United States v. Arroyo

• Decision Date: 22 March 1974
• Docket Number: 499,No. 498,73-2339,73-2511 and 73-2311.,Dockets 73-2193,524 and 673,73-2332,503,498
• Parties: UNITED STATES of America, Appellee, v. Eduardo ARROYO et al., Appellants.
• Court: U.S. Court of Appeals — Second Circuit

494 F.2d 1316 (1974)

UNITED STATES of America, Appellee, v. Eduardo ARROYO et al., Appellants.

Nos. 498, 499, 503, 524 and 673, Dockets 73-2193, 73-2332, 73-2339, 73-2511 and 73-2311.

United States Court of Appeals, Second Circuit.

Argued January 9, 1974.

Decided March 22, 1974.

Franklin B. Velie, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S. D. N. Y. and John J. Kenney and S. Andrew Schaffer, Asst. U. S. Attys. of counsel), for appellee.

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

Jay Goldberg, New York City, for appellant Perez.

Alvin K. Hellerstein, New York City (Paul S. Levy, Stroock & Stroock & Lavan, New York City, of counsel), for appellant Sanchez.

Stanley M. Meyer, Brooklyn, N. Y. (Preminger, Meyer & Light, Brooklyn, N. Y., of counsel), for appellant, Gonzalez.

Julio R. Ferrer, pro se.

Before DANAHER,^* LUMBARD and TIMBERS, Circuit Judges.

DANAHER, Senior Circuit Judge:

The massive conspiracy here involved all five appellants,¹ convicted after a jury trial, following the importation, possession and distribution of heroin, and their joining in an effort to bring about the escape of a federal prisoner. The jury additionally found that Arroyo, Gonzalez and Perez were guilty of possessing heroin with the intent to distribute. Perhaps most important of the various claims of error is that advanced by Arroyo and Gonzalez that a Government informant,² after the indictment had been returned, improperly had attended meetings of these two accused and their lawyers, thus violating their Sixth Amendment right to a confidential attorney-client relationship. This aspect of the case will hereinafter be discussed, but otherwise we have no difficulty in concluding that the appellants were in no way deprived of a fair trial. The judgments of conviction are affirmed.

I.

We need only generalize to provide the background for the prosecution and the trial, for it is clear enough that each participant must have known that he was involved in one of the largest³ heroin importation conspiracies of recent years. We view the facts, as we should, most favorably to the position of the Government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), United States v. McCarthy, 473 F.2d 300, 302 (2 Cir.1972), United States v. Tropiano, 418 F.2d 1069, 1074-1075 (2 Cir.1969), cert. denied 397 U.S. 1021, 90 S.Ct. 1262, 25 L.Ed.2d 530 (1970). One Alfredo Mazza, a salesman for European heroin sources, arranged with one Alfredo Aviles, agent for American buyers, for the importation in July, 1971, of some 80 kilograms of uncut, European heroin, concealed in various parts of a Volvo automobile. The car was dismantled in a Manhattan garage pursuant to arrangements by the appellant Perez. Some 64 kilograms of heroin, the subject of the substantive count, were delivered from the garage to the Aviles apartment. There, appellants Arroyo and Gonzalez met with Aviles. Gonzalez tested a portion of the heroin, indeed he carried away a sample for further testing, and thereafter Gonzalez and Arroyo took delivery of some 49 kilograms of heroin and made payment of more than a half million dollars.

Next followed in January, 1972, a second shipment of some 176 kilograms of heroin which, however, was seized in Florida — and so were Mazza, Aviles and Arroyo. Mazza was unable to post bail but Aviles did so for himself and then undertook arrangements for a further consignment of heroin expecting to use a portion of the proceeds of its sale in posting bail for Mazza. While cooperating with Alfredo Mazza's brother Carlos and with Mazza's lawyer, the appellant Ferrer and their European heroin supplier, one Condemine, Aviles found himself named in another narcotics indictment. Aviles presently agreed to introduce an undercover agent,⁴ Sergeant Valentine, into the continuing conspiracy. With the plan to free the jailed Mazza still having high priority, Aviles met with Arroyo and one Fragliossi, who agreed to purchase heroin upon the arrival of the expected shipment.

Meanwhile, appellant Ferrer asked for and received a flexible saw to be smuggled to and used by Alfredo Mazza to facilitate his escape if the conspirators should fail to secure his release. At trial, appellant Ferrer, the only one of the accused to testify, admitted receiving the saw but testified that he had never delivered it to the federal prisoner.

In August, 1972 Aviles talked with Gonzalez who expressed interest in obtaining heroin from the expected shipment, and also with the appellant Sanchez. Thereafter, during the course of a taped conversation with Sergeant Valentine alias Guillermo,⁵ Sanchez was assured that the shipment⁶ of heroin expected from overseas sources was of high purity, and Sanchez agreed to take 30 kilograms of that heroin at a price of $18,000 per kilogram.

