United States v. Guerra

• Decision Date: 05 June 1964
• Docket Number: Docket 27792.,No. 440,440
• Citation: 334 F.2d 138
• Parties: UNITED STATES of America, Appellee, v. Pablo GUERRA and Manuel Rivera, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

334 F.2d 138 (1964)

UNITED STATES of America, Appellee, v. Pablo GUERRA and Manuel Rivera, Appellants.

No. 440, Docket 27792.

United States Court of Appeals Second Circuit.

Argued April 23, 1964.

Decided June 5, 1964.

John W. Mills, Asst. U. S. Atty. for Southern District of New York, New York City (Robert M. Morgenthau, U. S. Atty., and Neal J. Hurwitz, Asst. U. S. Atty., of counsel), for appellee.

Jerome J. Londin, New York City, for appellant Guerra.

Leon B. Polsky, New York City (Anthony F. Marra, New York City, on the brief), for appellant Rivera.

Before WATERMAN, KAUFMAN and MARSHALL, Circuit Judges.

KAUFMAN, Circuit Judge:

After a trial to the Court without a jury, appellants Pablo Guerra and Manuel Rivera were convicted of unlawfully selling narcotics, and of participating in a conspiracy to do so; in addition, Guerra was convicted of assaulting a narcotics agent with a deadly weapon. On appeal, no challenge is made to the sufficiency of the evidence supporting the convictions, but appellants raise several arguments relating to the fairness of the trial, and the propriety of several of the Court's rulings therein.

Since the sufficiency of the evidence is conceded, the government's proof may be briefly summarized. Thus, prosecution testimony at trial revealed that on the evening of January 26, 1962, federal narcotics agent James Ceburre was introduced to appellant Rivera in a hallway at 40 West 89th Street in Manhattan by Alcides Lugo, then a "special employee" of the narcotics bureau. At approximately 8:30 P.M., Rivera directed Ceburre and Lugo to a rear first-floor appartment; there, Rivera handed Ceburre a small glassine envelope containing a white powder, informed him that "this is a sample of cocaine," and indicated that the "Cuban woman is expected momentarily." Rivera then left the apartment, returned to say that he was "waiting for her and expect her," left again, and finally returned at approximately 9:00 P.M. with "the Cuban woman," co-defendant Estella Prat.¹

As revealed by the agent at trial, a brief conversation between Prat and Ceburre ensued, the most significant portions of which strongly indicated that "the Cuban woman" was not acting on her own behalf. Thus, after Ceburre had stated that the "sample" was acceptable and Prat had offered to supply as much cocaine as he desired at a price of $14,000 per kilogram, the agent flatly refused to pay more than $12,000 per kilo. In response, Prat did not attempt to negotiate the terms of sale, but merely stated that she would have to contact "her man" about the reduced price, and thereupon left with Rivera. Through the testimony of agents maintaining surveillance outside the 89th Street address, it was established that Prat entered a street telephone booth, and placed a call immediately upon leaving the building.

At approximately 9:15 P.M., Prat returned to the apartment, followed shortly thereafter by Rivera. In Rivera's presence, Prat told the waiting Ceburre that she had spoken to her "source of supply," and that she was able to deliver five kilograms of cocaine at a compromise price of $12,500 per kilo. When Ceburre agreed to these terms, arrangements were made for delivery of the five kilos between 2:00 and 3:00 P.M. on the following afternoon, at 58 West 89th Street. All of the parties then left the apartment, and the "sample" initially given to Ceburre by Rivera was subsequently tested, and found to contain .99 grams of white powder which was analyzed as 62.6% cocaine.

At 1:30 on the afternoon of January 27, 1962, Ceburre and Lugo arrived at 58 West 89th Street, and entered the building through the basement. As revealed by Ceburre's trial testimony, Rivera met them there, handed Lugo a set of keys, and told them to proceed to apartment 11. Although Rivera told Ceburre that Prat planned to deliver the cocaine at 2:15 that afternoon, it was not until 3:20 that Prat arrived with appellant Guerra, and the two were ushered into apartment 11 by the waiting Rivera.

After a three-cornered conversation among Prat, Guerra and Lugo, unintelligible to Ceburre since it was conducted in Spanish, Prat informed the agent that they had only brought one kilogram of cocaine because it was "too dangerous" to carry five at one time. Guerra then asked Ceburre whether he had brought the money, and Ceburre replied that it was in the trunk of Lugo's car, parked outside the building. In response, Ceburre asked Guerra whether he had the cocaine, whereupon Guerra partially unzipped the jacket he was wearing and extracted two plastic bags containing a white powder which he placed on a bed in the apartment. Ceburre then left to get the money.

