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United States v. Perez

*fn* filed february 22 1983: January 24, 1983.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ALBERT PEREZ, DEFENDANT-APPELLANT.



Appeal from a judgment of conviction in the United States District Court for the Southern District of New York, Milton Pollack, J., entered on July 7, 1982, after a jury trial. Affirmed.

Before:

WATERMAN, PIERCE and WINTER, Circuit Judges.

Per Curiam: :

This is an appeal from a judgment of conviction in the United States District Court for the Southern District of New York entered after a three-day jury trial before Judge Milton Pollack.

On September 20, 1973, appellant was indicted as a member of a conspiracy involving twelve named and various unnamed co-conspirators engaged in a scheme to distribute narcotics in violation of 21 U.S.C. § 841(a)(1). The named defendants included, among others, Vincent Pacelli, Jr., Alfred Catino, a/k/a "Herbi," Al Bracer, Albert Perez, a/k/a Abbe Perez, Edgardo Ramirez, and John Fazzalari, a/k/a "Fuzzy." Others named as co-conspirators, but not as defendants, included Herbert Sperling and Barry Lipsky.

Perez was not arrested with the other conspirators because he had fled the country in the latter part of 1972. He was not arrested for his role in the conspiracy until April 13, 1979, in Scottsdale, Arizona. On April 16, 1979, Perez was removed to New York to face the narcotics charges lodged against him in the 1973 indictment. Prior to trial he again fled the authorities, and a separate indictment charging bail jumping was filed on December 27, 1979, pursuant to 18 U.S.C. § 3150. Perez eluded apprehension until March 10, 1982, when he was rearrested in New York City. He was tried before a jury on the narcotics and bail jumping indictments from May 17 through May 19, 1982.

At trial, the government introduced evidence of a narcotics conspiracy involving Perez and two other principal partners, Vincent Pacelli and Al Bracer. Also presented was the testimony of co-conspirator Barry Lipsky who testified, inter alia, to an out-of-court declaration in which Pacelli told him that "he [Pacelli] had just formed a partnership with Abbe Perez and Al Bracer. . . ." (Tr. 37). Further, Lipsky testified concerning his participation in conversations with Pacelli and Perez in which the three men discussed their narcotics transactions. (Tr. 58-59).

Other evidence presented by the government regarding Perez" involvement in the conspiracy included testimony by narcotics agents, Joseph Salvemini and Gerald Smith, about their observations of Perez during the pertinent period. In addition, Perez" former girlfriend, Emily Flores, testified that numerous meetings took place at their apartment at which Pacelli, Lipsky, Bracer and Perez were present.

At the termination of the jury trial, appellant was convicted of conspiracy to distribute narcotics in violation of 21 U.S.C. § 841(a)(1). Appellant was also convicted of failing to appear for trial in violation of 18 U.S.C. § 3150.

On appeal from the former, Perez contends that Lipsky's testimony as to the conversation between Pacelli and Lipsky, which implicated Perez as a partner in the drug conspiracy, was inadmissible hearsay and that its admission violated Perez" right of confrontation. Since we find the statement admissible under the co-conspirator's hearsay exception, Fed.R.Evid. 801(d)(2)(E), we reject appellant's contentions and affirm the judgment of conviction.

The law in this circuit regarding the admissibility of declarations made by co-conspirators is set forth in United States v. Geaney, 417 F.2d 1116 (2d Cir. 1969), cert. denied, 397 U.S. 1028, 90 S. Ct. 1276, 25 L. Ed. 2d 539 (1970). In Geaney, Judge Friendly wrote:

[w]hile the practicalities of a conspiracy trial may require that hearsay be admitted "subject to connection," the judge must determine, when all the evidence is in, whether in his view the prosecution has proved participation in the conspiracy, by the defendant against whom the hearsay is offered, by a fair preponderance of the evidence independent of the hearsay utterances.

Id. at 1120. Thus, a Geaney finding as to the existence of a conspiratorial relationship between the declarant and the defendant must be shown aliunde of the hearsay statement itself. See also United States v. Ziegler, 583 F.2d 77, 79-80 (2d Cir. 1978); United States v. Mangan, 575 F.2d 32, 42 (2d Cir.), cert. denied, 439 U.S. 931, 58 L. Ed. 2d 324, 99 S. Ct. 320 (1978).

Appellant argues that Lipsky's inadmissible hearsay testimony was the only proof linking Perez to the conspiracy. Therefore, he contends, there was no independent ...


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