U.S. v. Velez, 1229
| Citation | 652 F.2d 258 |
| Decision Date | 18 June 1981 |
| Docket Number | No. 1229,D,1229 |
| Parties | UNITED STATES of America, Appellee, v. Lucy VELEZ, Appellant. ocket 80-1429. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
John Latella, Asst. U. S. Atty., for the Eastern District of New York, Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., Brooklyn, N. Y., of counsel), for appellee.
Jesse Berman, New York City, for appellant.
Before KAUFMAN and NEWMAN, Circuit Judges, and GAGLIARDI, District Judge. *
Although the jury ordinarily finds the facts and applies the law, the trial judge, in delivering his charge, bears the weighty responsibility of untangling the skein of legal principles. Thus, we must be sensitive to prejudicial errors in the court's instructions, lest the jury's verdict become the product of caprice rather than a true application of law to fact. In this case, we hold that the district judge's failure in his supplemental instructions to recharge the jury on willful membership in the conspiracy as an element of that offense requires reversal of appellant's conviction.
The testimony at trial revealed that on June 18, 1980, Officer Thomas Iacullo of the United States Customs Patrol observed appellant's co-defendant, Iris Rivera, as she collected her luggage at New York's Kennedy International Airport after arriving from Buenos Aires, Argentina. Rivera appeared nervous and confused and was wearing a flared skirt and jacket of the type often worn by couriers attempting to smuggle narcotics into the United States. After completing the first stage of the customs inspection, Rivera consented to a "pat down" search conducted by Customs Patrol Officer Maria Sullivan. Officer Sullivan discovered that Rivera's skirt and girdle had concealed two plastic packages containing about a kilogram of cocaine.
Rivera received her Miranda rights and agreed to speak at some length to agents of the Drug Enforcement Agency ("DEA") and to cooperate in their investigation of the smuggling operation. She related to them that she had gone to Argentina to retrieve cocaine at the behest of two Hispanic women, Wanda Medero and Lucy Velez. At DEA Agent James Castillo's request, Rivera placed two recorded telephone calls to Medero and Velez, who were at Medero's Bronx apartment, asking them to meet her at the airport. Velez refused, however, and instructed Rivera to join them at the apartment.
Rivera agreed to deliver to the apartment a substitute package prepared by the DEA and containing lactose and a small amount of cocaine. Castillo, posing as a taxicab driver, drove her to the apartment. Velez and Medero met Rivera and accompanied her into the bedroom, where the package was placed under the mattress of the bed. Shortly thereafter, the DEA agents arrived and arrested the three women. After being advised of her Miranda rights, Velez agreed to talk to the agents and advised them that she did not know anything about the cocaine or its delivery. She maintained that she had just been visiting her friend Medero. Velez later agreed to listen to the two tape-recorded telephone conversations and identified her own voice and those of Rivera and Medero.
The following day, a grand jury returned a three-count indictment. The first count charged Velez, Rivera, and Medero with conspiracy to import and to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 846 and 963. The remaining two counts charged substantive offenses, alleging that the defendants had knowingly imported the drug, in violation of 21 U.S.C. § 952(a), and that they had possessed cocaine with intent to distribute it, in contravention of 21 U.S.C. § 841(a)(1). Defendants moved to suppress the statements they had made to the DEA agents and the two packages of cocaine seized from Rivera at the airport. Judge Bramwell denied these motions after a hearing. Rivera and Medero then pleaded guilty to the conspiracy count, and the other two counts were dismissed as to them. 1
Velez elected to go to trial, which was held in September, 1980. Rivera, who testified as the Government's chief witness, asserted that Velez had induced her to smuggle cocaine into the United States. On cross-examination, defense counsel sought to undermine Rivera's credibility by showing that she could not remember the name of her attorney or the count to which she had pleaded guilty. He drew from her an admission that, despite her initial denial, a woman named Snoopy may well have been involved in the importation scheme. Counsel also developed an inconsistency between her post-arrest statement to the DEA agents, in which she said Medero had supplied her plane ticket and expense money, and her testimony at trial, in which she said the ticket and money had been provided by Velez.
The Government's case was presented in two days. Although Velez produced no witnesses, she asked the court to charge the jury on her theory of the case: that Rivera was not truthful or reliable, and that she was motivated by her plea arrangement with the Government and by her desire to protect Snoopy and her niece. 2 Velez also requested an instruction as to her claim that she acted as friend and not as co-conspirator in directing Rivera to Medero's apartment in the Bronx. The judge denied these requests.
On the second day of deliberations, the jury asked the court for supplemental instructions concerning "clarification" of all the counts. 3 Judge Bramwell chose to respond to this inquiry by briefly recapitulating the essential elements of each offense. However, although his original instructions stated that willful membership in the conspiracy is an essential element of that offense, in his supplemental charge he failed to repeat this important instruction. Defense counsel immediately objected to this omission and requested a charge on willful membership. The judge refused. 4
The jury convicted appellant of the conspiracy charge and acquitted her of the substantive counts. She was sentenced to imprisonment for a period of six years.
We turn to an examination of the legal issues raised on this appeal. Appellant's principal argument 5 is that the trial judge erred in refusing to repeat the charge on willful membership in a conspiracy when he responded to the jury's request for supplemental instructions. Willful membership was a crucial element of the Government's case, see United States v. Provenzano, 615 F.2d 37, 45 (2d Cir. 1980), and the trial court's omission, coming as it did after one and a half days of jury deliberations, was bound to have a substantial impact on the jurors.
It is true that the legal sufficiency of the supplemental charge must be assessed in the context of the instructions as a whole, United States v. Park, 421 U.S. 658, 674-75, 95 S.Ct. 1903, 1912-1913, 44 L.Ed.2d 489 (1975); United States v. Valencia, 645 F.2d 1158 at 1166 (2d Cir., 1980, as amended, March 5, 1981); United States v. Sears, 544 F.2d 585, 588 (2d Cir. 1976). The omission of an original instruction in the supplemental charge is usually not erroneous where the trial judge explicitly cautions the jury that the supplemental instruction is an adjunct to, and not a substitute for, the original charge. See Valencia, supra, at 1166. Moreover, a supplemental charge is not defective where it responds adequately to the jury's request for clarification. United States v. Viserto, 596 F.2d 531, 539 (2d Cir.), cert. denied, 444 U.S. 841, 100 S.Ct. 80, 62 L.Ed.2d 52 (1979). Finally, even if some error can be found in the supplemental charge, it will not ordinarily require reversal where there is no evidence that the defendant was prejudiced by it, United States v. Gleason, 616 F.2d 2, 21 (2d Cir. 1979), cert. denied, 444 U.S. 1082, 100 S.Ct. 1037, 62 L.Ed.2d 767 (1980), or where a subsequent supplemental instruction cures the defect, Valencia, supra, at 1166.
Although reluctant to upset a conviction because of an error in the supplemental charge, we are constrained to reverse here because the trial court's failure to recharge the jury on the willful membership element was both erroneous and highly prejudicial. Velez's only defense was that she was not a knowing participant in the smuggling scheme. Defense counsel argued that she acted out of...
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