Appeal from a judgment of conviction for conspiracy to import and to possess with intent to distribute cocaine, entered in the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge. Affirmed.
Before Oakes, Circuit Judge, Wyzanski*fn* and Neaher,*fn** District Judges.
Jose Edgar Lopez appeals from a judgment of the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge, convicting appellant, after a jury trial, of conspiring to import and to possess with intent to distribute a quantity of cocaine, 21 U.S.C. § 846.*fn1
Appellant argues that there was insufficient evidence to support the verdict against him, that the prosecutor's summation violated appellant's Fifth Amendment right against self-incrimination, and that the district court failed properly to instruct the jury that no inference adverse to appellant could be drawn from his failure to testify.
The sufficiency of the evidence is beyond dispute. The Government's primary witness was a coconspirator, Arturo Romero, was who arrested at John F. Kennedy International Airport with 328 grams of cocaine. He testified that he had met appellant on a previous visit from Venezuela, and that they subsequently discussed the possibility of importing cocaine. He further revealed that appellant telephoned him in Venezuela to advise that a man called Caesar would contact Romero concerning the cocaine which Romero was to bring into the United States. Caesar contacted Romero, gave him the cocaine and made arrangements for Romero's trip to New York. After Romero was apprehended at the airport, he agreed to assist law enforcement authorities. He telephoned appellant at the latter's home, dialing the telephone number by memory, and the conversation was recorded by Government agents. The dialogue, without expressly mentioning the subject of narcotics, consisted of a series of inquiries by appellant seeking assurance that everything had gone well.*fn2 They agreed to meet in Manhattan at 55th Street and Seventh Avenue. The meeting took place under surveillance, after appellant took considerable care to make certain that no one was following Romero, who had been given a dummy load of narcotics by the agents. Appellant was arrested as he and Romero were leaving a coffee shop at the northeast corner of the above-mentioned streets. Following appellant's arrest, his address book, which contained Romero's telephone number and address in Venezuela, was seized. After advice as to his constitutional rights he made two false exculpatory statements, denying that he knew Romero and that he had been a party to the taped telephone call. The defense did not offer any evidence to rebut the Government's version of the events. Clearly, the evidence was sufficient to justify the jury's verdict of guilt.
Lopez complains that three statements of the prosecutor during summation amounted to indirect commentary on appellant's failure to testify. The first two statements implied that the telephone conversation between Romero and appellant, recorded at the airport, was susceptible of only one interpretation discussion of the cocaine transaction. The prosecutor, in initial summation, stated:
I'd like you to read that translation, which you'll have in the jury room again. I want to hear I'm interested in hearing in summation (defense counsel's) explanation of it. No names at the beginning. "Who am I talking to? With a friend. It's me. Yes, I already know. Did it go well? It went well."
During rebuttal the prosecutor again alluded to the telephone call as follows:
Gee, you know, that phone call I asked, I thought maybe there would be some explanations (Sic ) for the languages (Sic ) in the phone call. If there was some, I guess I must have missed it.
No objection was made to either of these references to the telephone call, and no curative instruction or charge was sought. Thus, reversal is proper only if the prosecutor's comments were so prejudicial as to constitute plain error. See United States v. Briggs, 457 F.2d 908, 912 (2d Cir.), Cert. denied, 409 U.S. 986, 93 S. Ct. 337, 34 L. Ed. 2d 251 (1972).
We hold that the jury would not "naturally and necessarily," See United States ex rel. Leak v. Follette, 418 F.2d 1266, 1268-69 (2d Cir. 1969), Cert. denied, 397 U.S. 1050, 90 S. Ct. 1388, 25 L. Ed. 2d 665 (1970); United States v. Bubar, 567 F.2d 192, 199 (2d Cir.), Cert. denied, 434 U.S. 872, 98 S. Ct. 217, 54 L. Ed. 2d 151 (1977), interpret the prosecutor's remarks in this case as a comment on appellant's failure to testify. Rather, these statements were simply comments on the weakness of the defense case, well within permissible bounds of advocacy. See United States v. Rodriguez, 556 F.2d 638, 641-42 (2d Cir. 1977) (prosecutor may tell jury that certain factual evidence is "uncontradicted" and that "nothing in the record places the proffered evidence in doubt"), Cert. denied, 434 U.S. 1062, 98 S. Ct. 1233, 55 L. Ed. 2d 762 (1978); Cf. United States v. Bubar, supra, 567 F.2d at 199-200 (prosecutor's reference in rebuttal to defendants' failure to "explain" or "refute" certain evidence in response to defendants' counsel's arguments permissible).
