Appeal from judgments of conviction following a jury trial in the United States District Court for the Eastern District of New York, Eugene H. Nickerson, Judge, on counts of distributing cocaine and possessing cocaine with intent to distribute. Held that items seized during a search of appellants' apartment were properly admitted into evidence, that the district court's instructions were neither too confusing nor too coercive, and that appellant Olga Valencia was not entrapped as a matter of law. Held further that it was error to withdraw from appellant William Valencia and defense that he was indirectly entrapped by means of communications from his codefendant and wife Olga Valencia who had contact with a government agent. Judgment affirmed as to Olga Valencia; reversed and remanded as to William Valencia.
Before Oakes and Van Graafeiland, Circuit Judges, and Tenney, District Judge.*fn*
This is an appeal from judgments of conviction entered in the United States District Court for the Eastern District of New York, Eugene H. Nickerson, Judge, following a jury trial. Appellant William Valencia was acquitted on Count One of the indictment charging him with conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, but convicted on Counts Two and Three charging him with distributing cocaine and possessing cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Appellant Olga Valencia was convicted on all three counts, but at sentencing the Government moved to dismiss Count One as to her. Appellant William Valencia was sentenced to concurrent terms of three years' imprisonment with a special parole of five years. Appellant Olga Valencia was sentenced to a term of imprisonment of three years and six months with a special parole term of ten years.
Appellant William Valencia primarily argues that the trial court erred in improperly withdrawing a major part of his entrapment defense during jury deliberations. Because we agree with that argument, we reverse his conviction and remand for a new trial. Both appellants also claim that the warrantless search of their apartment violated their Fourth Amendment rights and that other portions of the district court's supplemental instructions on entrapment were erroneous. In addition, appellant Olga Valencia argues that the evidence at trial established that she was entrapped as a matter of law and that the court's modified Allen charge*fn1 was coercive. We disagree with these arguments and accordingly affirm Olga Valencia's conviction.
On May 17, 1979, government informant Maria Palacio and undercover detective Jose Guzman, assigned to the New York Drug Enforcement Administration (DEA) Task Force, arrived at the apartment of appellants William and Olga Valencia in Queens, New York. Olga let them into the apartment where William was sitting at the kitchen table. Palacio told the Valencias that Guzman had come to buy cocaine from them. When Guzman asked to examine the cocaine, Olga produced a triple-beam balance scale and two bags containing a white substance. Guzman told her that she need not weigh the cocaine because any discrepancy could be rectified in future purchases. The Valencias assured him that the cocaine was pure. After Guzman performed a test on the cocaine, there was a disagreement about the price. Olga sought to charge him $6,500 for the one-eighth of a kilogram involved, while Guzman countered with $6,300 because he claimed that the cocaine was not pure. According to Guzman's testimony, William interjected that they could not accept $6,300 because their profit margin would be too low. They finally settled on a price of $6,450. Guzman testified that he handed this sum to William and that William then handed it to Olga, stating that she could count it more quickly.
As the money was being counted, according to Guzman, William told Guzman that he "used to be in the business," but had to turn the duties over to Olga because he had been injured in an automobile accident. Before leaving, Guzman expressed interest in making additional purchases. Appellants told him that they would be able to supply as much "weight" as he wanted as long as they received one day's advance notice.
Five days later, Guzman went back to the apartment. There he talked with William and another person who was later identified as Arturo Arboleda. In response to a question from William, Guzman told him that the cocaine that he had purchased from them was not as pure as he had been led to believe. Olga was not home, but William urged Guzman to wait because Olga had some higher quality cocaine to sell him. Guzman left and returned in half an hour, but Olga still had not returned. Guzman then left without making any additional purchases.
