Appellants appeal from judgments of conviction in the United States District Court for the Eastern District of New York, Nickerson, Judge, entered after a jury trial, convicting them of violations of the federal narcotics laws. Affirmed in part, reversed in part.
Before: FRIENDLY, PIERCE and WINTER, Circuit Judges.
Valencia Gaviria ("Valencia") and Bedoya Lopez ("Bedoya") appeal from judgments of conviction entered on September 16, 1983, pursuant to jury verdicts in the District Court for the Eastern District of New York, Eugene H. Nickerson, Judge. Each appellant was charged in a two-count indictment with (1) conspiracy to distribute and to possess with intent to distribute a quantity of cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1)(Count One), and (2) possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count Two). Bedoya was convicted of Count One and acquitted of Count Two. Valencia was convicted of both the conspiracy count and the substantive count.
On appeal, appellants principally contend: (1) that the district court erroneously denied their motions to suppress certain evidence seized just prior to their arrest, (2) that the district court improperly denied their Rule 29 applications for judgment of acquittal on the conspiracy charge, (3) that the district court erred by permitting the government to present its rebuttal case, and (4) that the evidence was insufficient to support their convictions. Because we agree that the evidence was insufficient to support appellant Bedoya's conviction on Count One for conspiracy to possess with intent to distribute cocaine, and because the indictment charged a conspiracy only between Bedoya and Valencia, we reverse and dismiss both appellants' convictions on Count One. As to Valencia's conviction on Count Two, we conclude that the district court properly denied the motion to suppress, and that the evidence was sufficient to support the conviction; accordingly, we affirm Valencia's conviction on Count Two.
Appellants were arrested on May 4, 1983, in Queens, New York, and on May 13, 1983, the aforementioned two-count indictment was filed against them. Prior to trial, Valencia and Bedoya moved to suppress evidence seized by agents of the New York Drug Enforcement Task Force ("Task Force") during the course of searches of Bedoya's automobile and of an apartment once inhabited by Valencia. A suppression hearing was held on July 6, 1983, after which Judge Nickerson denied the suppression applications. A trial by jury followed.
A. THE SUPPRESSION HEARING
At the hearing, the government presented the testimony of two Task Force members. Paul Krajewski and Jose Luis Guzman. Their testimony, which is largely undisputed, established the following facts:
Krajewski testified that for approximately one year prior to appellants' arrest he had been engaged in an investigation of a cocaine trafficking organization that originated in Colombia, South America, and was headed by Miguel "Paco" Sepulveda. The Task Force believed that the "Sepulveda organization" consisted of, among others, Paco's wife Vicki Sepulveda, and her sister, appellant Valencia. Paco Sepulveda was indicted on federal narcotics charges in 1978, but remained a fugitive until January, 1983. After Sepulveda's arrest, the Task Force's investigation focused on possible successors to head the cocaine investigation in New York; both Valencia and Vicki Sepulveda were considered likely candidates for the position.
Krajewski testified that during the pre-arrest search for Paco Sepulveda, in February of 1982, a tip from agents in Miami, Florida, led Krajewski and other Task Force agents to 142-02 84th Drive in Queens, New York, where they hoped to find Paco. Although Paco was not there, the agents arrested two illegal aliens and found a wallet containing residency papers and a social security card; the wallet belonged to defendant Bedoya. Krajewski stated that he met Bedoya when she came to the precinct to claim the papers taken from the 84th Drive apartment; that she was interviewed at that time about her knowledge of the Sepulveda organization and her relationship with Valencia; and that she was very cooperative in identifying photographs of members of the organization.
In May of 1982, Krajewski received information from the Queens Homicide Task Force that a certain address in Queens -- apartment 3B at 31-24 35th Street -- was being used as a "stash pad" for the Sepulveda organization. According to Krajewski, over the course of the following year he and his partners conducted surveillance of the 35th Street building for hundreds of hours, but saw no one enter or leave apartment 3B. Through interviews with occupants of the building the Task Force agents learned that mail for the apartment was not picked up, that people came and went from the apartment for short periods of time late at night, and that the electricity in the apartment was not turned on. The agents could not observe whether there was activity in the apartment because the windows facing the fire escape were boarded up. In early January of 1983, just prior to Paco Sepulveda's arrest, the agents observed people moving furniture from the 35th Street apartment to an address in Bayside, Queens, the same Bayside address in which Paco Sepulveda was eventually arrested. In addition, through the use of a pen register device placed on appellant Valencia's phone, the agents learned that she had made calls to the 35th Street apartment.
Krajewski further testified that in the early part of May, 1983, he received a tip that Bedoya was renting vehicles on a weekly basis from Transnational Car Rentals, located in Queens. On May 3, 1983, Krajewski went to the car rental agency, where he observed a Hispanic male arrive in an automobile allegedly rented by Bedoya. When the male left the agency Krajewski followed him to 88-25 Corona Avenue, Queens. Later that same day, Krajewski observed Valencia arrive by car and enter the Corona Avenue residence.
