U.S. v. Santana

• Decision Date: 09 December 1974
• Docket Number: D,Nos. 1114,74-1567 and 74-1460,1115 and 1163,Nos. 74-1080,s. 1114,s. 74-1080
• Citation: 503 F.2d 710
• Parties: UNITED STATES of America, Appellee, v. Ralph SANTANA et al., Appellants. ocket
• Court: U.S. Court of Appeals — Second Circuit

Page 710

503 F.2d 710

UNITED STATES of America, Appellee, v. Ralph SANTANA et al., Appellants.

Nos. 1114, 1115 and 1163, Docket Nos. 74-1080, 74-1567 and 74-1460.

United States Court of Appeals, Second Circuit.

Argued June 21, 1974.

Decided Aug. 19, 1974, Certiorari Denied Dec. 9, 1974, See

95 S.Ct. 632.

Albert J. Krieger, New York City (Alan F. Scribner, New York City, of counsel), for appellant Santana.

Irving Anolik, New York City, for appellant Quinones.

Joel A. Brenner, Mineola, N.Y. (Diller & Schmukler, New York City, of counsel), for appellant Rivera.

Jeffrey Harris, Asst. U.S. Atty. (Paul J. Curran, U.S. Atty. S.D.N.Y., S. Andrew Schaffer, Asst. U.S. Atty., New York City, of counsel), for appellee.

Before SMITH and MANSFIELD, Circuit Judges, and BARTELS, ^* District judge.

MANSFIELD, Circuit Judge:

In January 1974, following a jury trial before Judge Dudley B. Bonsal in the Southern District of New York, appellants Ralph Santana, Herman Rivera and Horacio Quinones, who were named with numerous others (10 co-defendants and 10 co-conspirators) in an indictment charging them with participation in a far-flung international 'French connection' type narcotics conspiracy in violation of 21 U.S.C. 173 and 174, were convicted. ¹ Upon this appeal each asserts numerous claims of error. Their convictions are affirmed.

The proof, viewed in the light most favorable to the Government, reveals the existence for some 3 1/2 years of a continuing conspiracy to purchase large quantities of heroin from suppliers in France, which were smuggled into the United States for sale and distribution here. The core operators were Edouard Rimbaud, a French purveyor of narcotics, and Antonio Flores, an American buyer. Theirs was the continuing relationship from which the acts of the other conspirators derived their meaning and purpose. The Rimbaud-Flores conspiracy began in 1968 when it was formed through the offices of Joseph Lucarotti, a Frenchman then serving a term in the Atlanta Federal Penitentiary ('Atlanta' herein). Lucarotti wrote from the penitentiary to Rimbaud, then in France, informing him that Lucarotti had a buyer for any heroin that Rimbaud might be able to supply. Rimbaud replied that he had a heroin source but no money to make the initial purchase in France. Lucarotti informed Rimbaud that he had an associate whose wife would provide him with $16,000 for this purchase.

The scene then shifted to Montreal. In 1968 Rimbaud arrived there from France and promptly sent a telegram to a New York address that Lucarotti had provided as that of his associate's wife. Several days later Lillian Santana, wife of appellant Ralph Santana, who was a prison-mate of Lucarotti in Atlanta, appeared at the Montreal hotel where Rimbaud was staying. After they discussed the sale she departed and later returned to the hotel with the $16,000 for the purchase of heroin. Equipped with these funds, Rimbaud arranged for the shipment of five kilograms of heroin from France to Montreal. The plan went awry, however, when one of Rimbaud's men, upon arrival at the Montreal airport, was forced to discard the heroin in order to avoid detection. When told of the mishap, Lillian Santana remarked that it would bother her husband. A few days later she arranged a direct meeting in Montreal between Rimbaud and Flores, the purchaser, at which Rimbaud advised Flores to come to France himself to pick up the next shipment of heroin.

Rimbaud returned to France and located more heroin for Flores. Flores then arrived in Paris accompanied by appellant Herman Rivera and one John 'Buggy' Brown. Rimbaud, Flores and his companions next travelled to Avignon, France, where the delivery of two kilograms of heroin was made. At this point Flores returned to the United States, leaving to Rivera the task of smuggling the heroin into this country, which he completed successfully with the help of Brown. The heroin was delivered to Flores in New York.

For a period the Rimbaud-Flores arrangement established through Mrs. Santana worked smoothly. In January 1969, for instance, Rimbaud advised Flores in New York that he could ship 20 kilos of heroin from France to Montreal, which Flores agreed to buy at a price of $10,000 per kilo. The heroin was then smuggled into Canada through a courier, Edmund Taillet, who secreted it in musical instruments, and was delivered to Flores in two installments, payment being made by Flores to Rimbaud in Montreal.

