U.S. v. Pena, s. 663

• Decision Date: 19 June 1986
• Docket Number: Nos. 663,666,D,s. 663
• Citation: 793 F.2d 486
• Parties: UNITED STATES of America, Appellee, v. Alberto PENA, Juan Urena, Defendants-Appellants. ockets 85-1361, 85-1372.
• Court: U.S. Court of Appeals — Second Circuit

Page 486

793 F.2d 486

UNITED STATES of America, Appellee, v. Alberto PENA, Juan Urena, Defendants-Appellants.

Nos. 663, 666, Dockets 85-1361, 85-1372.

United States Court of Appeals, Second Circuit.

Argued Jan. 6, 1986.

Decided June 19, 1986.

Robert J. Anello, New York City (Obermaier, Morvillo & Abramowitz, P.C., New York City, of counsel), for defendant-appellant Alberto Pena.

Lawrence A. Urgenson, New York City (Anderson, Laino & Urgenson, P.C., New York City, of counsel), for defendant-appellant Juan Urena.

David Spears, Asst. U.S. Atty., S.D.N.Y. (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Warren Neil Eggleston, Asst. U.S. Atty., of counsel), for appellee.

Before FEINBERG, Chief Judge, and FRIENDLY ^* and WINTER, Circuit Judges.

WINTER, Circuit Judge:

Alberto Pena and Juan Urena appeal from convictions on one count of conspiracy to distribute heroin and cocaine, 21 U.S.C. Sec. 846, and one count of distribution of heroin, 21 U.S.C. Secs. 812, 841(a)(1), 841(b)(1)(B), resulting from their participation in a drug-selling operation based in a Manhattan restaurant. On appeal, both appellants contend that certain remarks made by the prosecutor during summation deprived them of a fair trial. Also, Pena contends that he was not brought to trial within the time limits established by the Speedy Trial Act, 18 U.S.C. Secs. 3161 et seq. We affirm.

BACKGROUND

The criminal charges at issue in this case grew out of two independent undercover investigations of narcotics sales at Elena's Restaurant, a small eatery located on Avenue B in Manhattan's Lower East Side. The government's proof at trial consisted primarily of testimony about two undercover drug purchases at Elena's, one by a New York City officer and the other by a special agent of the Drug Enforcement Administration ("DEA"). The government also presented evidence that the two transactions were part of an ongoing operation involving both defendants in which "retail" sales of both heroin and cocaine were made.

In November, 1984, DEA informant Manuel Garcia received information that a known heroin dealer was making deliveries to Elena's. On November 20, Garcia went to Elena's, where he met with defendant Juan Urena. Defendant Alberto Pena was also at the restaurant. Garcia expressed an interest in buying some heroin, and Urena introduced him to Sixto and Cesar Caba. The Cabas agreed to sell Garcia one ounce of heroin. Urena was present during these negotiations. That afternoon, Garcia returned to Elena's, and Urena and the Cabas furnished Garcia with a sample of the heroin.

Early that same evening, Garcia returned yet again to the restaurant to pick up the heroin he had previously agreed to buy. DEA Agent Karen Rij accompanied him. Garcia entered the restaurant alone, and returned to Rij's car after being told that the heroin had not yet arrived. The two went back in, and Rij asked Urena and Pena when the package would arrive. Pena stated that it would be there within half an hour. Rij and Garcia left and returned approximately an hour later. Garcia entered and spoke to the defendants, learned that the heroin was ready, and returned to get Rij. Rij entered Elena's and Urena showed her a bag containing a package of white powder. Rij then took Urena to her car, where she gave him $8800 in cash and Urena gave Rij the bag of heroin. Rij and Garcia left the scene, and no arrests were made at that time.

Approximately one month later, an unrelated New York City undercover investigation also found its way to Elena's. On December 18, 1984, undercover officer James Callendar entered the restaurant and made a literally "over the counter" purchase of $80 worth of heroin and cocaine. A woman named Carmen counted out eight $10 bags of drugs while defendant Pena, the only other person on the premises, watched the street, where uniformed officers were patrolling; at one point he warned Callendar to keep the money down below the counter so it would not be seen. Later, Pena helped Carmen count the $80 Callendar had paid. Pena was arrested that day and charged with the sale of the drugs to Callendar. He later pleaded According to the testimony of Miguel Santana, a cousin of Pena's who testified for the government pursuant to a cooperation agreement, these undercover sales were typical of an ongoing narcotics distribution conspiracy in which both Pena and Urena were participants. The woman named Carmen sold $5 and $10 bags of heroin and cocaine to people who came into the restaurant. Pena and Urena handed the bags of drugs to her as needed, and she gave them the money from each sale.

guilty to a felony charge in Supreme Court, New York County.

