United States v. De Lazo, 73-1712

• Decision Date: 30 May 1974
• Docket Number: No. 73-1712,73-1793.,73-1712
• Citation: 497 F.2d 1168
• Parties: UNITED STATES of America v. Maria Rodriguez DE LAZO et al. Appeal of Angel PEREZ in No. 73-1712. Appeal of Joshua MOORE in No. 73-1793.
• Court: U.S. Court of Appeals — Third Circuit

497 F.2d 1168 (1974)

UNITED STATES of America v. Maria Rodriguez DE LAZO et al.

Appeal of Angel PEREZ in No. 73-1712.

Appeal of Joshua MOORE in No. 73-1793.

Nos. 73-1712, 73-1793.

United States Court of Appeals, Third Circuit.

Argued April 4, 1974.

Decided May 30, 1974.

George J. Koelzer, Evans, Koelzer, Doyle & Marriott, Rumson, N. J., for appellant Perez.

Howard J. Diller, Diller & Schmukler, New York City, for appellant Moore.

Jonathan L. Goldstein, U. S. Atty., Richard S. Zackin, John J. Barry, Asst. U. S. Attys., Newark, N. J., for appellee.

Before VAN DUSEN, WEIS and GARTH, Circuit Judges.

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This is an appeal by defendants, Angel Perez and Joshua Moore, from a conviction, after a jury trial, for conspiracy to import and distribute cocaine and for possession of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 846 and 841(a) (1) and 18 U.S.C. § 2. At trial the Government introduced evidence to show that Perez and Moore were part of a conspiracy to manufacture cocaine outside of Bogota, Colombia, and to smuggle it into the United States for distribution. Perez was in charge of the manufacturing function, Lazo of the smuggling into the United States, and Moore and Walcott of the distribution within the United States. In furtherance of that conspiracy, 3885 grams of cocaine were brought into Newark airport on April 30, 1972, where it was seized by federal agents. Named in the indictment as co-conspirators were Maria De Lazo, Norma Hunter, George Walcott, Carrie Wilkerson, and Edelberto Esquijarosa.¹ Susan Boehlke and Mei Ling Moy were unindicted co-conspirators who were given immunity and testified for the Government at trial.

Appellants advance a number of arguments to support their claim that they are entitled to a judgment of acquittal or a new trial. After careful consideration, we find all of them to be without merit.

First, there is sufficient evidence on the record to permit the jury to infer that the cocaine which was seized from Maria Lazo's luggage at Newark airport came from the manufacturing establishment of Perez in Colombia.² Thus the jury could reasonably conclude that Perez was a member of the alleged conspiracy, in furtherance of which the cocaine was brought into Newark, and that he was an aider and abettor of Maria Lazo, whose constructive possession of the cocaine was, therefore, attributable to him. See Pinkerton v. United States, 328 U.S. 640, 646-647, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); United States v. Boyance, 329 F.2d 372, 375 (3d Cir.), cert. denied, 377 U.S. 965, 84 S.Ct. 1645, 12 L.Ed.2d 736 (1964); United States v. Malfi, 264 F.2d 147, 151-152 (3d Cir. 1959).

Second, there is sufficient evidence to support the finding of the jury that Moore was also a member of that same conspiracy and that he was in constructive possession of the cocaine. The testimony of co-conspirators Susan Boehlke and Mei Ling Moy clearly establishes the existence of the alleged conspiracy and Moore's connection with it as one of the principal distributors of the cocaine after it arrived in the United States, and the evidence does not support Moore's contention that he withdrew from the conspiracy prior to the arrival of the cocaine in Newark. It is, of course, true that there must be independent evidence of Moore's participation in the conspiracy to permit the use against him of the declarations of his alleged co-conspirators. However, where, as here, the existence of the conspiracy is established by proof aliunde, slight evidence may be sufficient to connect a defendant with it. See, e. g., United States v. Kenny, 462 F.2d 1205, 1226 (3d Cir.), cert. denied, 409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176 (1972); United States v. Bey, 437 F.2d 188, 190 (3d Cir. 1971). In the present case there was sufficient evidence of Moore's participation in the conspiracy apart from any declarations of co-conspirators,³ and the trial court properly admitted into evidence against Moore the testimony of Susan Boehlke and Mei Ling Moy.⁴

Third, there is no plain error in the trial court's charge to the jury (appellants having failed to object to the charge at the time it was given). See F.R.Crim.P. 52(a). The trial court's instruction on reasonable doubt was not reversible error, United States v. Restaino, 369 F.2d 544, 546 (3d Cir. 1966),⁵ And the remainder of the charge, read as a whole, supported, rather than weakened, that instruction. In addition, there was no plain error in the trial court's instruction on the absence of an overt act requirement under 21 U.S.C. § 846, see Leyvas v. United States, 371 F. 2d 714, 717 (9th Cir. 1967), or on the Pinkerton doctrine, Pinkerton v. United States, supra at 646-647.⁶

All other contentions of appellants have been considered and rejected.⁷

Accordingly, the district court orders of judgment and commitment will be affirmed.

1 In addition to the conspiracy and possession counts, Lazo was charged with a violation of 18 U.S.C. § 924(c). At the time of trial, Esquijarosa was a fugitive and was severed from the case. During the course of the trial, co-defendants Wilkerson, Walcott, Lazo and Hunter pleaded guilty to the conspiracy count and were then severed from the trial.

2 (1) Both Susan Boehlke and Mei Ling Moy testified that they were recruited by Maria Lazo to go to Colombia in order to bring back cocaine which was to be manufactured there by Maria's husband, Angel Perez (N.T. 81, 590-91). (2) Both Susan and Mei Ling went to Colombia, where they, as well as Maria Lazo, watched and occasionally assisted Perez in the manufacturing operation (N.T. 121-24, 682-86). (3) Within a short time after the cocaine was produced, Maria arrived at Newark airport via Kennedy Airport, accompanied by Carrie Wilkerson ("Tina") and Norma Hunter ("Lisa") (N.T. 865-74). Both Susan and Mei Ling identified Tina and Lisa as women who also had been with Perez in Colombia and had been sent there for the express purpose of transporting Perez's cocaine into the United States (N.T. 92-101, 104-07, 128-30, 690-91). (4) Maria, Tina, and Lisa had arrived at Kennedy Airport from California (N.T. 869). Susan testified that while in Colombia, Maria had discussed the possibility of bringing Perez's cocaine to New York through California (N.T. 129). (5) Susan testified that the luggage in which the cocaine was found was the same luggage which Maria had with her while she was with Perez in Colombia (N.T. 296-97, 941-43, 949-51).

3 (1) Mei Ling Moy testified that just before Maria Lazo and Tina left for Colombia in January of 1972, Maria gave Mei Ling a note to deliver to Moore. Mei Ling met with Moore shortly thereafter, and he asked her how she knew Maria and engaged her in a discussion concerning cocaine. He offered to sell, and later did in fact sell, a quantity of cocaine to Mei Ling (N.T. 621-25). (2) BNDD agents testified that they observed Moore and other co-conspirators meet Maria Lazo, Tina, and Lisa when the three women arrived at Kennedy Airport from California. Moore accompanied the three women from Kennedy to Newark airport where the women's luggage had been sent, luggage which contained four kilos of cocaine (N.T. 865-74). (3) After his arrest and release on bail, Moore met with Susan Boehlke. Susan testified that, when she asked Moore how Tina and Lisa were doing, Moore told her the girls had "messed up" and that he himself was going to South America and take one or two girls with him (N.T....