U.S. v. Valencia

• Citation: 645 F.2d 1158
• Decision Date: 18 September 1980
• Docket Number: D,Nos. 726,735,s. 726
• Parties: UNITED STATES of America, Appellee, v. Olga VALENCIA and William Suarez Valencia, Defendants-Appellants. ockets 79-1365, 79-1366.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 1158

645 F.2d 1158

UNITED STATES of America, Appellee, v. Olga VALENCIA and William Suarez Valencia, Defendants-Appellants.

Nos. 726, 735, Dockets 79-1365, 79-1366.

United States Court of Appeals, Second Circuit.

Argued Feb. 13, 1980.

Decided Sept. 18, 1980.

F. Louis Caraballo, Brooklyn, N. Y., for defendant-appellant Olga valencia.

David Seth Michaels, The Legal Aid Society, Federal Defender Services Unit, New York City, for defendant-appellant William Suarez Valencia.

Thomas G. Roth, Asst. U. S. Atty., for the Eastern District of New York, Brooklyn, N. Y., Edward R. Korman, U. S. Atty. for the Eastern District of New York, Harvey M. Stone, Asst. U. S. Atty. for the Eastern District of New York, Brooklyn, N. Y., for appellee.

Before OAKES and Van GRAAFEILAND, Circuit Judges, and TENNEY, District Judge. ^*

OAKES, Circuit Judge:

This is an appeal from judgments of conviction entered in the United States District Court for the Eastern District of New York, Eugene H. Nickerson, Judge, following a jury trial. Appellant William Valencia was acquitted on Count One of the indictment charging him with conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, but convicted on Counts Two and Three charging him with distributing cocaine and possessing cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Appellant Olga Valencia was convicted on all three counts, but at sentencing the Government moved to dismiss Count One as to her. Appellant William Valencia was sentenced to concurrent terms of three years' imprisonment with a special parole of five years. Appellant Olga Valencia was sentenced to a term of imprisonment of three years and six months with a special parole term of ten years.

Appellant William Valencia primarily argues that the trial court erred in improperly withdrawing a major part of his entrapment defense during jury deliberations. Because we agree with that argument, we reverse his conviction and remand for a new trial. Both appellants also claim that the warrantless search of their apartment violated their Fourth Amendment rights and that other portions of the district court's supplemental instructions on entrapment were erroneous. In addition, appellant Olga Valencia argues that the evidence at trial established that she was entrapped as a matter of law and that the court's modified Allen charge ¹ was coercive. We disagree with these arguments and accordingly affirm Olga Valencia's conviction.

I. FACTS

On May 17, 1979, government informant Maria Palacio and undercover detective Jose Guzman, assigned to the New York Drug Enforcement Administration (DEA) Task Force, arrived at the apartment of appellants William and Olga Valencia in Queens, New York. Olga let them into the apartment where William was sitting at the kitchen table. Palacio told the Valencias that Guzman had come to buy cocaine from them. When Guzman asked to examine the cocaine, Olga produced a triple-beam balance scale and two bags containing a white substance. Guzman told her that she need not weigh the cocaine because any discrepancy could be rectified in future purchases. The Valencias assured him that the cocaine was pure. After Guzman performed a test on the cocaine, there was a disagreement about the price. Olga sought to charge him $6,500 for the one-eighth of a kilogram involved, while Guzman countered with $6,300 because he claimed that the cocaine was not pure. According to Guzman's testimony, William interjected that they could not accept $6,300 because their profit margin would be too low. They finally settled on a price of $6,450. Guzman testified that he handed this sum to William and that William then handed it to Olga, stating that she could count it more quickly.

As the money was being counted, according to Guzman, William told Guzman that he "used to be in the business," but had to turn the duties over to Olga because he had been injured in an automobile accident. Before leaving, Guzman expressed interest in making additional purchases. Appellants told him that they would be able to supply as much "weight" as he wanted as long as they received one day's advance notice.

Five days later, Guzman went back to the apartment. There he talked with William and another person who was later identified as Arturo Arboleda. In response to a question from William, Guzman told him that the cocaine that he had purchased from them was not as pure as he had been led to believe. Olga was not home, but William urged Guzman to wait because Olga had some higher quality cocaine to sell him. Guzman left and returned in half an hour, but Olga still had not returned. Guzman then left without making any additional purchases.

