Appeal from judgments of the United States District Court for the Southern District of New York after a jury trial before Judge Gerard L. Goettel, in which appellants were convicted of conspiracy to distribute and to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846 and of distributing and possessing with intent to distribute cocaine in violation of 21 U.S.C. §§ 812, 841 and 18 U.S.C. § 2. Claims of evidentiary error are rejected and the convictions are affirmed.
Van Graafeiland, Kearse, and Miner, Circuit Judges.
Luis Cruz and Rogelio Chacon appeal from judgments of conviction entered following a jury trial in the United States District Court for the Southern District of New York (Goettel, J.) stemming from their involvement in a narcotics distribution operation. Cruz's principal contention on this appeal is that the trial court erred in admitting into evidence the statement of an unindicted co-conspirator, the testimony of the arresting officer that at the time of his arrest Cruz possessed $1,234 in cash and $268 in uncanceled food stamps, and expert testimony by a Department of Agriculture agent that uncanceled food stamps could be used to purchase narcotics.*fn1 Chacon argues on appeal that the trial court erred in admitting into evidence thirteen vials containing cocaine found on Chacon at the time of his arrest. Finding that none of the arguments made by either of the defendants warrants reversal, we affirm the convictions in all respects.
Cruz and Chacon were indicted and charged with conspiring to distribute and to possess with intent to distribute heroin and cocaine, in violation of 21 U.S.C. § 846 (Count I), distributing and possessing heroin with intent to distribute it, in violation of 21 U.S.C. §§ 812, 841 and 18 U.S.C. § 2 (Count II), and distributing and possessing cocaine with intent to distribute it, in violation of 21 U.S.C. §§ 812, 841 and 18 U.S.C. § 2 (Count III).
The charges against Cruz and Chacon stemmed from their involvement in a street-level narcotics distribution operation on the morning of September 10, 1985. On that day, shortly after 10:00 a.m., Cruz arrived at the surveilled area, a block on 110th Street between Lexington Avenue and Park Avenue in Manhattan. Cruz approached Chacon on the south side of the block in front of a housing project's community center. They exchanged something and then Chacon knelt down on the porch of the community center and appeared to be counting something. Between 10:00 a.m. and 11:30 a.m., members of the New York Drug Enforcement Task Force ("Task Force") observed what appeared to be narcotics sales taking place between at least four sellers, including Chacon, and various customers. The sellers also included an individual dubbed "Captain America" because of his red, white, and blue attire. After these four sellers made several sales, they exchanged something with an individual believed to be Cruz's middleman, an unidentified, as yet unapprehended, dark-skinned male, who was wearing a short-sleeved, striped shirt. After several exchanges with the sellers, the middleman met with Cruz.
At approximately 11:00 a.m., undercover Detective Melvin Bayne, carrying $150 in pre-recorded "buy money," approached Chacon, who at the time was selling narcotics to another customer. Detective Bayne purchased from Chacon two vials of cocaine closed with blue plastic stoppers. Detective Bayne bought the cocaine with a pre-recorded twenty-dollar bill and received two five-dollar bills from Chacon as change.
Detective Bayne then inquired whether he could purchase some heroin. After Chacon began to ask some other people about obtaining some heroin, Cruz, who was standing nearby, shouted in Spanish "That man is a cop, don't give him anything." Chacon declined to sell any heroin to Detective Bayne, who then began to walk west on 110th Street, away from the community center.
After Detective Bayne crossed Park Avenue, he was overtaken by the narcotics seller known as Captain America. Captain America told Detective Bayne that he had heard that Bayne was interested in purchasing heroin and that he would see what he could do for Detective Bayne. Bayne responded that he did not understand why he had been refused heroin, as he previously had bought heroin at that location. Captain America said that Detective Bayne looked too healthy to be a heroin addict and therefore the sellers suspected that he was a police officer. Captain America explained to Detective Bayne that he was a seller for the narcotics operation on 110th Street. He further explained that the "big man" was on 110th Street that day, and that he was careful and did not take chances. After negotiating for the purchase of two glassine envelopes of heroin, Detective Bayne agreed to pay Captain America twenty-five dollars, including a five-dollar tip for Captain America, upon delivery of the heroin. Thereafter, Captain America walked to the community center, returning a few minutes later with two glassine envelopes of heroin. He gave the envelopes to Detective Bayne in exchange for twenty-five dollars, including a pre-recorded twenty-dollar bill.
At approximately 4:30 p.m., Cruz drove away from the area and was followed to Brooklyn by members of the Task Force. As soon as Cruz left 110th Street, the four sellers also left. Police officers arrested Cruz at a traffic light in Brooklyn at approximately 5:00 p.m. At the time, Cruz possessed $1,234, including the pre-recorded twenty-dollar bill with which Detective Bayne had purchased cocaine from Chacon and the pre-recorded twenty-dollar bill with which he had purchased heroin from Captain America. Cruz also possessed $268 in uncanceled food stamps. The next morning, Task Force members arrested Chacon at 110th Street and Lexington Avenue. A search of Chacon uncovered thirteen vials containing cocaine. Small pieces of yellow tape were fastened to the end of each vial.
Cruz called two witnesses who testified to various matters principally relating to Cruz's association with his step-father's grocery store in the Bronx. This testimony apparently was intended to establish that the money and food stamps, which Cruz possessed at the time of his arrest, were related to the store's operations and were not the proceeds of any illicit activity. In rebuttal, the government called Mark Spaulding, a criminal investigator in the Office of the Inspector General of the United States Department of Agriculture. Agent Spaulding testified that, in his experience, food stamps had been used to purchase narcotics on the street. Agent Spaulding testified that for food stamps to be lawfully deposited in a bank, they must be stamped with the receiving store's authorization number and be accompanied by a redemption certificate. Thus, according to Agent Spaulding testified that for food stamps to be lawfully deposited in a bank, they must be stamped with the receiving store's authorization number and be accompanied by a redemption certificate. Thus, according to Agent Spaulding, when food stamps are used to purchase narcotics, the seller typically owns or operates a grocery store authorized to accept food stamps or has contacts with such a store.
After trial, the jury returned guilty verdicts against Cruz on the conspiracy and cocaine distribution counts but acquitted him on the heroin distribution count. The jury also found Chacon guilty on the conspiracy and cocaine distribution counts.
This appeal presents essentially four evidentiary issues: viz., whether the district court erred in admitting into evidence (1) the $1,234 in cash and $268 in food stamps found in Cruz's possession at the time of arrest; (2) Agent Spaulding's expert testimony regarding the use of food stamps in narcotics trafficking; (3) Detective Bayne's testimony as to the statements made by Captain America; and (4) the thirteen vials of cocaine found in Chacon's ...