Appeal from convictions for conspiracy to manufacture and possess cocaine and possession with intent to distribute cocaine in the United States District Court for the Eastern District of New York (Leonard D. Wexler, Judge) after a jury trial. Affirmed as to Caraballo. Reversed as to Matias because of the failure to balance a jury instruction on the defendant's interest in testifying falsely.
Winter and Mahoney, Circuit Judges, and Stewart,*fn* District Judge.
Miguel Matias, Sr. and Jose Caraballo were convicted after a jury trial before Judge Wexler of conspiracy to manufacture and to possess cocaine hydrochloride in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1) (1982 & Supp. IV 1986), and possession with intent to distribute cocaine hydrochloride in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1) and 18 U.S.C. § 2 (1982). On appeal, they challenge the issuance and execution of a search warrant, the trial court's rulings on the admission and exclusion of co-defendants' statements and jury instructions on conscious avoidance and a defendant's motive to testify falsely.
Because we find that only the claim concerning the jury charge on a defendant's motive to testify falsely has merit, we affirm as to the nontestifying defendant, Caraballo, and reverse and remand as to Matias.
After conducting surveillance of a house and barn in Central Islip between October 25 and October 29, 1985, Drug Enforcement Administration ("DEA") agents obtained a telephonic search warrant for those premises from a magistrate. When the DEA agents executed the warrant on November 1, they found a complete cocaine processing laboratory and about ten kilograms of cocaine in the barn. Various narcotics-related paraphernalia, a key to the barn, receipts for building materials, ownership records for the premises and some photographs were taken from the house.
White at the house, agents arrested Miguel Matias, Jr. and Frank Matias, the sons of defendant Miguel Matias, Sr., the record owner of the premises. Miguel Matias, Sr. and Caraballo were arrested later the same day. the four arrestees and Caraballo's employer, Luis Garcia, were charged in the two-count superseding indictment with conspiracy to manufacture and possess cocaine and possession with intent to distribute cocaine.
Garcia pled guilty, and the four remaining defendants were tried before Judge Wexler and a jury. After Judge Wexler dismissed the charges against Miguel Matias, Jr. and Frank Matias on sufficiency grounds, the jury convicted Jose Caraballo and Miguel Matias, Sr. on both counts. Judge Wexler sentenced each to concurrent terms of six years for each count and a $100 special assessment, to be followed by five years special parole for the possession count.
The evidence against Matias, Sr. showed that he and his family were longtime friends of Luis Garcia, who was also their commercial tenant in Brooklyn. When Garcia was arrested on drug charges in 1984, the Matiases pledged two of their houses to secure his bail, Matias was the record owner of the land upon which the barn housing the cocaine laboratory had been recently built. He and his wife testified, however, that this land had been sold to Garcia. During the construction of the barn, Matias, Sr. had purchased the building materials, including the plywood used to make a wall concealing the drug laboratory. He also helped unload ether barrels delivered by Caraballo.
Caraballo was Luis Garcia's employee. On October 25, 1985, Caraballo went to a chemical warehouse in Westchester to pick up fifty-five-gallon drums of ether, a solvent used to manufacture cocaine. He then drove from the warehouse to Luis Garcia's home in Westbury, and from there to the barn in Islip. During the trip, he stopped and acted furtively as though he were trying to elude anyone who might be following him. The next day, Caraballo drove Matias, Sr. to a lumberyard where the latter purchased the plywood used to make the wall concealing the drug manufacturing laboratory. On the afternoon of October 29, Caraballo left the barn and drove to a Kentucky Fried Chicken restaurant to get lunch for several persons working at the barn. A heavy smell of ether emanated from the barn, and after lunch Caraballo drove to a drugstore and bought a solution labeled "for red and irritated eyes." Caraballo's eyes looked red, irritated and watery, a condition caused by exposure to ether. Later in the afternoon, Caraballo drove to the town dump and disposed of some garbage. Included were numerous bottles of Pine Sol, an empty bottle of inositol with a heavy smell of ether inside, and thirteen $100 money wrappers. Inositol is commonly used to "cut" cocaine, and Pine Sol, a deodorizer, was later found in the cocaine laboratory.
A. Search and Seizure Claims*fn1
In applying for the telephonic warrant, the Assistant United States Attorney recited to the magistrate facts relayed by DEA Agent Daniel McCarthy. McCarthy was on the line and confirmed at the close of the AUSA's presentation that those facts were "truthful to the best of [his] knowledge and belief." However, ...