United States v. Barrera

• Decision Date: 09 October 1973
• Docket Number: 73-1303 and 73-1343.,No. 960-963,73-1293,Dockets 73-1227,960-963
• Citation: 486 F.2d 333
• Parties: UNITED STATES of America, Appellee, v. Enrique BARRERA et al., Appellants.
• Court: U.S. Court of Appeals — Second Circuit

486 F.2d 333 (1973)

UNITED STATES of America, Appellee, v. Enrique BARRERA et al., Appellants.

Nos. 960-963, Dockets 73-1227, 73-1293, 73-1303 and 73-1343.

United States Court of Appeals, Second Circuit.

Argued June 8, 1973.

Decided October 9, 1973.

Walter J. Higgins, Jr., New York City (Arthur J. Viviani, Jeffrey Harris, John W. Nields, Jr., Asst. U. S. Attys., Whitney North Seymour, Jr., U. S. Atty., on the brief), for appellee.

Paul A. Goldberger, New York City (Goldberger, Asness, Feldman & Breitbart, New York City, on the brief), for appellant Barrera.

Gilbert S. Rosenthal and Joel A. Brenner, New York City, for appellant Bornsztejn.

Jay Goldberg, New York City, for appellant Enriquez.

Gretchen White Oberman, New York City, for appellant Pinto.

John L. Pollok, New York City (Lenefsky, Gallina, Mass, Berne & Hoffman, New York City, on the brief), for appellant DeLuca.

Before HAYS, MANSFIELD and MULLIGAN, Circuit Judges.

HAYS, Circuit Judge:

These are appeals from judgments of conviction entered in the United States District Court for the Southern District of New York after a jury trial. The five appellants were each convicted of conspiracy to import, possess with the intent to distribute and distribute approximately one-eighth of a ton of heroin, and of the substantive offense of possession with intent to distribute approximately one and one-half kilograms of heroin, in violation of 21 U.S.C. §§ 812, 841, 846 and 963. Appellants Barrera and Bornsztejn were each sentenced to consecutive terms of imprisonment of 15 years on the conspiracy count and 10 years on the substantive count, fines of $50,000 and special parole terms of 3 years. Enriquez was sentenced to imprisonment for 6 years on the conspiracy count and 6 years on the substantive count, the terms to run consecutively, as well as a special parole term of 3 years, while Pinto was sentenced to consecutive terms of 15 years for the conspiracy count and 10 years on the substantive count plus a special parole term of 3 years.

Appellant DeLuca made a motion before trial under 18 U.S.C. § 4244 to have himself declared mentally incompetent to stand trial, which motion was denied (as were motions to suppress certain evidence). After standing trial and having been found guilty, DeLuca was provisionally sentenced under the provisions of 18 U.S.C. § 4208(b) and was committed to the Bureau of Prisons for a psychiatric study. He has not yet been resentenced.

We affirm the convictions of all the appellants.

I. The Factual Background

This case involves an international conspiracy to import heroin into the United States from Europe—a conspiracy which government agents followed almost from its inception in Europe to its consummation on the streets of New York City. Not only was the European portion of the conspiracy known to the United States Bureau of Narcotics and Dangerous Drugs as well as to both the French and Belgian police authorities, but the individual who had been recruited by the European drug shippers to carry the drugs to New York was—unfortunately for the plotters—a government undercover agent.

Under the plan the European shippers were to fill three military footlockers with 120 kilos of pure heroin. The courier, who had military connections, was to transport the footlockers by military plane to Washington, D. C. where he was to rent a car of a certain description, put the footlockers inside the car and drive it to New York City. The plan called for the courier to abandon the car early on the morning of May 16, 1972 in the vicinity of Bloomingdale's department store on the east side of Manhattan where the buyers were to pick up the car. The payment for the narcotics was to be wired by a co-conspirator from his bank account in New York to an account in Switzerland. The evidence established that appellants Barrera, Enriquez and DeLuca were the buyers; that appellant Bornsztejn was to wire the money from his New York account to one he held in Switzerland; and that appellant Pinto was to oversee the transfer in New York as a representative of the European shippers.

The undercover agent left Belgium for Washington, D. C. on May 14, 1972 ostensibly acting as courier for the plotters. Before his departure he emptied the three footlockers which had been filled with pure heroin and left all but three small bags of the drugs with Belgian and French police authorities in Brussels. Upon arriving in Washington, he packed one of the three remaining bags into each of the three footlockers which were otherwise filled with packages of non-narcotic substances resembling the heroin the courier was supposed to be carrying. The courier then rented a car of the exact description that the European shippers had requested, placed the footlockers in the car and set out for New York City.

