Appeal from judgments convicting defendant Frank Joseph Fuentes of conspiracy to distribute narcotics, 21 U.S.C. §§ 812, 841, and 846, and defendant Carmello Sansone of conspiracy to distribute narcotics and possession with intent to distribute, 21 U.S.C. §§ 812, 841, and 846, and 18 U.S.C. § 2, following a jury trial in the United States District Court for the Southern District of New York, Lasker, D.J. Affirmed.
Meskill and Waterman, Circuit Judges, and Ward, District Judge.*fn*
Frank Joseph Fuentes ("Fuentes") and Carmello Sansone, a/k/a "Michel" ("Sansone") appeal from judgments of conviction entered January 17, 1977, in the United States District Court for the Southern District of New York, after a seven-day jury trial before Judge Morris E. Lasker.
The indictment, in two counts, charged Fuentes and Sansone with violations of the federal narcotics laws.*fn1 The trial commenced on November 9, 1976. On November 22, 1976 the jury found Sansone guilty on Counts One and Two and Fuentes guilty on Count One.*fn2 Sansone was sentenced to concurrent terms of ten years imprisonment on each count, to be followed by a six-year special parole term. Fuentes was sentenced to seven years imprisonment, to be followed by a six-year special parole term.
In challenging their convictions, the appellants do not challenge the sufficiency of the evidence. Rather, they contend that the trial court erred: (1) in admitting into evidence certain tape recordings and transcripts of conversations between an informant and the appellants, without adequate authentication, in violation of their right of confrontation, and without sufficient proof of the informant's consent; (2) in failing to declare a mistrial when the government informant was not produced at trial; (3) in failing to charge the jury on the voluntariness of certain post-arrest statements made by appellant Fuentes; (4) in failing to order a second competency examination by a psychiatrist who spoke appellant Sansone's native languages. We find no error requiring reversal and therefore affirm.
The government's proof at trial consisted of the testimony of William Schnakenberg, an undercover agent of the Drug Enforcement Administration ("DEA"), and several surveillance agents. In addition, the government introduced into evidence a series of consent recordings made by a government informant known as "Hugo". Hugo himself did not testify, having disappeared approximately one month before the trial began.
On May 27, 1976, Hugo met Carmello Sansone and, in a recorded conversation, told Sansone that Schnakenberg wanted to purchase as much as ten kilograms of cocaine. In this conversation Hugo also told Sansone that Schnakenberg would first require a sample; if the sample was of acceptable quality, Schnakenberg would then purchase a half kilogram of cocaine. Sansone agreed to furnish Hugo with the sample but emphasized that he did not want to meet Schnakenberg. The conversation ended with Hugo telling Sansone that he would determine whether Schnakenberg would authorize him to receive the cocaine. Later that day, Hugo met Sansone and Frank Joseph Fuentes and had an unrecorded conversation.
The sample requested on May 27 was delivered in the early evening of May 28, when Hugo met Sansone and Fuentes in midtown Manhattan and had another unrecorded conversation. DEA agents observing this meeting testified that Fuentes appeared to pass something to Hugo during the course of their conversation. Shortly thereafter, Hugo delivered a sample of cocaine to Schnakenberg who was waiting in a nearby bar. Schnakenberg immediately instructed Hugo to tell Sansone and Fuentes that he, Schnakenberg, had $20,000 in cash with him and that he was now prepared to purchase the half kilogram. Negotiations continued for two hours, ending in a deadlock due to Schnakenberg's insistence on conditioning the sale on his personally meeting Sansone to make the payment and receive the cocaine.
On June 1, 1976, Hugo again met with Sansone and Fuentes and had a recorded conversation. Hugo carried $20,000 to purchase the half kilogram of cocaine, but Sansone and Fuentes noticed the DEA surveillance team following them and aborted the delivery. However, before this occurred, Fuentes left the car in which they were riding to obtain the package of cocaine, entering an apartment building in upper Manhattan.
The attempts to consummate the sale of the half kilogram of cocaine continued on June 2, 1976. Hugo and Sansone drove around for several hours, continuously trying to determine whether they were being followed. Once again the delivery was aborted.
The repeated meetings between Sansone, Fuentes and Hugo apparently convinced Sansone that Hugo and Schnakenberg were the drug dealers they purported to be, for on June 3, 1976, Sansone allowed Hugo to introduce him to Schnakenberg. Schnakenberg and Sansone then had a lengthy recorded conversation, their first, at the end of which Sansone promised that the delivery of the half kilogram of cocaine would be made that day. However, once again, the delivery was not made.
Finally, on June 4, 1976, Schnakenberg and Hugo met Sansone and again agreed on the delivery of the half kilogram of cocaine. At Sansone's direction, Schnakenberg gave Hugo the $20,000 purchase money and Hugo and Sansone departed. About two hours later, Hugo returned and delivered the cocaine to Schnakenberg.
One week later, Schnakenberg and Sansone met and discussed the poor quality of the one-half kilogram delivered on June 4. To placate Schnakenberg, Sansone agreed to provide him with a free "make-up" package of cocaine. With that matter settled, Sansone announced he had more cocaine to sell at $40,000 per kilogram. They then discussed the possibility of a future sale of five kilograms.
On June 15 and 16, 1976, Sansone and Schnakenberg discussed the promised delivery of the make-up package and other ...