On January 29, 1985, Pena and Urena were arrested by federal authorities and charged in a complaint with various narcotics offenses. Warrants were also issued for Sixto and Cesar Caba, but neither was apprehended; the Cabas remained at large at the time of argument of this appeal. On February 28, the four were indicted and charged with one count of conspiracy to distribute heroin and one count of distribution of heroin. On May 16, the government obtained a superseding indictment that deleted the Cabas as defendants, lengthened the duration of the conspiracy, expanded its scope to include distribution of cocaine, and added the December, 1984 sale for which Pena had already been arrested as an overt act. Prior to trial, both defendants moved to dismiss the indictment on speedy trial grounds. The district court denied the motion. Trial began on July 15, 1985. The jury convicted Pena and Urena on both counts.

Both defendants now appeal. Pena renews his claim that the extended pretrial period deprived him of his statutory right to a speedy trial. In addition, both defendants claim that certain remarks made by the prosecutor during his summation were so prejudicial as to deprive them of a fair trial.

DISCUSSION

1. Speedy Trial

The Speedy Trial Act requires that a defendant's trial begin within seventy days of his indictment or his first appearance before a judicial officer, whichever is later. 18 U.S.C. Sec. 3161(c)(1). The Act provides for the exclusion of certain periods from computation of the seventy day limit. Id. Sec. 3161(h)(1)-(8).

In this case, Pena appeared before a judicial officer following his arrest in January, 1985. Viewing his argument in the best light, the February 28 indictment triggered the running of his speedy trial clock. The day after the triggering event is the first to be counted for purposes of the statute, United States v. Simmons, 763 F.2d 529, 530 n. 1 (2d Cir.1985), so a total of 137 days passed between February 28 and July 15, the first day of trial. Pena concedes that the period from June 3 to July 15, a total of forty-three days, is properly excludable since several motions were pending during this time. See 18 U.S.C. Sec. 3161(h)(1)(F) (excluding delay resulting from any pretrial motion). This exclusion reduces the relevant figure to ninety-four days. Thus, if twenty-five more days were properly excluded from the speedy trial clock, Pena was brought to trial within the required seventy day limit.

Judge Leisure denied defendants' speedy trial motions to dismiss in a thorough opinion read into the record on July 15 before the start of trial. He found several periods of excludable time, and concluded that there was no speedy trial problem. The most important of these exclusions, and the only one relevant for purposes of this appeal, was the seventy-seven day period from February 28 to May 16, the date of the superseding indictment. This time was excluded pursuant to Section 3161(h)(7), which provides for "[a] reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted." 18 U.S.C. Sec. 3161(h)(7). Since the Caba defendants were fugitives from the date of the original indictment and were never arraigned, the speedy trial clock never began to run as to them. Noting that any delay attributable to one defendant is also charged to all Pena argues that the district court erred in excluding the entire period during which the Cabas were joined as codefendants. Despite Judge Leisure's clear statement that he was excluding the time pursuant to Section 3161(h)(7), most of Pena's argument is focused on Section 3161(h)(3)(A), which allows for exclusion of time because of "the absence or unavailability of the defendant or an essential witness." 18 U.S.C. Sec. 3161(h)(3)(A). He argues primarily that the government did not satisfy its burden under 18 U.S.C. Sec. 3162(a)(2) of showing that the Cabas were unavailable. The government also concentrates primarily on Section 3161(h)(3).

codefendants, see United States v. Piteo, 726 F.2d 50, 52 (2d Cir.1983), cert. denied, 466 U.S. 905, 104 S.Ct. 1682, 80 L.Ed.2d 156 (1984), Judge Leisure thus concluded that the speedy trial clock had been tolled as to all defendants until May 16, when the superseding indictment effectively severed the Cabas from the case.

We believe the parties' reliance on Section 3161(h)(3) is misplaced, and that the exclusion of time pursuant to Section 3161(h)(7) was entirely proper. This conclusion follows from our decision in Piteo. We held there that: (1) under Section 3161(h)(7), cases involving multiple defendants are governed by a single speedy trial clock, which begins to run with the clock of the most recently added defendant, and (2) delay attributable to any one defendant is charged against the single clock, thus making the delay applicable to all defendants. Piteo, 762 F.2d at 52; see also United States v. Barton, 647 F.2d 224, 229 n. 5 (2d Cir.), cert. denied, 454 U.S. 857, 102 S.Ct. 307, 70 L.Ed.2d 152 (1981); United States v. McGrath, 613 F.2d 361, 366 (2d Cir.1979), cert. denied, 446 U.S. 967, 100 S.Ct. 2946, 64 L.Ed.2d 827 (1980).

Under the second principle, time is excluded pursuant to Section 3161(h)(7) in...