What followed on the morning of May 16 in the vicinity of Bloomingdale's was surveilled by numerous government agents who were on the scene. It was also recorded on film in movies and still photographs. Agents of the Bureau of Narcotics and Dangerous Drugs had been alerted to the location of the rendezvous spot by the undercover agent. At 6:30 A.M. appellants Bornsztejn and Pinto appeared in the neighborhood of Bloomingdale's department store and proceeded to walk about for a half hour without apparent direction but never leaving a narrowly circumscribed area, and conversing continuously with each other. The surveilling agents who were at first unaware of their involvement in the transaction soon noticed the intense interest Pinto and Bornsztejn showed in the area where the agent-courier had been instructed to leave the heroin laden car.

During this same period appellants Barrera and Enriquez arrived in the area in the latter's car and parked on a side street in the vicinity of Bloomingdale's. Barrera left the car and proceeded to walk toward the store while Enriquez remained behind in the car.

At approximately 7 A.M., Bornsztejn and Pinto separated. At seven o'clock the agent arrived in the car, parked it in front of the store, hid the keys under the dashboard, left the car and entered a subway, as he had been directed to do by the European shippers of the heroin. Pinto spotted the car first and pointed it out to Bornsztejn who then left Pinto and approached Barrera, with whom he shook hands. Bornsztejn and Barrera walked toward the car and upon reaching it Bornsztejn turned around and walked back in the direction from which he had come while Barrera entered the car, took the keys from their hidden location and drove off.

Barrera drove the car with the heroin in it up the side street in which Enriquez was parked, made a hand motion to him, and then continued driving. Enriquez followed him. After reaching what apparently was a predetermined spot, a spot which Barrera could have reached without driving on the side street on which Enriquez had been parked, the two cars stopped and parked. Enriquez and Barrera went into a nearby coffee shop where they were joined by appellant DeLuca who was handed something by Barrera. DeLuca then left the coffee shop and drove off in the car containing the drugs. Shortly thereafter, Barrera and Enriquez also left the coffee shop and drove around the east side of New York until they were arrested at 8:15 A.M.

Meanwhile, Pinto and Bornsztejn left the area of Bloomingdale's and drove first to the hotel where Bornsztejn was staying and then to the hotel where Pinto was staying. They then returned to the area where the transfer had taken place, circled it for about 15 minutes and finally parked their car in front of the same coffee shop where Barrera, Enriquez and DeLuca had met. They got out of their car and walked around for awhile, then reentered their car and drove about apparently aimlessly, until they too were arrested at about 9 A.M.

In the meantime appellant DeLuca drove the car containing the footlockers from Manhattan over a bridge spanning the East River to a garage in the borough of Queens. On the way to the garage, DeLuca stopped his car and pulled over to the side of the road to allow traffic behind him (including two surveilling cars) to pass. He was arrested at about 8:15 A.M. while in the process of unloading footlockers.

Several post-arrest statements were taken from the various appellants who attempted to explain their unusual behaviour on that May morning. None of the explanations are credible when considered in light of the uncontradicted evidence of the actions of the appellants. Indeed, the statement by Enriquez—the appellant whose case might be considered the closest regarding sufficiency of the evidence concerning his knowledge of the ultimate goal of the conspiracy— was most incriminating. On the afternoon that he was arrested, Enriquez told an Assistant United States Attorney that he had driven to New York City that morning leaving his home at 6:20 A.M. He said that he had parked his car in a garage, had breakfast with Barrera and then had gone back to the garage when he had left his car and retrieved it at 8:15 A.M. When he was asked about his actions between 6:20 and 8:15 he said, "I know what I did and I will accept the consequences but I don't want to get anybody else in trouble." He also denied knowing appellant DeLuca (although the two were seen with Barrera in the coffee shop) and he stated that although he knew "something was up" from talking with Barrera, he knew nothing about the heroin and "if the guy who owns the stuff, Barrera, tells the truth I can get out of this case."

Evidence discovered after the arrest of the appellants pointed to the closeknit nature of the conspiracy. Barrera's business telephone number was found in Bornsztejn's possession at the time of the latter's arrest as was the latter's passport showing that he had entered the country on May 4, 1972. On April 16, 1972, Bornsztejn opened an account at a New York bank which was used to transfer money to another account in his name in a...