman Reilly and John D. Gordan, III, Asst. U. S. Attys., of counsel, for appellee.

Before FRIENDLY and FEINBERG, Circuit Judges, and BARTELS, ^* District Judge.

FEINBERG, Circuit Judge:

Appellant Gabriel Marin was indicted by a grand jury in the United States District Court for the Southern District of New York for possession of one gram of cocaine with intent to distribute it. 21 U.S.C. §§ 812, 841. At appellant's trial, Judge Marvin E. Frankel submitted the case to the jury on a charge of attempted, rather than actual, possession. This change in theory provides the basis for appellant's principal arguments as to why we should set aside his conviction. ¹ Finding no error in these respects or in the others urged upon us, we affirm the judgment of conviction.

I

Although the case is a simple one and took only two days to try, the facts must be set out in detail for a full understanding of the issues on appeal. From the evidence, the jury could have found the following: The chief government witness, Jose Manuel Caicedo, was en route from Bogota, Colombia to New York when he was searched in December 1973, while attempting to clear Customs in New Orleans. Customs agents found bags of cocaine and a piece of paper with defendant's name and telephone number on it as a potential buyer of cocaine. Caicedo was arrested and agreed to cooperate with agents of the Drug Enforcement Administration (DEA). In that enterprise, Caicedo went to New York, reached appellant by telephone, and identified himself by referring to the mutual friend who had furnished Marin's number to Caicedo in Bogota. This call, recorded by DEA agents, contained incriminating references to the "merchandise," its quality and the price ($650 per ounce for the entire six ounces Caicedo had brought with him).

Thereafter, Caicedo and Marin met in a bar while undercover agent Raphael Halperin sat outside in a car. Negotiations ensued over whether Marin would have to exhibit the necessary cash first or whether Caicedo would furnish a sample. The latter demand posed a problem because DEA agents had prepared a "dummy" package for delivery to Marin; the package contained four ounces of quinine and starch and a minute amount of cocaine taken from the plastic bags that Caicedo had smuggled in. When Caicedo balked at the request for a sample, Marin complained that such formal treatment ill suited a customer who had dealt with Caicedo's source before in much larger amounts. After further negotiations, Marin and Caicedo met by prearrangement at 11:00 p. m. the next night on the corner of 57th Street and 9th Avenue. Caicedo said he had spoken with their mutual friend in Bogota and she assured him that Marin could be trusted. Therefore, Caicedo explained, he was willing to trust Marin with the four ounce package. Marin said he would try to pay Caicedo the next day and would then pick up the remaining two ounces. Marin took the dummy package from Caicedo and the two men parted. Marin was arrested almost immediately by agents who had observed the transaction.

While under arrest, Marin admitted that he had met the mutual friend in Bogota, who he said was supplying rock musicians with cocaine to smuggle into the United States. He also admitted that he had met with Caicedo to discuss a cocaine transaction, that Caicedo had given him a four-ounce package of cocaine the night before and that Caicedo had told him that when these four ounces were paid for, he would give him two more. ²

II

During the Government's case, Judge Frankel pointed out to counsel that there was no substantial evidence that appellant had possessed a legally significant amount of cocaine, since the dummy package contained no detectable amount of the substance. ³ The Government thereupon elected to proceed on a theory of attempt alone. From this, appellant has devised a number of arguments for reversal. These are: (1) The indictment for possession of one gram of cocaine was invalid because the grand jury never had sufficient evidence of that offense to indict. (2) Since the jury was never instructed to disregard the possession charge, the general verdict of guilty may have been for a crime never proved. (3) Even on the changed theory, there was no attempt to commit the offense charged in the indictment possession of one gram of cocaine since the only attempt shown was to gain possession of four ounces of cocaine. (4) When arrested, appellant did not yet have "a completely formed belief" about what was in the package. (5) Entrapment was proved as a matter of law. (6) Appellant was entitled to a charge on the misdemeanor offense of simple possession.

The only one of these contentions that gives us pause is the first, but not for long. Under Fed.R.Crim.P. 31(c), a defendant may be found guilty of an attempt to commit a substantive offense, whether or not the attempt was charged in the indictment, provided an attempt is punishable. Here, attempted possession of cocaine is a crime. 21 U.S.C. § 846. In these circumstances, the trier of fact could properly convict for the attempt, for the reasons stated in the admirable opinion of Judge Bryan in United States v. Heng Awkak Roman, 356 F.Supp. 434, 436-38 (S.D.N.Y.), aff'd, 484 F.2d 1271 (2d Cir. 1973), cert. denied, 415 U.S. 978, 94 S.Ct. 1565, 39 L.Ed.2d 874 (1974). There, as in this case, government agents faked the existence of drugs over which the defendants exercised dominion. Judge Bryan held that an attempt was established when "the defendants' actions would have constituted the completed crime if the surrounding circumstances were as they believed them to be." 356 F.Supp. at 434. Appellant argues that even so the indictment is invalid because the grand jury had no proof that appellant possessed narcotics. It may be that we could reject this contention on the ground that it was not made below; defendant's failure to attack the indictment in the trial court obviously prevented the Government from making a proper record on the point. Cf. Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973); United States v. Fistel, 460 F.2d 157, 160-62 (2d Cir. 1972). However, the evidence at trial does indicate that, while Judge Frankel properly found there was insufficient proof of actual possession to support a conviction, there was enough evidence before the grand jury to afford probable...