Guzman next met with Olga on June 14, 1979, on a Queens street. He sought to buy additional cocaine, but she told him that she did not have any. According to Guzman, she told him that her "connection," Arboleda, had been arrested, but that she was attempting to find a new connection and knew one source of supply from which she could get a kilogram for $68,000. On June 20, the Valencias told Guzman at their apartment that they had found a new connection, but that he had failed to meet them at a prearranged time. When Olga failed to reach the connection after trying again, Guzman left.
The Valencias had advised Guzman that they were planning to move because they feared they were being followed by the police. Thus alerted, the DEA Task Force arrested the Valencias on June 21, 1979. Olga was arrested without a warrant on a street outside the Valencias' apartment. In response to a question from the officers, Olga told them that William was inside the apartment. They asked Olga if they could enter the apartment. She did not respond, but walked toward the apartment. The officers then followed her into the apartment without protest from her. Once inside the apartment, the officers arrested William, also without a warrant. One of the officers, Detective Robert Johnson, drew his gun just before entering, but Olga did not see it. Johnson then handed to Olga and William a card with Miranda warnings in Spanish. The Valencias indicated that they understood the warnings. According to the officers' testimony at a pretrial suppression hearing, which testimony Judge Nickerson found "wholly credible," Johnson asked Olga if the officers could search the apartment and she gave her consent, stating that she had "nothing to hide." Johnson then searched Olga's pocketbook, which was lying on the kitchen table within reach of Olga and William. Pieces of paper with narcotics-related writing were found in the pocketbook. A balance scale, strainer and spoon with traces of cocaine were found in a closet, and a bag containing a cocaine cutting substance, inositol, was found in the bedroom.
Olga's defense at trial was essentially entrapment. William relied on entrapment to some extent, although counsel for William also argued in summation that there was insufficient evidence to link William to the cocaine transactions at all.*fn2
Maria Palacio, the government informant, was called to testify by William Valencia. She had agreed to cooperate with the DEA because her son had been arrested on a cocaine charge and she was trying to aid his case. Palacio testified that she first spoke to Olga in Elisa's Bar in Queens in May of 1979, when Olga approached her, although she had seen Olga in the bar before that time. According to Palacio, Olga told her that she needed money and Palacio expressed a similar need to Olga. Palacio testified that Olga then told her that she had cocaine to sell, but did not have any customers. They entered into an agreement, according to Palacio, whereby Palacio would find customers for Olga in exchange for a share of the proceeds. Palacio later testified that Olga was the first one to bring up the subject of drugs. Palacio then reported this conversation to the DEA authorities and agreed to introduce an undercover agent to Olga.
Palacio further testified that on the evening of May 16, 1979, the day before the sale to Guzman, she and Olga met a man, whom Olga described as her "connection," on a street corner in Queens. According to Palacio, Olga said the connection had left a sample of the cocaine at the Valencias' apartment. Palacio testified that they then drove to the apartment where they found a tinfoil packet of cocaine which had been left with William. Olga gave it to Palacio, who turned it over to Detective Johnson. Palacio indicated that she never spoke to William directly about cocaine.
Olga then took the stand in her own defense and testified that she had met Palacio at Elisa's Bar after she had begun to work there as a cleaning woman in February of 1979. Olga testified that she complained to Palacio about her need for money as a result of William's auto accident, and that Palacio responded that her son had been involved in selling cocaine and that they could make money by selling cocaine themselves to her son's former customers. Olga claimed that she initially resisted the idea, but that from February to May of 1979 Palacio was continually "pushing" and "coercing" her to enter into the cocaine selling plan. Olga testified that she finally capitulated because of her financial difficulties. Shortly after this, Olga testified, Palacio supplied her with the scale, the spoon, the strainer, and a small amount of cocaine.
It was Olga's testimony that on May 17, 1979, the day the cocaine was sold to Guzman, she received one-eighth of a kilogram of cocaine and the cutting substance at Elisa's Bar from someone she knew only as "Jose." She testified that Jose gave her the cocaine on credit even though they did not know each other well. Olga admitted selling the cocaine to Guzman, and admitted that the narcotics-related writing found in her pocketbook was hers. But she denied that William had any involvement with the sale of cocaine and disputed testimony by Detective Johnson that she had engaged in evasive driving tactics on one occasion as she and William were driving to Arboleda's apartment.
