United States v. Estepa
Decision Date | 29 December 1972 |
Docket Number | 72-1931.,Dockets 72-1653,377,No. 157,157 |
Citation | 471 F.2d 1132 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Charles ESTEPA and Francis Vasquez, Defendants-Appellants. |
Court | U.S. Court of Appeals — Second Circuit |
Robert T. Hartmann, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., John W. Nields, Jr., and Walter M. Phillips, Asst. U. S. Attys. of counsel), for appellee.
Harold Baer, Jr., New York City (Guggenheimer & Untermyer, and Peter F. Bonoff, New York City, of counsel), for appellant Estepa.
Lawrence Stern, New York City (Edward S. Panzer, New York City, of counsel), for appellant Vasquez.
Before FRIENDLY, Chief Judge, and WATERMAN and HAYS, Circuit Judges.
Charles Estepa and Francis Vasquez appeal from their conviction, after a bench trial before Judge Brieant in the District Court for the Southern District of New York, on four counts of an indictment charging them, along with Jaime Vasquez, Rafael Perez and Jose Luis Dones, with distributing heroin, possessing it with an intent to distribute, and conspiring to do so, in violation of 21 U.S.C. §§ 812, 841 and 846. Although Estepa challenges the sufficiency of the evidence and Vasquez raises some other points, it is unnecessary to consider these since we hold dismissal of the indictment to be required because of the nature of the presentation to the grand jury.
For purposes of this opinion we can adopt the statement of facts in the Government's brief on Vasquez' appeal:1
It is plain from this recitation that, except for the individuals named in the indictment, the person, and the only person, who was in a position to inform the grand jury of just what occurred up to the point of the arrest of Dones and Jaime Vasquez was Patrolman Guzman. Examination of the trial record shows that the persons (other than the defendants) in the best position to inform the grand jury of what occurred thereafter were Narcotics Agent Finnerty and New York City Policeman Walpole, and, with respect to Estepa's post-arrest statement, New York City Policeman Miller.
None of these men was called. The sole witness before the grand jury was New York City Policeman Twohill, whose observations of the appellants were both limited and remote. When we inquired at argument why Patrolman Guzman was not called to testify before the grand jury, we were told he was in the field doing other work that day; when we asked what reason prevented postponement of the presentation for a day or two, we were told there was none.
Despite Policeman Twohill's extremely limited personal knowledge, he spoke to the grand jury at length and in detail. He began with an incident on September 13, 1971, a month before the substantive crime with which the two appellants were charged.2 He testified that Perez passed a package, later analyzed by the laboratory of the Bureau of Narcotics and Dangerous Drugs, to Jaime Vasquez who then passed it on to Patrolman Guzman, who paid $150. On this occasion the Assistant United States Attorney interjected "you didn't observe the actual pass, but you did observe the meeting, is that correct?", to which Twohill responded "I did." Twohill then testified that, on September 27, Jaime Vasquez passed a package, later determined to contain heroin, to Patrolman Guzman who paid $120.3 This time the Assistant did nothing to alert the grand jury to any limitations on Twohill's knowledge. Moving on to the transaction on October 14, 1971, which constituted Counts IV, V and VI against these defendants (and also the principal — in Estepa's case the sole — basis for the conspiracy count), Twohill testified that Guzman requested Jaime Vasquez to furnish a one-eighth kilo of heroin and some cocaine and that Jaime Vasquez told Guzman to drive to Dones' home on Longfellow Avenue. Even if we assume that Twohill had witnessed this meeting from afar, there was nothing in his testimony or in the questions of the Assistant to inform the grand jury that he had not and could not have heard any such request or answer. He recounted to the grand jury what took place at Dones' house and a conversation between Frank Vasquez and Guzman in connection with the sale of a one-eighth kilo of heroin for $3100, a conversation between Dones and Guzman for the sale of a half kilo of cocaine for $7,000, and an instruction by Frank Vasquez to Guzman to meet near Jaime Vasquez' home. Here again, even if we assume, perhaps overgenerously so far as the record goes,4 that Twohill saw something, he clearly heard nothing, but the grand jurors were not told this. There followed testimony about Guzman's having driven Jaime Vasquez back to his home, returning there, and showing him a roll of money, which Twohill might well have observed. He next described the meeting of the Vasquez brothers, Dones and Guzman. Here he failed to follow the script and said that Guzman, rather than Jaime Vasquez, directed that they follow Dones' car. The error was natural since, as we are aware but the grand jury was not, he had no personal knowledge whatever. Twohill then testified that Vasquez and Guzman, followed by Dones and his passengers, proceeded to a location on Longwood Avenue in the Bronx where Vasquez spoke with the individuals in Dones' car. Next came testimony of the arrival at and departure from the social club, which Twohill had in fact observed. He then proceeded to testify to the arrival of Dones, Frank Vasquez and Estepa in the blue Ford and to Guzman's being told to wait for half an hour for the defendants' return with the narcotics; nothing informed the grand jury that Twohill had not heard anything of the sort. Finally, and most egregiously, after relating the return of the blue...
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