Two months later Rimbaud was arrested in New York for his part in an unrelated narcotics transaction and held at the West Street Federal Detention Headquarters ('West Street' herein) in New York. Coincidentally, Flores found himself detained at West Street at the same time. During their sojourn there Flores attempted unsuccessfully to acquire from Rimbaud the name of the latter's French supplier. When flores was released, he promised Rimbaud that he would send him an attorney. A few days later appellant Horacio Quinones appeared in court and announced that he was representing Rimbaud. During his subsequent interviews with Rimbaud at West Street, Quinones pressed Rimbaud for the name of his French source. Rimbaud consistently refused to divulge his source because he still entertained hopes of raising his bail (fixed at $75,000) and returning to his own drug operations. As part of his plan to raise his bail money, Rimbaud enlisted the aid of Quinones in smuggling letters in and out of West Street. The letters directed one of Rimbaud's associates in France to smuggle two kilograms of heroin into the United States, secreted inside ski poles. The bail-raising plan collapsed, however, when the police intercepted the ski poles.

With his hopes of bail thus dashed, Rimbaud agreed to reveal the name of his French heroin source to Quinones. Quinones also prevailed upon Rimbaud to raise $7,500 in payment for the 'legal' services being rendered by Quinnones. (Flores had already paid Quinones $1,000 for taking the Rimbaud case.) Rimbaud told Quinones that an associate in France would pay him the $7,500. Quinones and Flores then traveled to France, Quinones to collect his $7,500, Flores to make his French connection. Thenceforth Flores conducted an extensive heroin smuggling business directly with Rimbaud's suppliers in France, who from 1969 to 1971 made a series of shipments through their courier, Edmund Taillet, to Flores and his successor, Anthony Segura, in New York.

Meanwhile Rimbaud languished in jail and in 1971 was sent to Atlanta to serve his sentence. There he met Ralph Santana, who expressed strong displeasure at Flores' handling of the drug purchases, stating that Flores had failed to pay his wife the $1,000 per kilo which apparently had been agreed upon as a commission for connecting Flores with the French heroin suppliers.

As this synopsis of the evidence suggests, each appellant was charged with a distinct part in furthering the overall conspiracy. Santana's role lay in connecting Flores with Rimbaud and the French suppliers. Rivera participated by smuggling a shipment of heroin that Flores had purchased from Rimbaud. Quinones passed information from Rimbaud to Flores and from Rimbaud to his associate in France. The jury concluded that each of the appellants had thus played a role in the conspiracy.

DISCUSSION

Santana's Claims

Santana's principal claim is that there was insufficient evidence to establish his participation in the conspiracy, independent of hearsay evidence admitted pursuant to the co-conspirator exception. See Brown v. United States,150 U.S. 93, 14 S.Ct. 37, 37 L.Ed. 1010 (1893). The settled rule in this Circuit, see United States v. Geaney, 417 F.2d 1116, 1120 (1969), cert. denied sub nom. Lynch v. United States, 397 U.S. 1028, 90 S.Ct. 1276, 25 L.Ed.2d 539 (1970), is that the jury will be permitted to consider such hearsay only if the trial judge determines that the prosecution has proved the defendant's participation in the conspiracy by a fair preponderance of the evidence independent of coconspirators' declarations. In this case the judge concluded that the prosecution had carried this burden. We agree.

The process of compartmentalizing hearsay and nonhearsay proof of conspiracy for the purpose of separately weighing the latter can sometimes be a difficult task, even for the experienced trial judge, principally because of the risk that incriminating hearsay may unconsciously influence the court's evaluation of relatively weak non-hearsay. In the present case the hearsay evidence against Santana was indeed strong. Following Lucarotti's letter to Rimbaud to the effect that his associate's wife would deliver the $16,000 needed to commence the drug smuggling operation and the loss of the first shipment jettisoned in Montreal, Mrs. Santana remarked to Rimbaud that her husband would be disturbed by this loss. However, the nonhearsay evidence against Santana was scarcely less damaging. First of all, there was persuasive circumstantial proof of Santana's role. At the time when Lucarotti sent the message to Rimbaud that he (Lucarotti) had an associate in Atlanta whose wife would give Rimbaud $16,000 for the heroin, both Lucarotti and Santana were imprisoned at Atlanta. The appearance of Mrs. Santana shortly thereafter in Montreal with $16,000 for Rimbaud's use provides the basis for a strong inference that the arrangement had been made through her husband, who was acting as a link in the chain connecting Lucarotti and Rimbaud. Coupled with this circumstantial evidence is the direct admission later made by Santana to Rimbaud, after the latter became a prisoner in Atlanta, complaining that after he and his wife had connected Rimbaud and Flores the latter had failed any longer to make the agreed upon commission payments of $1,000 per kilo to Santana's wife. This admission, which falls outside the proscription of the hearsay rule, would probably be sufficient in itself to establish Santana's participation...