No objection was taken by defense counsel or is made here to the district court's initial instruction on entrapment noted in the margin.*fn3 Twice more, in response to jury requests, the court reread this original entrapment charge. Upon a third request by the jury for elaboration upon the subject of entrapment, particularly with respect to "the degree of inducement by a Government agent which would constitute entrapment," the court delivered a modified and extended version of its previous charge, also set forth in the margin.*fn4 This charge was objected to by defense counsel on the grounds that it was one-sided and failed to mention reasonable doubt.
Shortly thereafter, the judge solicited counsel's views on whether or not the defendant William Valencia was entitled to the defense of entrapment at all because he had not been directly induced by a government agent but rather, if at all, by his codefendant Olga. After some argument on the issue, the court decided that it would not withdraw the entrapment defense entirely from William despite the fact that a portion of his defense was that he had nothing to do with the transaction. The court instead permitted the jury to consider whether or not William was entrapped directly by Guzman or Palacio at some point, but instructed the jury that William could not be indirectly entrapped through communications from Olga. That supplementary instruction is also set forth in the margin.*fn5 Counsel for William then objected to the charge on the grounds that the jury had not requested it and that it was inconsistent with the court's prior instructions. Ten minutes later, the jury returned with its verdict finding William not guilty on the conspiracy count but guilty on the other two counts. At the same time, the jury stated that it was "deadlocked on whether Olga was a victim of entrapment." The next day the court gave the jury a modified Allen charge and further explanation of the entrapment principle, which is also set forth in the margin.*fn6 There is no indication that defense counsel objected to either. Thereafter, the jury returned with yet another note, which read:
According to the law does the willingness and readiness of a person to commit an unlawful act have to be present before any initiation by a government agent-or does the fact that a person was willing and ready to commit an unlawful act without hesitation when the suggestion was made by the agent determine whether entrapment exists?
The court's response to this question was not objected to by counsel and is set forth in the margin.*fn7 The jury returned fifteen minutes later with a verdict of guilty as to Olga on all three counts.
We dispose of appellants' meritless contentions first.
A. The warrantless entry into and search of appellants' apartment. Appellants claim that the evidence seized during the warrantless entry into and search of their apartment should have been suppressed because it was seized in violation of the Fourth Amendment. This evidence included the narcotics-related writing, the triple-beam balance scale, the strainer, the spoon, and the cocaine cutting substance. Appellants had stipulated that on June 21, 1979, the date of their arrest, police officers from the DEA Task Force had probable cause to arrest them.
Despite Olga's testimony that she never consented to a search of the apartment, the district court denied appellants' suppression motion. The court found that following Olga's arrest she consented to the entry by the officers into the apartment and that even if she had not there were exigent circumstances which permitted entry. The court further found that the items obtained in the apartment were seized pursuant to a valid consent, and that the seizure of the narcotics-related writings was incident to the lawful arrest of William.
There is no reason to disturb the district court's findings that Olga voluntarily consented to the entry into and search of the apartment. Whether consent is voluntarily given is "a question of fact to be determined from the totality of all the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 2048, 36 L. Ed. 2d 854 (1973). In order to establish a valid consent, it need not be shown that there has been a knowing and intelligent waiver of the right to refuse consent, unlike the situation in Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938), which required such an explicit waiver before a defendant could be found to have relinquished rights designed "to preserve a fair trial." Schneckloth v. Bustamonte, supra, 412 U.S. at 237, 93 S. Ct. at 2053. The Court in Schneckloth held such a strict standard inapplicable to waivers of Fourth Amendment rights because those rights do not affect the fairness of the trial. Id. at 241, 93 S. Ct. at 2055. Nor does the decision in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), "require( ) the conclusion that knowledge of a right to refuse is an indispensable element of a valid consent." Schneckloth v. Bustamonte, supra, 412 U.S. at 246, 93 S. Ct. at 2058. Since no showing is thus required that Olga knew of her right to refuse consent or that she intelligently waived that right, the district court's findings that she voluntarily consented to the entry and search must be upheld unless it is clear from the evidence either that she was coerced or that the court's finding of consent was clearly erroneous.