Appellant also objects to the prosecutor's suggestion in initial summation that if appellant had had a steady job for four years, as his attorney claimed, the work records would have been produced.*fn3 This reference was very likely not improper in view of the fact that on cross-examination of Mr. Romero defense counsel stressed that appellant had worked as a clerk for a given concern for four years. See United States v. Bubar, supra, 567 F.2d at 199-200; United States v. Rodriguez, supra, 556 F.2d at 641-42; Cf. United States v. Floyd, 555 F.2d 45, 47 (2d Cir. 1977) (prosecutor's reference in rebuttal summation to defendant's power to subpoena witnesses, in response to defense summations referring to the Government's failure to produce certain witnesses did not deprive appellants of their right to rely on the prosecution's burden of proof), Cert. denied, 434 U.S. 851, 98 S. Ct. 163, 54 L. Ed. 2d 120 (1977). In any event, upon defense counsel's objection, the court instructed the jury to disregard the comment and also instructed the jury three times that appellant was not required to prove his innocence or to submit evidence on his own behalf.*fn4 Any error, therefore, was harmless.
Appellant also claims that the trial court erred in failing to instruct the jury that no adverse inference could be drawn from Lopez' failure to testify or to produce evidence in his behalf. This contention is frivolous not just because counsel neither objected to the charge nor asked for additional cautionary instructions but because the jury was instructed that "no inference of any kind," See note 4 Supra, could be drawn from appellant's failure to testify or to produce evidence.
Although not urged below or on appeal there is a serious question whether certain out-of-court declarations of Romero were improperly admitted. Krulewitch v. United States, 336 U.S. 440, 443-44, 69 S. Ct. 716, 93 L. Ed. 790 (1949), as modified by Lutwak v. United States, 344 U.S. 604, 617-19, 73 S. Ct. 481, 97 L. Ed. 593 (1953), and Anderson v. United States, 417 U.S. 211, 218-19, 94 S. Ct. 2253, 41 L. Ed. 2d 20 (1974), holds that hearsay declarations (as opposed to acts) of one alleged coconspirator made After the conspiracy ends may not be admitted against the other conspirator to prove the existence of the conspiracy. While Romero's taped telephone conversation may be said to have occurred after the conspiracy ended, because Romero was already arrested and the narcotics seized, Fiswick v. United States, 329 U.S. 211, 217, 67 S. Ct. 224, 91 L. Ed. 196 (1946), it was offered not to prove the truth of the declarations but to prove that Romero and Lopez knew each other. It was, therefore, not hearsay and admissible. See Anderson v. United States, supra, 417 U.S. at 219-21, 94 S. Ct. 2253; Fed.R.Evid. 801(c). So, too, evidence of the meeting itself, if a "statement" at all, See Fed.R.Evid. 801(a), was admissible under Lutwak and Anderson because it was post-conspiracy Conduct. See United States v. Bermudez, 526 F.2d 89, 95-96 (2d Cir. 1975), Cert. denied, 425 U.S. 970, 96 S. Ct. 2166, 48 L. Ed. 2d 793 (1976). Romero's post-arrest statements to the law enforcement authorities which implicated Lopez are in a different category. The traditional view is that prior consistent statements of a declarant offered to prove the truth of the matter asserted are inadmissible hearsay. McCormick on Evidence § 251, at 601-04 (2d ed. 1972); 4 Wigmore on Evidence §§ 1123-24, at 254-55, 1132, at 294-96 (Chadbourn ed. 1972). Where the declarant is present and subject to cross-examination, however, as was Romero, they are arguably not hearsay. E. g., McCormick on Evidence, supra; see 3A Wigmore on Evidence, supra, § 1018, at 995-96 (Chadbourn ed. 1970) (criticizing orthodox view excluding prior inconsistent statements on hearsay grounds when witness is subject to cross-examination). It is unnecessary, however, to grapple with this rather abstract question which also implicates matters of policy.*fn5 The rule is that once a witness's testimony has been attacked as a recent fabrication or he is charged with improper influence or motive, his prior statements consistent with his testimony are admissible for the limited purpose of rehabilitation. Fed.R.Evid. 801(d)(1)(B); E. g., Applebaum v. American Export Isbrandtsen Lines, 472 F.2d 56, 60 (2d Cir. ...