Once outside the building, Ceburre took an attache bag from the trunk of Lugo's car and spoke briefly with one of the agents maintaining surveillance. After having been readmitted to the building through the basement entrance by Rivera, Ceburre proceeded to apartment 11, and Guerra opened the door. And at this point, the testimony indicates that pandemonium broke loose.

Narcotics Agent Manley, who had raced up the stairs with Agent Rahas while Ceburre was re-entering the building, flashed his badge to Guerra and shouted, "Hold it, Federal Narcotics Agents. You are under arrest." When Guerra tried to slam the door, Rahas pushed it open, announced that he too was a federal agent, and that all those present were under arrest. At trial, Rahas described the ensuing events: "After I entered the door, the defendant Guerra came out from an alcove or a kitchen that was on my right-hand side and pushed me aside and attempted to escape into the hallway. I struck him with my revolver on the back of the head or the neck, and that sent him across the hall and into the door on the other side of the hallway. As he was stumbling towards the other side of the hallway, I was right behind him. As he hit the doorway on the other side of the hall, he turned, and he produced a pistol from his belt. I grabbed the pistol, called out to the other agents that he had a gun. I held the pistol with my left hand and proceeded to subdue him * * *."

The contents of the two plastic bags which Guerra had placed on the bed were later examined, and found to contain 909.5 grams of powder, tested as 45.6% cocaine.²

I. Guerra

Guerra raises three principal arguments on appeal, all of which we find without merit. Thus, there seems little to his contention that the prosecution failed to make timely production of certain reports prepared by government agents. The record reveals in this regard that in the presentation of the government's direct case at trial, Narcotics Agents Ceburre and Rahas were followed to the stand by Agents Krueger, Avant and Holborow, in that order. At the conclusion of Ceburre's direct testimony, Guerra's counsel made no request for the production of any material under the Jencks Act, 18 U.S.C. § 3500, but Prat's attorney inquired as to whether Ceburre had prepared any reports of his activities in connection with the case. When Ceburre replied that he had, his report was furnished to the defense, and no further requests were made for any other material under § 3500 while Ceburre's cross-examination proceeded.

Similarly, after Rahas' direct testimony was completed, Guerra's counsel requested production of the report that Rahas had prepared, and the document was promptly produced. During the course of Rahas' cross-examination, however, Prat's attorney asked whether the activities of Rahas were made the subject of reports prepared by any other government agents, and requested that such reports be immediately produced. Finding that the defense was entitled to reports of this nature only when the agent who had prepared them was testifying, the Court denied the request at this time.

Although Guerra's attorney had made no Jencks requests when Ceburre had testified, and requested only Rahas' report when that agent was on the stand, Guerra now complains that a report prepared by Agent Krueger should have been produced for the cross-examination of Ceburre and Rahas, and that reports of Agents Rahas, Manley, Avant and Holborow should also have been furnished at the conclusion of Ceburre's direct testimony. Guerra contends, in this regard, that statements made by Ceburre and Rahas were incorporated into the reports of the agents who subsequently testified, and that production of these reports at a time when Ceburre and Rahas remained on the stand was essential to an effective cross-examination of those agents.

Under the circumstances of the present case, Guerra's objections have a hollow ring. Virtually all of the reports in question were, in fact, provided to the defense when the agents who had prepared them — Rahas, Krueger, Manley, Avant and Holborow — completed their direct testimony. As was true with respect to a similar contention in United States v. Romano, 330 F.2d 566 (2d Cir. 1964), the defense was perfectly free to recall Ceburre and Rahas if the Jencks material subsequently produced in connection with the examination of other witnesses would have materially aided in the cross-examination of these two agents. Having made the tactical decision not to do so, Guerra cannot now complain that what he characterizes as a delay in production worked to his disadvantage. In any event, moreover, there was, in fact, no delay in production. Thus § 3500 specifically provides that "no * * * report * * * made by a Government witness * * * shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case." Here, virtually all of the reports were furnished at the stipulated time, and there was accordingly no error. And, since we find, after careful examination of those few reports which were not furnished to the defense, that they did not relate to the subject of the reporting agents' direct testimony, it was not error under the Act to refuse to produce them.

Guerra's...