United States v. Pomares, 1127

• Decision Date: 05 July 1974
• Docket Number: Docket 74-1219.,No. 1127,1127
• Citation: 499 F.2d 1220
• Parties: UNITED STATES of America, Appellee, v. Ariel POMARES and Antonio Veciana, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

499 F.2d 1220 (1974)

UNITED STATES of America, Appellee, v. Ariel POMARES and Antonio Veciana, Defendants-Appellants.

No. 1127, Docket 74-1219.

United States Court of Appeals, Second Circuit.

Argued June 14, 1974.

Decided July 5, 1974.

Bancroft Littlefield, Jr., Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S. D. N. Y., and S. Andrew Schaffer, Asst. U. S. Atty., on the brief), for appellee.

Henry J. Boitel, New York City (Barry L. Garber, Miami, Fla., and Abraham H. Brodsky, New York City, on the brief), for defendants-appellants.

Before LUMBARD, HAYS and TIMBERS, Circuit Judges.

LUMBARD, Circuit Judge:

After a five-day trial in the Southern District before Judge Bonsal and a jury, Ariel Pomares and Antonio Veciana were convicted on January 14, 1974 on both counts of an indictment which charged them with conspiracy to distribute narcotics and possess them with intent to distribute, and with the distribution of approximately seven kilograms of cocaine. 21 U.S.C. §§ 812, 841(a)(1), 841(b) (1) (A), and 846. Pomares was sentenced to concurrent terms of five years on each count, to be followed by a special parole term of three years. Veciana received concurrent terms of imprisonment of seven years on each count, also to be followed by a special parole term of three years.

On appeal, the defendants make several points, the two principal ones being that Pomares' confession to government agents was involuntary and that the government waived its right prior to trial to introduce into evidence portions of Pomares' confession. We affirm.

The evidence at trial established that the two defendants, along with a co-conspirator who pleaded guilty, Augustin Barres, organized a cocaine smuggling ring which succeeded in smuggling twenty-five kilograms of pure cocaine into the United States from Bolivia before Barres was finally arrested while delivering seven kilograms to an undercover agent on July 23, 1973. Barres' role in the conspiracy was to help finance the purchase of the cocaine. Veciana was responsible for travelling to Bolivia, purchasing the drugs and delivering them to Bolivian diplomats who then smuggled them into the United States, while Pomares had the task of arranging sales in the United States. All three were experienced businessmen who had fled to Florida from Cuba after Castro had come to power.

After Barres' arrest, he agreed to cooperate with the government. On the basis of information which he provided, Veciana was arrested in Miami on July 24, 1973 and Pomares was arrested at his home in Puerto Rico on July 29, 1973.

Upon his arrest, Pomares was advised of his rights in Spanish by Special Agents Pinol and Amador. He was then taken to the Drug Enforcement Administration office in San Juan where, prior to questioning, he was again advised of his rights by Agent Pinol. After being advised of his rights on each of these occasions, Pomares was told that he faced heavy penalties for his smuggling activities, that he was his own best lawyer, and that the wisest course of action would be to cooperate with the government rather than exercise his right to remain silent. Pomares agreed to cooperate, and confessed twice. On the second of these occasions, Agent Pinol took handwritten notes of what was being said. These notes were eventually put into the form of a typewritten report and introduced as an exhibit in the suppression hearing held by Judge Bonsal to determine the admissibility of Pomares' confession at trial. Judge Bonsal ruled that Pomares' confession was admissible.

On October 4, 1973, during a pretrial conference, the attorney for Veciana raised the issue of "a potential severance problem under Bruton since one of the defendants Pomares did give a statement and the other one Veciana did not." Assistant United States Attorney Bannigan responded: "I can resolve that right now. We will not use the statement."

At trial, the government took the position that it had only waived use of the written statement in order to avoid the Bruton problem, but that it had recently learned that Pomares had made an earlier confession, and that Special Agent Pinol was prepared to testify as to this earlier oral confession. Defense counsel objected that the government had waived its right to introduce any confession and in any event both confessions were essentially one and the same, having been obtained within no more than three hours of each other on the same day. Judge Bonsal concluded that the waiver did not reach to the earlier oral confession. In order to avoid any Bruton problem, however, the court ruled that only those portions of Pomares' confession could be introduced which dealt with events after Veciana had delivered the last shipment of cocaine. Thus so much of the statement as was admitted in evidence made no mention of Veciana or any transactions in which he participated.

I.

On appeal, Pomares and Veciana maintain that Pomares' confession was involuntarily obtained and therefore should not have been admitted in evidence. They argue that the comments of the special agents who arrested Pomares that he faced severe penalties, that he was his own best lawyer, and that full cooperation with the government would be the best course were improper and coerced the defendant into confessing.

We emphasized in United States v. Ferrara, 377 F.2d 16, 17 (2d Cir.), cert. denied, 389 U.S. 908, 88 S.Ct. 225, 19 L. Ed.2d 225 (1967), that

the test of voluntariness of a confession is whether an examination of all the circumstances discloses that the conduct of "law enforcement officials was such as to overbear the defendant\'s will to resist and bring about confessions not freely self-determined. . . ." Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 741, 5 L. Ed.2d 760 (1961). . . .

The...