There is no evidence that the DEA agents coerced Olga into letting them enter the apartment. When they asked if they could enter, Olga walked toward the apartment and opened the door for them with a set of keys. She did not protest their entry in any way. There was no coercion other than that inherently arising from the fact of her arrest, which is itself insufficient to demonstrate that the consent was coerced. United States v. Watson, 423 U.S. 411, 424, 96 S. Ct. 820, 828, 46 L. Ed. 2d 598 (1976). While Detective Johnson drew his gun just before Olga opened the apartment door, Olga testified that she never saw Johnson draw the gun.
Similarly, there is no reason to dispute the district court's finding that Olga gave her voluntary consent to a search of the apartment. Although Olga testified at the suppression hearing that she never gave such consent, the district judge found her testimony on this score "wholly incredible" and the agents' testimony "wholly credible." Nothing in the record indicates that the district court erred in evaluating the testimony in this fashion, or that Olga was in any way coerced into consenting to the search.
Finally, the search of Olga's pocketbook containing the narcotics-related writing can also be justified as incidental to a lawful arrest, irrespective of Olga's consent to search. The pocketbook was on the table within reach of both William and Olga, and an arresting officer is entitled to search belongings in "the area into which an arrestee might reach in order to grab a weapon or evidentiary items." Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685 (1969).
B. The charge as a whole. Leaving aside momentarily the question of the instruction that removed most of the entrapment defense from William Valencia, the rest of the court's charge contained no reversible error. The court's initial instruction on entrapment, note 3 supra, conformed with this court's recommendations in United States v. Martinez-Carcano, 557 F.2d 966, 970 (2d Cir. 1977), and United States v. Braver, 450 F.2d 799, 805 (2d Cir. 1971), cert. denied, 405 U.S. 1064, 92 S. Ct. 1493, 31 L. Ed. 2d 794 (1972). As this court suggested in those cases, nowhere in the charge did the district court refer to any "burden" or "burden of proof" imposed on defendants to establish government inducement as a prerequisite to claiming entrapment. In response to notes from the jury, the court twice reread this charge, which appellants have never challenged.
Appellants contend that the court's first supplemental instruction, note 4 supra, failed to correct a possible misunderstanding on the part of the jury that defendants were required initially to prove inducement beyond a reasonable doubt before entrapment could be found. This instruction was given in response to a jury request for elaboration on "the degree of inducement by a Government agent which would constitute entrapment" and for "the definition of inducement." The court once again declined to allocate the burden of proof on the inducement question and focused instead on whether defendants had the propensity to commit the offense. If the court had followed the course now suggested by appellants and had instructed the jury on "the burden and level of proof required to show inducement," it once again would have run afoul of the principles set out by this court in Martinez-Carcano, supra, and Braver, supra. Under those cases, the district court should not instruct the jury that there is any burden at all on defendants to prove inducement. There is little risk that the jury will impose too great a burden on defendants if no burden is mentioned at all. Indeed, if anything, the district court's initial and first supplemental instructions here were generous to defendants since there instructions emphasized the question of propensity-a question that is only reached when there is sufficient evidence of inducement.
Appellants further challenge this first supplemental instruction on the ground that it failed to reiterate the requirement that the Government prove propensity beyond a reasonable doubt. At the conclusion of this instruction, however, the court explicitly stated: "Bear in mind, the balance of my instructions with respect to every element of the case, the burden of proof and so forth." This ...