Appeal from a judgment of the United States District Court for the Southern District of New York, (Cannella, J.), convicting defendant, upon jury verdicts, of conspiracy and possession of cocaine with intent to distribute.
Kearse, Pierce and Pratt, Circuit Judges.
Luis E. Garcia-Duarte appeals from a judgment entered after a jury trial in the District Court for the Southern District of New York (John M. Cannella, Judge), convicting him of conspiracy to distribute and possess with intent to distribute cocaine, 21 U.S.C. § 846, and possession of cocaine with intent to distribute, 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A). He was sentenced to five years and a $15,000 fine on the conspiracy count and to five years' unsupervised probation on the substantive count.
On appeal Garcia-Duarte challenges (1) the admission into evidence of an alleged coconspirator's "customer book"; (2) the sufficiency of the evidence on the conspiracy count; (3) the refusal of the trial judge to give a lesser-included offense charge on the substantive count; (4) the wording of the trial judge's "uncalled witness" charge; and (5) the quality of the government's presentation to the grand jury. We conclude that admission of the customer book was erroneous, and that without it the evidence was insufficient to support Garcia-Duarte's conspiracy conviction; accordingly, we reverse and dismiss Count One of the indictment. On Count Two, because Garcia-Duarte was entitled to a charge on the lesser-included offense of simple possession, we reverse and remand for a new trial. This makes it unnecessary to consider whether Garcia-Duarte was prejudiced by the challenged uncalled witness charge. Finally, the defects in the government's grand jury presentation, while regrettable, could only have affected the conspiracy count and are therefore moot.
On May 10, 1982, Edgar Echeverri was shot to death in Queens, New York. New York City detectives who arrived at the scene of the murder found a small telephone book containing various names and telephone numbers on Echeverri's body. Among the dozens of names in the book was "Luis Pica", followed by the present and former telephone numbers registered to defendant Garcia-Duarte's common-law wife.
Detectives who searched Echeverri's apartment in Elizabeth, New Jersey the next day found approximately one pound of cocaine, $40,000 in cash, and three notebooks. Special agent William Mockler of the federal Drug Enforcement Administration (DEA) testified as an expert that the entries in one of the notebooks reflected narcotics transactions with various individuals. Each page of this "customer book" had a name at the top and contained a series of dates and corresponding figures which represented quantities of narcotics sold and prices paid. The very first page bore the name "DN LOUIS P." and appeared to record sales of 125 grams of cocaine for $7,250 on August 26, 250 grams for $14,500 on September 6, and 125 grams for $7,250 on November 19.
Almost one month after the search of Echeverri's apartment, on June 7, 1982, a group of New York City detectives and DEA agents proceeded to Garcia-Duarte's Manhattan apartment, rang the bell, and knocked on the door. A woman's voice asked who was there, and the officers identified themselves as the police. After a series of delays which the government claims amounted to approximately 15 or 20 minutes, they were allowed to enter.
Inside the apartment the officers found Garcia-Duarte, his wife, and a young boy. They immediately began questioning Garcia-Duarte and his wife, primarily in English, but with Detective Pena, who was fluent in Spanish, translating when necessary. Garcia-Duarte acknowledged that the telephone numbers listed for "Luis Pica" in Echeverri's telephone book had been his and his wife's for some time, but he denied knowing Echeverri. Both he and his wife said that they were unable to identify photographs of Echeverri and his wife. However, they did identify another woman in one of the photographs found in Echeverri's apartment as a "Marie or Mariella", whom they had met several years earlier and had seen on several occasions since.
After explaining the circumstances surrounding Echeverri's murder, the officers asked Garcia-Duarte if he had any drugs or weapons in the apartment. When he claimed he did not, Detective Pena asked in Spanish if the officers could search the apartment. Garcia-Duarte replied, "Go right ahead, I have nothing to hide."
DEA agent Vallely, the only searching officer to appear as a witness, testified that he personally found evidence of cocaine in virtually every room of Garcia-Duarte's apartment. In a waste paper basket in the kitchen, he found three dripping wet, cold plastic bags containing water and white residue later determined to be cocaine. In the bathroom, he found a clear plastic bag, also containing what was later determined to be cocaine residue, wedged inside the drain in the sink. In a closet in the master bedroom area, he discovered a small clear plastic bag containing.23 gram of cocaine in a bathrobe pocket. In the living room, he found a small scale, together with a plastic calendar card covered with white residue, a small black sifter, and a metal cup. Finally, Vallely testified that he saw DEA agent Crawford seize a magazine from the top of the dining room table. This turned out to be a 1975 issue of "New York State Vacationland" with a label addressed to "M. Echeverri, Box 116, Elizabeth, New Jersey 07207".
Following his arrest, Garcia-Duarte admitted to the officers and again, the following day, to an Assistant United States Attorney, that the small quantity of cocaine found in the bathrobe was his and had been there for a long time. However, he denied knowledge of any of the other cocaine allegedly found in his apartment. He speculated that the ...