U.S. v. Vargas

• Citation: 621 F.2d 54
• Decision Date: 02 May 1980
• Docket Number: No. 822,D,822
• Parties: UNITED STATES of America, Appellee, v. Luis VARGAS, Defendant-Appellant. ocket 79-1373.
• Court: U.S. Court of Appeals — Second Circuit

Page 54

621 F.2d 54

UNITED STATES of America, Appellee, v. Luis VARGAS, Defendant-Appellant.

No. 822, Docket 79-1373.

United States Court of Appeals, Second Circuit.

Argued March 17, 1980.

Decided May 2, 1980.

Richard F. Guay, Asst. U. S. Atty., Eastern District of New York, Brooklyn, N. Y. (Edward R. Korman, U. S. Atty. for the Eastern District of New York, Mary McGowan Davis, Michael H. Soroka, Asst. U. S. Attys., Brooklyn, N. Y., of counsel), for appellee.

Barry Agulnick, New York City, for defendant-appellant.

Before MULLIGAN and OAKES, Circuit Judges, and POLLACK ^*, District Judge.

MULLIGAN, Circuit Judge:

Luis Vargas appeals from a judgment of the United States District Court for the Eastern District of New York which convicted him after a jury trial before Hon. Charles P. Sifton of (1) a conspiracy to import into the United States and to possess with intent to distribute quantities of cocaine in violation of 21 U.S.C. §§ 952(a), 960 and 841(a)(1), and (2) of importing approximately 30 lbs. of cocaine from Lima, Peru into the United States in violation of 21 U.S.C. §§ 952(a), 960(a)(1) and 18 U.S.C. § 2. Judgment was entered on September 24, 1979. Vargas was sentenced to concurrent eight year terms of imprisonment on the conspiracy and importation counts as well as concurrent ten year terms of special parole to be served thereafter. He is presently serving his sentence. We find the issues raised on this appeal to be without merit and affirm the judgment of conviction.

I

The evidence at the trial established that on March 15, 1979 four pieces of furniture were shipped under a fraudulent air waybill from Lima, Peru and on March 24 arrived at the Lan Chile Airline Cargo Building, at John F. Kennedy (JFK) Airport, Jamaica, New York. After the furniture had been shipped from Peru, Vargas and three of his co-defendants left Lima, met in Panama and then came to New York where they stayed together first at the Hilton Hotel and then at the Seville Hotel in Manhattan. ¹ Upon arriving in New York Vargas immediately contacted Ms. Anna Ortega, his cousin, who lived in upper Manhattan and was the named consignee of the furniture shipment. Ms. Ortega's son Carlos, who was fluent in English and Spanish, was enlisted to locate the furniture. Carlos made daily calls to Lan Chile Airlines and finally traced the furniture to JFK Airport.

During a routine customs examination, however, it was discovered that two pieces of the furniture had compartments in which were secreted some 27 lbs. of pure cocaine. It was repacked and the furniture was recrated and placed in a Purolator security facility at the airport. When truckers arrived to pick up the furniture on April 2, two agents of the Drug Enforcement Agency (DEA) exchanged places with them and proceeded to move the furniture to the Ortega apartment, where they were introduced to Vargas by Ms. Ortega's daughter, who was bilingual. She described Vargas as the intended recipient of the furniture. Vargas paid a DEA agent the shipping charges with two one hundred dollar bills and signed a receipt. The agents then proceeded to unload and uncrate the furniture and deliver it to the apartment. One agent noticed that in the apartment were three other pieces of furniture which were strikingly similar to the pieces being delivered. Vargas, whose cover story was that he was a furniture salesman, stated to the agent that he had shipped these pieces to the Ortegas the previous November but had not yet been able to sell them.

In the course of the moving operation one of the agents reported to a surveillance agent stationed outside the building that furniture containing cocaine had been delivered. This information was relayed to another agent who applied for and received a search warrant from a United States Magistrate in the Southern District of New York. Actually only one of the pieces containing cocaine had been delivered to the apartment at the time the warrant was issued, but within a half hour thereafter the moving operation had been completed.

The agents on the scene were by that time advised that the warrant had been issued. There were four young adults as well as the two Ortega children in the apartment in addition to Vargas. To minimize the danger to these other occupants, the agents knocked on the door and used the ruse that an additional signature was needed on the delivery papers. When the door was opened, they announced their true identities as well as the purpose of the search before entering. They observed Vargas poised over a mahogany bar that they had just delivered removing packing material which concealed the cocaine. Vargas was arrested and given his Miranda warnings in Spanish. The agents seized not only the furniture they had delivered but the three other pieces that Vargas had admitted importing the previous November. One was found to contain traces of cocaine.

Vargas' motion to suppress the evidence seized in the Ortega apartment on April 2 was denied in a memorandum decision and order by Judge Sifton on June 29, 1979. On this appeal Vargas argues that the search warrant issued by the Magistrate was insufficiently precise. It provided for the seizure of "a quantity of cocaine, its containers and documentary evidence relating to the smuggling of said cocaine from Lima, Peru to the United States" on the premises of Apartment 6A, located at 854 W. 180th Street, New York City, New York. We agree with the court below that the description was sufficiently specific to permit the rational exercise of judgment in selecting what items to seize. Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927). The warrant did not authorize such a broad "roving commission" as to be constitutionally offensive. United States v. Scharfman, 448 F.2d 1352, 1354 (2d Cir. 1971), cert. denied, 405 U.S....