U.S. v. Torres
| Decision Date | 29 April 1988 |
| Docket Number | 726 and 791,D,700,Nos. 790,s. 790 |
| Parties | UNITED STATES of America, Appellee, v. Hector TORRES, Bolivar De Leon, Luis Valenzuela and Secundino De Los Santos, Defendants-Appellants. ockets 87-1410, 87-1413, 87-1423 and 87-1455. |
| Court | U.S. Court of Appeals — Second Circuit |
Bert H. Nisonoff, Forest Hills, N.Y., for defendant-appellant Torres.
Robert E. Precht, New York City (The Legal Aid Soc., Federal Defender Services Unit), for defendant-appellant Valenzuela.
Michael S. Jacobs, New York City (McGee & Jacobs, of counsel), for defendant-appellant De Los Santos.
Philip Katowitz, Brooklyn, N.Y., for defendant-appellant De Leon.
Andrew C. McCarthy, New York City, Asst. U.S. Atty., S.D.N.Y. (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Celia Goldwag Barenholtz, Asst. U.S. Atty., of counsel), for appellee.
Before FEINBERG, Chief Judge, PRATT, Circuit Judge and DORSEY, District Judge. *
Hector Torres, Bolivar De Leon, Luis Valenzuela and Secundino De Los Santos appeal from judgments of conviction entered in the United States District Court for the Southern District of New York after a jury trial before Judge John F. Keenan, J., based upon a two-count indictment. Count One charged all four appellants with conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. Sec. 846. Count Two charged Torres, De Leon and Valenzuela with possession of two kilograms of cocaine with intent to distribute in violation of 21 U.S.C. Secs. 812, 841(a)(1) and 841(b)(1)(B). Appellants were convicted on all counts. Torres, De Leon and Valenzuela each received a six-year suspended sentence on Count One; nine, seven, and six years imprisonment, respectively, on Count Two; and four years probation. De Los Santos received four years imprisonment on Count One.
On appeal, Torres and De Los Santos claim that the evidence was insufficient to sustain the guilty verdicts against them. De Leon and Valenzuela argue that the district court erred in refusing to give a "missing witness" charge against the government and in suggesting in its charge that the missing witness, a government informant, was equally available to both sides even though the informant refused to be interviewed by defense counsel. Several other claims are also raised. For the reasons given below, we affirm the judgments of conviction.
At trial, the government's evidence consisted primarily of the testimony of Ramon Leader, a confidential government informant, and Arthur Kersey, a Drug Enforcement Administration ("DEA") surveillance agent. These witnesses testified as to the following facts. In April 1987, Leader and another confidential informant, Jacquin Rubio Fornier, met with De Los Santos and discussed purchasing two kilograms of cocaine for $52,000. The next day, the informants met De Los Santos and De Leon at the MiNido Taverna, a bar in northern Manhattan. De Leon indicated that he would introduce the informants to his "brother" who had "the connection" to the cocaine. De Leon left the bar and met Valenzuela up the street at Jon's Car Bar. Several minutes later, De Leon returned with Valenzuela and introduced him to the informants as his "brother." Valenzuela, in the presence of De Leon and De Los Santos, told the informants that they could buy two kilograms of cocaine for $52,000 or could wait a few hours and buy the cocaine from another source for $44,000. Leader indicated that he did not want to wait and would pay the higher price. Valenzuela then left to make a telephone call.
Approximately 30 minutes later, Torres arrived at MiNido and met Valenzuela out front. Torres then entered the bar, but apparently did not approach De Leon. However, De Leon pointed Torres out to Leader as the source of the cocaine. Valenzuela then entered the bar, spoke briefly with Torres, and the two of them then drove away in Torres's car. De Leon, De Los Santos and the two informants went outside and waited for Valenzuela to return. At one point a car pulled up and De Leon, nervous that the man exiting the car was a policeman, indicated that he was going to place a telephone call in order to "stop Mr. Torres from bringing over the dope."
