U.S. v. Pitre
| Citation | 960 F.2d 1112 |
| Decision Date | 30 March 1992 |
| Docket Number | Nos. 004,D,005,003 and 006,s. 004 |
| Parties | 35 Fed. R. Evid. Serv. 390 UNITED STATES of America, Appellee, v. Joseph PITRE; Edwyn Pitre; Angel M. Otero; Richard Pitre, Defendants-Appellants. ockets 90-1558, 90-1559, 90-1573 and 90-1574. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Barry M. Fallick, New York City (Bobbi C. Sternheim, Rochman Platzer Fallick & Rosmarin, New York City, of counsel), for defendant-appellant Joseph Pitre.
Kenneth W. Salaway, New York City, (Salaway & Schreiber, New York City, of counsel), for defendant-appellant Edwyn Pitre.
Russell M. Leisner, Forest Hills, N.Y., for defendant-appellant Angel M. Otero.
Roger B. Adler, New York City, for defendant-appellant Richard Pitre.
Elizabeth Glazer, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y., Gerard E. Lynch, Asst. U.S. Atty., New York City, of counsel), for appellee.
Before MESKILL, PIERCE and MAHONEY, Circuit Judges.
On August 3, 1989, the government filed a three-count indictment against each of the appellants and three other individuals, Wai Yip Lin, a/k/a "Sonny", Anan Peter Peechaphand, and Mark Larotonda. Count One, the only count in which the four appellants were named, charged all seven defendants with conspiring to distribute and possess with intent to distribute heroin in violation of 21 U.S.C. § 846. 2 The indictment alleged that on July 13, 1989, near South and John Streets in Manhattan, Lin and Peechaphand met with an undercover agent of the Drug Enforcement Administration ("DEA") and discussed a proposed heroin transaction. According to the indictment, that same day, defendants Lin, Peechaphand, Richard Pitre, Edwyn Pitre, Joseph Pitre, Otero, and Larotonda drove to the area of Orchard and Division Streets in Manhattan, where Richard Pitre displayed approximately $630,000 in cash to a DEA agent in the presence of each defendant except Larotonda.
At trial, Robert Hom, a detective with the New York City Police Department, assigned to the DEA's Southeast Asian Heroin Task Force, testified that he became involved in an investigation of Peechaphand in June of 1989. Hom testified that while posing as an undercover narcotics dealer, he was introduced to Peechaphand by Lin after Hom told Lin that he was interested in purchasing cocaine. According to Hom, on June 20, 1989, he purchased cocaine from Peechaphand for $10,000. Hom testified that, on July 11, 1989, "Lin told me that he was looking to buy some heroin, and [asked whether] I had any." Hom responded that he had ten "pieces" available. He explained, while testifying, that Asian heroin is packaged in "units" or "pieces" and that a unit is "a pound and a half of heroin, which is equal to 700 grams." Lin told Hom that he could take the heroin because he had some "buyers in Brooklyn." Hom and Lin discussed how the transaction would proceed: Lin was to bring the buyers with the money; Hom was to bring the heroin; the buyers would look at the heroin and Hom would look at the money.
Peechaphand, testifying for the government, stated that a few days before July 13, 1989, he contacted Richard Pitre by beeper and met with him in Brooklyn to ask him if he was interested in purchasing Later that day, Peechaphand contacted Richard Pitre by beeper and Richard Pitre and he met to discuss the transaction. Peechaphand stated that he informed Richard Pitre that he had seen the heroin and that the price was $90,000 per unit. According to Peechaphand, Richard Pitre agreed to the price and told him that he would contact him after determining how much money he had available. Peechaphand testified that Richard Pitre returned approximately ten minutes later, informed him that he could only afford seven units, and asked him for the three remaining units on credit. Peechaphand refused this request. Peechaphand then contacted Lin who, after conferring with Hom, informed Peechaphand that Hom would be willing to sell seven units. Peechaphand testified that Richard Pitre stated that he would be ready sometime later that night.
the heroin. According to Peechaphand, Richard Pitre expressed interest. Peechaphand then contacted Lin who indicated he would contact Hom. Hom testified that Lin contacted him, using a beeper, and that in a subsequent telephone conversation, Lin stated that the "[buyers] in Brooklyn" wanted Lin to see the "merchandise before they got their money together." On July 13, 1989, at approximately 2:15 p.m., Lin and Peechaphand met Hom near South and John Streets in Manhattan. Upon the arrival of Lin and Peechaphand, Hom signaled Special Agent Tim Lum to drive a car, containing a zippered bag with what was purportedly twelve units of heroin, to South Street. When Lum drove up and parked on South Street, Hom displayed the contents of the bag to Peechaphand. Lin told Hom that he would contact Hom "later on."
