U.S. v. Resto, 1272

• Decision Date: 21 July 1987
• Docket Number: D,No. 1272,1272
• Parties: UNITED STATES of America, Appellee, v. Felix RESTO, Appellant. ocket 87-1124.
• Court: U.S. Court of Appeals — Second Circuit

Page 210

824 F.2d 210

UNITED STATES of America, Appellee, v. Felix RESTO, Appellant.

No. 1272, Docket 87-1124.

United States Court of Appeals Second Circuit.

Argued June 16, 1987.

Decided July 21, 1987.

Mark C. Hansen, Asst. U.S. Atty. (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., and Kenneth Roth, Asst. U.S. Atty., of counsel), for appellee.

Minna Schrag, New York City (Andrew W. Reich, Proskauer, Rose Getz & Mendelsohn New York City, of counsel), for appellant.

Before OAKES, MESKILL and PRATT, Circuit Judges.

OAKES, Circuit Judge:

Felix Resto appeals from his conviction following a jury trial in the United States District Court for the Southern District of New York, Vincent L. Broderick, Judge, for aiding in a sale of "crack" within 1,000 feet of a school in violation of 21 U.S.C. Secs. 812, 841(a)(1), 845(a). Resto was sentenced to two years' imprisonment, a consecutive six-year special parole term, and a $50 assessment. His contentions on this appeal are, first, that there was insufficient evidence to convict him; second, that the prosecutor made improper remarks during summation; and, third, that the method of jury selection used by the court deprived him of a fair trial. We affirm.

The Government's case against Resto consisted entirely of the testimony of New York City police officer Hector Vega. At trial, Officer Vega testified that on August 7, 1985, he was assigned to make undercover narcotics purchases in the Washington Heights area of Manhattan. This area, on the New York side of the George Washington Bridge, is known as a place where crack and other drugs are openly sold, frequently to buyers who are going to or have come from New Jersey. While patroling with a partner through Washington Heights in an unmarked car bearing New Jersey license plates, Vega spotted Resto standing alone on the sidewalk in front of 575 West 177th Street. Vega made "eye-to-eye" contact and exchanged gestures with Resto, who said "get the car out of there." After Vega's partner moved the car, Vega got out and walked back to where Resto was standing. Vega testified that Resto "warned me about parking the car in front of the place and told me not to do it again." Vega then asked Resto if he "had anything," and Resto said "how many are you looking for?" Vega said "five," and Resto pointed to a nearby alleyway. At the end of the long, narrow alley in a spot not visible from the street, Vega met Jorge Torres, Resto's codefendant, and purchased three vials of crack for $30. Both Torres and Resto were later arrested by other officers. At the time of his arrest, Resto had no drugs or any of the recorded "buy money" on his person.

Vega, who has made 150 undercover purchases, also testified as an expert on the role of "steerers" in street crack sales. According to Vega, a steerer usually aids in the drug sale by standing a short distance away from the carrier of the drugs, soliciting or screening potential buyers, and guiding buyers to the carrier, who then completes the sale. A steerer may be part owner of the drugs being sold, or may simply receive a share of the proceeds after the sale. While Vega's testimony strongly suggests Resto was a steerer, he did not directly identify Resto as a steerer.

Resto did testify on his own behalf. He painted a rather different picture of his role in the transaction. He stated that he lived about one block west of the site of the arrest and that he knew that drugs were commonly sold in the area. According to his testimony, on August 7 he was returning to his apartment after an unsuccessful attempt to collect his pay for some work he had done the day before. He stopped on the sidewalk to speak to a friend and realized from the number of people going into the alleyway at 575 West 177th Street that drugs were being sold somewhere down the alley. When Resto and his companion were approached by Vega, Resto "nodded his head" toward the alley, thinking it quite obvious that that was where drugs could be purchased. Resto testified that he then returned to his apartment, got his wallet, and left to visit his girlfriend. On his way he bought a soda, and he was then arrested as he walked east on West 177th Street, across the street from the alleyway where Vega had purchased the drugs from Torres.

In light of the above testimony, we agree with Judge Broderick's observation that the evidence against Resto was "thin," particularly because no narcotics or buy money were found on Resto and there was no express showing of contact or cooperation between Resto and Torres. Nonetheless, under Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), we must uphold a conviction if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis in original.) See also United States v. Badalamenti, 794 F.2d 821, 828 (2d Cir.1986). Here, Vega's testimony presented the jury with three acts that tied Resto to the drug sale: Resto scolded Vega for stopping the car near where the sale was to take place and told him "not to do it again"; he asked Vega "how many are you looking for"; and he directed Vega to the alleyway where Torres was selling "crack." On these facts, the jury, believing Vega's testimony, could reasonably have found that Resto was a "steerer" for the crack sale by Torres.

United States v. Ford, 771 F.2d 60 (2d Cir.1985), and United States v. Brown, 776 F.2d 397 (2d Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1793, 90 L.Ed.2d 339 (1986), relied on by Resto, are inapposite, as in both of those cases we upheld a jury verdict against a sufficiency challenge, to be sure over the dissent of the author of this opinion. In Ford the defendant said, "How many do you want," but did nothing more, and was merely present along with two others during the cocaine sale. 771 F.2d at 61. In Brown, which involved a conspiracy conviction (the jury was unable to reach a verdict on an aiding and abetting charge), defendant simply said about the purchaser, "He looks all right to me," and to the seller, "Just go and get it for him." 776 F.2d at 399. Thus, in light of Vega's testimony and our previous affirmance of convictions based on similarly "thin" facts, we conclude that Resto has not met his "heavy burden" of showing that the jury's verdict is based on insufficient evidence. See United States v. Grubczak, 793 F.2d 458, 462-63 (2d Cir.1986).

Resto also argues that the prosecutor made several remarks during summation that were improper and merit reversal. Viewing the prosecutor's comments in the context of the trial and the summations in their entirety, as we must, see United States v. Bagaric, 706 F.2d 42, 58-61 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 134, 78 L.Ed.2d 128 (1983), we find that the remarks were permissible responses to contentions made by defense counsel in her summation. In particular, in rebuttal summation, the prosecutor responded to the claim that Resto's testimony was merely "confused" by saying, "[T]hose are nice words to try and cover up what are really flat out-and-out lies." In the context of responding to the defense claim that Vega was exaggerating the facts, the prosecutor stated, "[I]f you believe that Officer Vega would completely make up a story to frame an innocent person, then ... it is your duty to ... acquit Mr. Resto," and, "Compare the interest of Mr. Resto in telling you a lie, compared with the interest of Officer Vega." In United States v. Peterson, 808 F.2d 969, 977 (2d Cir.1987), this court stated that "[u]se of the words 'liar' and 'lie' to characterize disputed testimony when the witness's credibility is clearly in issue is ordinarily not improper unless such use is excessive or is likely to be inflammatory." Here, the prosecutor's remarks were neither excessive nor inflammatory.

Similarly, we find no ground for reversal in the prosecutor's references to specific defense tactics as "slick bits" and "slyness" or in his statements that the defense engaged in "sleight-of-hand" and tried to pull the wool over the jury's eyes. These comments on the defense counsel's conduct were improper and Judge Broderick properly reprimanded the prosecutor for making them. The prosecutor's remarks were not, however, so egregious as to warrant reversal. Cf. United States v. Biasucci, 786 F.2d 504, 514 (2d Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 104, 93 L.Ed.2d 54 (1986) (finding that prosecutor's insulting remarks about defense counsel were improper, but did not require reversal).

This brings us, then, to Resto's challenge to the method of jury selection used by the district...