Becoming impatient with the delay, Leader crossed the street to make a telephone call. From this vantage point, he saw Torres park his car and gesture to De Leon. Kersey heard Torres say something in Spanish to De Leon. Leader also saw Valenzuela cross the street with a black brief case about half a block away from Torres and walk towards Jon's Car Bar. De Leon motioned for Leader to follow him and Leader did so. De Leon, De Los Santos and the two informants met Valenzuela in front of Jon's Car Bar while Torres stood in front of MiNido. Leader, De Leon and Valenzuela then went into the bathroom at Jon's Car Bar, where De Leon and Valenzuela opened the brief case and displayed two kilograms of cocaine.
After Leader insisted that the purchase money be delivered at MiNido, De Leon--carrying the cocaine--De Los Santos, Valenzuela and the two informants returned to MiNido. Valenzuela and Torres remained outside, and the others entered the bar. Appellants were arrested shortly thereafter. Torres was searched and agents recovered $3,871 in cash.
Torres and De Los Santos challenge their convictions based upon a claim of insufficiency of the evidence, but the claim merits little discussion. The evidence against them, when viewed in the light most favorable to the government, is more than sufficient to sustain the jury verdicts against them.
Torres argues that there was no direct proof of the content of his conversations with Valenzuela and the destination of their trip together, and stresses that he was never seen with the cocaine. He argues that his mere presence on the street and his association with Valenzuela, a well known personality in the neighborhood, were insufficient to establish that he was involved in the drug conspiracy. He discounts De Leon's statement indicating that Torres was the prospective supplier, arguing that De Leon might simply have pointed to someone in the crowd, who just happened to be Torres, in order to keep Leader interested in the drug deal.
We find these arguments wholly unpersuasive. Torres was not merely present on the scene. Among other things, he was identified by name by De Leon as the supplier of the cocaine; he showed up at the time that the supplier was expected; he left shortly thereafter with Valenzuela in Torres's car; he returned at the same time that Valenzuela returned carrying the cocaine; he gestured to De Leon to follow Valenzuela to Jon's Car Bar; and he watched, arguably as an interested participant and look-out, while the other appellants followed Valenzuela to Jon's Car Bar. A reasonable juror could certainly have concluded that Torres was an active participant in the drug conspiracy.
De Los Santos also argues that his mere presence at the scene of the crime is insufficient to make him liable as a co-conspirator. Leader testified, however, that De Los Santos discussed the cocaine sale with him the day before and indicated that he could put Leader in touch with a source of two kilograms of cocaine. The next day, De Los Santos and De Leon met with the informants at MiNido, and although De Leon, and later Valenzuela, apparently took the lead in negotiating the drug sale, De Los Santos was present at each critical stage. The evidence was more than sufficient to sustain the jury's verdict.
At the start of the trial, the government said it would not call Fornier, the second confidential informant, as a witness, stating that it viewed Fornier's testimony as cumulative. The government also stated that it did not believe that Fornier's identity needed to be revealed, but that he could be produced if the court so ordered. The government also indicated that it had a tape recording of a conversation between Fornier and De Leon relating to the cocaine transaction that it would not introduce unless Fornier was called as a defense witness.
After Leader's testimony was completed, the government indicated that it was willing to make Fornier available to defense counsel without a court order if they wished to call him as a witness, but revealed that Fornier did not wish to be interviewed prior to his testimony. At appellants' request, the government produced Fornier's DEA payment records and his arrest record--consisting of a 1984 arrest on counterfeiting charges--and disclosed that prosecution of Fornier was deferred as a result of his cooperation.
The district court held an in camera hearing, with all counsel present, in which Fornier confirmed that he did not wish to speak with defense counsel and that the decision was his own. Appellants then made a general request for a "missing witness" charge against the government, arguing that Fornier was unavailable to the defense as a matter of law due to his unwillingness to discuss his testimony prior to taking the stand. Judge Keenan denied the request, noting that Fornier had an "absolute right" to decline to talk to defense counsel prior to testifying and that Fornier was physically available to testify. The judge indicated, however, that defense counsel were free to argue in summation that an inference could be drawn against the government from its failure to call Fornier as a witness, but that the government would then be permitted to respond that the defense could have called Fornier too.
In summation, both De Leon and Valenzuela suggested that the jury should infer that Fornier would have contradicted the government's case, and De Leon added that Fornier should be viewed as a missing "government witness" and not a missing "defense witness." In rebuttal summation, the government responded principally that defendants could have called Fornier if...
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