Appeal from a judgment entered in the United States District Court for the Southern District of New York after a jury trial before Honorable Edward Weinfeld, Judge, convicting defendant Alberto Ortiz-Rengifo of conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846, and of distribution and possession with intent to distribute cocaine, in violation of 21 U.S.C. § 846 (1982), and of one count of possession with intent to distribute one kilogram of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B) and 18 U.S.C. § 2. Affirmed.
Van Graafeiland, Kearse, and Mahoney, Circuit Judges.
Defendant Alberto Ortiz-Rengifo ("Ortiz") appeals from a judgment of the United States District Court for the Southern District of New York, entered after a jury trial before Edward Weinfeld, Judge, convicting him of one count of conspiracy to distribute cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B) (1982) and 18 U.S.C. § 2 (1982). Judge Weinfeld sentenced Ortiz to concurrent terms of three years' imprisonment on each count of a three-year special parole on the substantive count, and imposed a fine of $1,000 on each count and a special assessment of $50 on each count. On appeal, Ortiz contends that the district court erroneously admitted evidence concerning his alleged coconspirator Carlos Pineros despite the absence of any evidence connecting Pineros to Ortiz. We conclude that even if not proper foundation was laid during the government's case, that flaw is not a basis for reversal because Ortiz testified and supplied the missing connection. We therefore affirm the judgment of conviction.
The pertinent evidence at trial, taking in the light most favorable to the government, is summarized below.
On September 24, 1986, between 4:30 and 5:00 p.m., undercover Drug Enforcement Administration ("DEA") Special Agent Rene De La Cova and an informant drove to 71st Street and First Avenue in Manhattan to make a prearranged purchase of one kilogram of cocaine for $21,000 from an individual known to De La Cova only as "Carlos." At about 5:30 p.m., DEA Special Agent Louis Cardinali, stationed in a car on First Avenue near 71st Street, saw a beige station wagon with two occupants park on First Avenue, two cars behind his car. Thereafter, he saw Ortiz leave the vicinity of the beige station wagon, approach De La Cova's car, and begin talking with De La Cova.
Ortiz identified himself to De La Cova as "Carlos." De La Cova asked him if he had "the stuff." Ortiz, however, pointed at two agents across the street, and responded that the area was "too hot." He told De La Cova to meet him between 80th and 81st Street. De La Cova drove to the second location, where he waited in vain for Ortiz to appear. Meanwhile, other agents observed Ortiz walk to a telephone booth at 70th Street and Second Avenue. For some twenty minutes he repeatedly dialed, hung up, and appeared to be waiting for a return call. He then left the area by taxi, heading south on Second Avenue. Ortiz was arrested later that night in Queens. He had in his possession a telephone book in which he had written De La Cova's beeper number.
Meanwhile, an individual later identified as Carlos Pineros sat waiting in the parked beige station wagon or on its fender for approximately an hour. When Pineros was arrested at 6:45 p.m., he had in his possession a beeper that was not functioning properly because it needed batteries. On the front seat of the station wagon was a one-kilogram package of cocaine wrapped in a jacket. The government's theory was that Ortiz, not wanting to approach Pineros's car within sight of persons he believed to be law enforcement officials, had been trying, from the telephone booth, to reach Pineros's beeper number but had failed because the beeper's batteries were dead.
Ortiz objected to the introduction of any evidence concerning Pineros on the ground that Cardinali had been unable to identify the occupants of the station wagon when it parked on First Avenue and had not been seen Ortiz emerge from that vehicle, and hence the government had failed to show any connection between Ortiz and Pineros or between Ortiz and the cocaine. The trial court ruled that the evidence would be admitted without prejudice to a motion to strike at the end of the government's case if Pineros had not been sufficiently connected to Ortiz by that time.
At the close of the government's case, Ortiz moved, inter alia, to strike the evidence with regard to Pineros's arrest and the seizure of the cocaine, renewing his argument that there had been no evidence connecting either Pineros or the cocaine to Ortiz. The district court denied the motion, ruling that there was sufficient evidence under the standard set by United States v. Geaney, 417 F.2d 1116, 1120 (1969), cert. denied, 397 U.S. 1028, 90 S. Ct. 1276, 25 L. Ed. 2d 539 (1970), of a conspiracy and Ortiz's membership in it to allow the evidence concerning Pineros and the cocaine to be submitted to the jury:
Ortiz testified in his own defense. He identified Pineros as his brother-in-law and stated that on the afternoon in question he had ridden with Pineros in Pineros's station wagon to First Avenue and 71st Street, planning only to meet his wife in Manhattan that evening. Ortiz testified that Pineros had planned to meet a man named Guillermo Pineda at First Avenue and 71st Street. He stated that Pineros parked on First Avenue near 71st Street and asked him to tell Pineda they would meet at 81st Street instead. Ortiz testified that ...