Guzman next met with Olga on June 14, 1979, on a Queens street. He sought to buy additional cocaine, but she told him that she did not have any. According to Guzman, she told him that her "connection," Arboleda, had been arrested, but that she was attempting to find a new connection and knew one source of supply from which she could get a kilogram for $68,000. On June 20, the Valencias told Guzman at their apartment that they had found a new connection, but that he had failed to meet them at a prearranged time. When Olga failed to reach the connection after trying again, Guzman left.

The Valencias had advised Guzman that they were planning to move because they feared they were being followed by the police. Thus alerted, the DEA Task Force arrested the Valencias on June 21, 1979. Olga was arrested without a warrant on a street outside the Valencias' apartment. In response to a question from the officers, Olga told them that William was inside the apartment. They asked Olga if they could enter the apartment. She did not respond, but walked toward the apartment. The officers then followed her into the apartment without protest from her. Once inside the apartment, the officers arrested William, also without a warrant. One of the officers, Detective Robert Johnson, drew his gun just before entering, but Olga did not see it. Johnson then handed to Olga and William a card with Miranda warnings in Spanish. The Valencias indicated that they understood the warnings. According to the officers' testimony at a pretrial suppression hearing, which testimony Judge Nickerson found "wholly credible," Johnson asked Olga if the officers could search the apartment and she gave her consent, stating that she had "nothing to hide." Johnson then searched Olga's pocketbook, which was lying on the kitchen table within reach of Olga and William. Pieces of paper with narcotics-related writing were found in the pocketbook. A balance scale, strainer and spoon with traces of cocaine were found in a closet, and a bag containing a cocaine cutting substance, inositol, was found in the bedroom.

Olga's defense at trial was essentially entrapment. William relied on entrapment to some extent, although counsel for William also argued in summation that there was insufficient evidence to link William to the cocaine transactions at all. ²

Maria Palacio, the government informant, was called to testify by William Valencia. She had agreed to cooperate with the DEA because her son had been arrested on a cocaine charge and she was trying to aid his case. Palacio testified that she first spoke to Olga in Elisa's Bar in Queens in May of 1979, when Olga approached her, although she had seen Olga in the bar before that time. According to Palacio, Olga told her that she needed money and Palacio expressed a similar need to Olga. Palacio testified that Olga then told her that she had cocaine to sell, but did not have any customers. They entered into an agreement, according to Palacio, whereby Palacio would find customers for Olga in exchange for a share of the proceeds. Palacio later testified that Olga was the first one to bring up the subject of drugs. Palacio then reported this conversation to the DEA authorities and agreed to introduce an undercover agent to Olga.

Palacio further testified that on the evening of May 16, 1979, the day before the sale to Guzman, she and Olga met a man, whom Olga described as her "connection," on a street corner in Queens. According to Palacio, Olga said the connection had left a sample of the cocaine at the Valencias' apartment. Palacio testified that they then drove to the apartment where they found a tinfoil packet of cocaine which had been left with William. Olga gave it to Palacio, who turned it over to Detective Johnson. Palacio indicated that she never spoke to William directly about cocaine.

Olga then took the stand in her own defense and testified that she had met Palacio at Elisa's Bar after she had begun to work there as a cleaning woman in February of 1979. Olga testified that she complained to Palacio about her need for money as a result of William's auto accident, and that Palacio responded that her son had been involved in selling cocaine and that they could make money by selling cocaine themselves to her son's former customers. Olga claimed that she initially resisted the idea, but that from February to May of 1979 Palacio was continually "pushing" and "coercing" her to enter into the cocaine selling plan. Olga testified that she finally capitulated because of her financial difficulties. Shortly after this, Olga testified, Palacio supplied her with the scale, the spoon, the strainer, and a small amount of cocaine.

It was Olga's testimony that on May 17, 1979, the day the cocaine was sold to Guzman, she received one-eighth of a kilogram of cocaine and the cutting substance at Elisa's Bar from someone she knew only as "Jose." She testified that Jose gave her the cocaine on credit even though they did not know each other well. Olga admitted selling the cocaine to Guzman, and admitted that the narcotics-related writing found in her pocketbook was hers. But she denied that William had any involvement with the sale of cocaine and disputed testimony by Detective...