Sometime after 5:30 p.m., on July 13, 1989, discussion ensued between Peechaphand and Hom as to where the transaction should take place. Peechaphand stated to Hom that "my people, we only like to do it in Queens," and "[w]e [are] not familiar with doing a transaction in Manhattan." However, Peechaphand and Hom eventually determined that the transaction would take place near the area of Allen and Delancey Streets in Manhattan. Peechaphand testified that he called Richard Pitre and after some discussion, Richard Pitre agreed to conclude the transaction in Manhattan. Peechaphand and Larotonda drove into Manhattan to the vicinity of Orchard and Division Streets where Peechaphand informed Larotonda the transaction would take place. Peechaphand and Larotonda then returned to Brooklyn. In addition, Peechaphand testified that he had told Lin that Hom agreed to meet at Allen and Delancey Streets. Lin was also informed, by Peechaphand, that Larotonda, Richard Pitre, and Peechaphand were going to be at Orchard and Division Streets.
Hom testified that, at approximately 9:30 p.m., he proceeded to Delancey and Allen Streets where he met Lin. Lin informed him that Peechaphand was "in Brooklyn getting the money with the ... guys." According to Hom, Lin instructed Hom to follow him approximately eight blocks to Orchard and Division Streets, an area Hom described as "deserted." At approximately 9:40 p.m., Richard Pitre, driving a black and gray Nissan Pathfinder, followed by other cars, met Peechaphand and Larotonda in Brooklyn. Peechaphand testified that when he asked Richard Pitre why there were so many cars and people, Richard Pitre responded: "No problem." Thereafter, Peechaphand and Larotonda, travelling in a white Nissan Maxima, headed toward Manhattan followed by the Pathfinder and the other cars.
Hom testified that, while standing with Lin on Division and Orchard Streets, he noticed Peechaphand's car drive past him. According to Peechaphand, Larotonda parked the Maxima on one side of Division Street while the cars following it parked on the other side of the street. While Larotonda went to talk with Lin, Peechaphand crossed the street to talk with Edwyn Pitre, Richard Pitre, and one Jose Rodriguez. According to Peechaphand, Edwyn Pitre told Peechaphand that there was "somebody in a parked car." Peechaphand then approached Lin and Hom on Division and Orchard Streets, and stated that there were "some people" in a Mercedes parked on Division Street. According to Peechaphand Peechaphand, accompanied by Lin, then introduced Hom to Richard Pitre. Lin, testifying for the government, stated that when he asked Richard Pitre why there were so many people, Richard Pitre responded: "[T]hey are here to carry the money." Hom testified that Richard Pitre led him to the rear of the Pathfinder where Edwyn Pitre and Rodriguez were standing. According to Hom, one of these two men told Richard Pitre that the money was in the other car. Richard Pitre then led Hom to a Ford Mustang, which was parked in front of the Pathfinder. Hom testified that Joseph Pitre was seated in the driver's seat of the Mustang. Richard Pitre opened the door of the Mustang, reached into the back seat, unzipped a bag, and showed Hom that it contained money. Hom testified that he entered that car, looked at the individual sitting in it, looked at the money, and put his hand in the bag to see if it was filled with money. According to Hom, Richard Pitre said: "That's this, and there's another bag." Richard Pitre then led Hom to a Suzuki Samurai, which was parked in front of the Mustang, opened up a bag of money on the front seat, and stated: "That's the rest of the money." Hom testified that Otero was seated in the driver's seat of the Samurai.
Hom stepped in and stated that they were his friends. Peechaphand testified that when
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