II.

The foregoing outline of the Government's case against those on trial is deemed adequate to depict the far-reaching and on-going nature of the crimes charged and of the participation of each of the accused in effectuating its objects. Repeatedly Judge Bauman most carefully instructed the jury that evidence as to each of the charges was to be considered separately in the determination of the guilt or innocence of each participant. He required the jury to indicate by special verdict the degree of involvement, if any, by each of the accused and of the association by each with the objects⁷ of the conspiracy if the jury were to find one to exist. The understanding and the discernment of the jury are entirely apparent from the verdicts as rendered.⁸

It has been asserted, not by Arroyo, but by Perez, Ferrer, Gonzalez and Sanchez that the evidence against each of them was not sufficient to justify submitting their cases to the jury. We reject out of hand any such claim. Compare the facts as narrated in United States v. Barrera, 486 F.2d 333 (2 Cir. 1973). It has become clear beyond peradventure that

we are not dealing with minor league addicted street pushers but with well-financed brazen professionals engaged in a large-scale criminal undertaking. . . . United States v. Bynum, 485 F.2d 490, 499 (2 Cir. 1973).

It has been urged upon us that there was error in the refusal of the trial judge to instruct the jury as to the possibility of multiple conspiracies. Such a claim has received consideration in this court before now, and it has often been recognized especially where heroin is involved, that it would be unrealistic to assume that major producers, importers, wholesalers or retailers do not know that their actions are inextricably linked to a large on-going plan or conspiracy. Only one conspiracy was alleged and proved. United States v. Barrera, supra; United States v. Bynum, supra, 485 F.2d at 495-496; United States v. Cirillo, 468 F.2d 1233, 1238-1240 (2 Cir. 1972), cert. denied, 410 U. S. 989, 93 S.Ct. 1501, 36 L.Ed.2d 188 (1973); United States v. Calabro, 449 F.2d 885, 891-893 (2 Cir. 1971), cert. denied, 405 U.S. 928, 92 S.Ct. 978, 30 L. Ed.2d 801 (1972); United States v. Nuccio, 373 F.2d 168, 174 n. 4 (2 Cir.) cert. denied, 387 U.S. 906, 87 S.Ct. 1688, 18 L.Ed.2d 623, rehearing denied, 389 U.S. 889, 88 S.Ct. 16, 19 L.Ed.2d 199 (1967). There was no error on this aspect.

We reject, without enumeration, assorted claims of error as to various other rulings running through some two weeks of a well-conducted trial. See, generally, our treatment in United States v. Barrera, supra, United States v. Bynum, supra, United States v. Calabro, supra, and United States v. Agueci, 310 F.2d 817 (2 Cir. 1962), cert. denied, 372 U.S. 959, 83 S.Ct. 1016, 10 L.Ed.2d 12 (1963).

III.

Before the severance from the case of co-conspirator Rodriguez, his counsel in the course of preparation had interviewed Aviles' wife.⁹ The conversation was taped. What she then said Aviles had earlier told her became in part the subject of cross-examination of Aviles by respective counsel for Arroyo and Gonzalez. With the trial about to terminate, whether the woman should be brought from Puerto Rico came under discussion.

Arroyo has briefed extensively a claim that what the woman had told Rodriguez's counsel should have been received to demonstrate Aviles' bias and interest. Counsel argued that

the jury would have regarded Aviles in a wholly different light if presented with testimony that he actually engaged in lawless and illegal conduct directly relating to the case being tried in order to insure favorable treatment by the government. (Brief for Arroyo).

We now explore the pertinent background.

After Aviles in 1972 undertook cooperation with Sergeant Valentine, he dealt with various of the parties on trial and with others of the originally indicted defendants. Among the latter were Aviles himself and Ralph Torres and Benjamin Rodriguez as to whom on April 25, 1973, Judge Bauman granted a motion to sever.

Pressed to disclose what promises had been made by the Government in return for his collaboration, Aviles testified there had been no assurances of leniency or of special treatment, and that all he hoped for was that cases outstanding against him would be brought on all at one time and before the same judge. Arroyo's counsel on a different tack presently asked if Aviles in January, 1973 was locked up in Puerto Rico for beating his wife and received a negative reply. Arroyo's counsel put the question "Would you frame someone?", with Aviles answering "Why should I do that?" Counsel replied "To get yourself out from under. That's why."

Counsel for Gonzalez took up cross-examination, particularly with reference to the interview with Aviles' wife taped by counsel for Rodriguez. It was thereupon developed that Aviles knew Torres, Rodriguez and one Alberto Esqui Jarosso. Allowing great latitude, Judge Bauman permitted counsel for Gonzalez to have access to the grand jury testimony of Aviles' wife when the Government investigated possible...