The following day, May 4, 1983, Krajewski resumed surveillance on the Corona Avenue address at approximately 11:00 a.m. About one hour later, he observed Bedoya arrive, park her car and enter 88-25 Corona Avenue. She remained inside for almost thirty minutes, then she and Valencia left the house and entered Bedoya's car. Krajewski followed appellants to Baxter Street in Queens, where Bedoya parked and remained in the car, while Valencia entered an apartment building on Baxter Street. Valencia returned to the car about one half hour later. In the meantime, Detective Raymond Vallely had joined Krajewski and Vallely. The agents, however, lost sight of appellants after Bedoya made several right turns. The government contends that Bedoya "squared" the block in an effort to lose the agents.
Later that same day Krajewski and Vallely returned to the Corona Avenue address where Krajewski had first observed Bedoya that morning. They saw Bedoya's automobile parked in front of 88-25 Corona Avenue. After a short time, appellants left the building and, followed by Krajewski and Vallely, proceeded to 31-24 35th Street (the alleged stash pad), where they entered the building and remained for approximately thirty minutes. When the appellants left the building they stopped at the front door and looked to the right and to the left before proceeding down the block. Krajewski testified that, at the time, he and Detective Vallely were sitting in an unmarked car; that the appellants looked in the agents' direction and then proceeded to a nearby grocery store; that in the store Valencia stood by the window looking out in his direction; and that, minutes later, Bedoya and Valencia left the store and entered Bedoya's car. As appellants began to drive away, Krajewski and Vallely approached the car on foot, identified themselves as law enforcement officers, and asked Bedoya, the driver, to pull over. Krajewski, speaking to Bedoya in English, asked Bedoya to producer her license and registration; she complied. Krajewski then asked Bedoya where she was coming from and where she was going. Bedoya replied that she had just come from the grocery store, that prior to that she was at Corona Avenue, and that she was going to the Bronx. Krajewski then asked Bedoya and Valencia if they would accompany the agents to an apartment house on 35th Street -- no address was specified. Both women agreed to do so, left the car, and proceeded to walk in front of the officers along 35th Street. As they did so, Detective Guzman and Sergeant DiNapoli joined them. They continued walking until they reached the apartment house at 31-24 35th Street where both women stopped. When asked, appellants agreed to accompany the officers in to the building; appellants entered the building and led the way upstairs to apartment 3B. Guzman asked Valencia if she lived there, and Valencia stated that she did. Guzman then asked Valencia if the officers could enter the apartment and search for narcotics. Valencia assented, but added that anything found there was not hers. Detective Vallely asked Bedoya for her keys, which she produced, but they did not fit the lock. Valencia produced her keys and, because Vallely was unable to open the door, she aided the officer in unlocking the door.
In the apartment, the agents discovered various items of narcotics paraphernalia, including two triple beam scales, strainers with white powder residue, and a quantity of material which is used to dilute cocaine for sale. The agents also found approximately one half pound of cocaine in a locked metal box, which was opened with one of the keys that Valencia had produced, and 404 grams of cocaine in a suitcase found in one of the kitchen cabinets. Detective Guzman placed both women under arrest and informed them of their Miranda rights. Valencia asked to speak to Guzman privately and, once alone, told him that she had moved to Corona Avenue and no longer lived in the apartment, and that she had rented the apartment to a man whose name she did not know. Bedoya also asked to speak to Guzman privately and, she told Guzman that whatever was found in the apartment did not belong to her.
Appellants were taken outside and placed in a police vehicle. Bedoya inquired whether her car, which was parked away from the curb, would be safe. Krajewski requested her car keys, which Bedoya produced, and Krajewski moved the car closer to the curb. As he left the car, however, he noticed a small plastic bag containing a white powdery substance on the floor in the back of the car behind the passenger's side. He picked up the plastic bag, showed it to Vallely and the appellants, and informed Bedoya that her car would be seized. Bedoya replied: "the cocaine wasn't found on my side of the car, was it?" Subsequent analysis revealed that the bar contained seven grams of cocaine.
The agents drove to 88-25 Corona Avenue, which Valencia had stated was her current residence and she the officers consent to search her apartment. No contraband was found, but the agents seized a photo album that contained a photograph of Bedoya.
After hearing this testimony, Judge Nickerson ruled on appellants' applications to suppress the drug paraphernalia and the cocaine found in apartment 3B, at 31-24 35th Street, and the seven grams of cocaine found in Bedoya's car. The district judge found that the agents had reasonable suspicion to believe that apartment 3B was a stash pad and this, coupled with their observations of both women, amounted to reasonable suspicion to stop appellants for questioning under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). According to Judge Nickerson, appellants' subsequent statements to the agents that they had not earlier bee in in 31-24 35th Street extended the time for the Terry stop. He also found that, in any event, both Valencia and Bedoya had voluntarily consented to accompany the agents to the 35th Street building, and he noted, even in the absence of consent, appellants' previous false statements had increased ...