Reported at,. Appeals from judgments of the United States District Court for the Eastern District of New York convicting all appellants of possessing cocaine with intent to distribute and conspiring to possess with intent to distribute and one appellant of carrying a firearm during the drug trafficking crime. Judgments vacated. Charges against one defendant dismissed cases of the other defendants remanded for retrial.
Oakes, Chief Judge, Van Graafeiland and Pratt, Circuit Judges.
VAN GRAAFEILAND, Circuit Judge
Following a jury trial in the United States District Court for the Eastern District of New York, Luis Edwardo-Franco, Rocio Gallego, Jorge Lopez and Sergio Castro-Munoz were convicted of conspiracy to possess cocaine with intent to distribute and possession with intent to distribute. Castro-Munoz also was convicted of using and carrying a firearm during and in relation to a drug-related crime. For the reasons that follow, we vacate all convictions. We remand for a new trial against Edwardo-Franco, Gallego and Lopez; we direct that the charges against Castro-Munoz be dismissed.
Around the middle of July 1987, the New York Drug Task Force, a joint drug enforcement effort of federal, state and city police, began surveillance of a rented house on Birchwood Park Drive in Jericho, New York. The record does not disclose who the record tenant was or who was occupying the house at that time. Edwardo-Franco, Gallego and Castro-Munoz moved into the house on July 23, 1987 under circumstances to be discussed hereafter.
The Government introduced evidence that on August 4, 1987, Gallego brought a gray plastic bag from the house and put it in the back seat of a car, following which Gallego and Edwardo-Franco left in the car with Edwardo-Franco driving. Agents followed the car which made three stops. During the first stop, Gallego remained in the car while Edwardo-Franco made a pay station telephone call. During the second stop, Edwardo-Franco remained in the car while Gallego went in the direction of a telephone booth. While she was gone, Lopez got into the back seat of the car. When the car stopped for a third time on West 161st Street in Manhattan, Lopez left the car carrying the gray plastic bag and entered a nine-story residential building. Agents followed Lopez into the building and, after stopping him, discovered that the bag contained a kilogram of cocaine.
Other agents, who were informed by radio of Lopez's arrest, stopped and arrested Edwardo-Franco and Gallego. Agents then obtained a warrant to search the Birchwood Park Drive house. In the course of the search, they found fifteen kilograms of cocaine in a basement room closet, a number of weapons, and several incriminating notebooks and documents. They also met and arrested Castro-Munoz who was living in the house.
The four defendants, all natives of Colombia, were convicted under Count One of the indictment of conspiracy to possess with intent to distribute the fifteen kilograms of cocaine found in the basement. (21 U.S.C. § 841(b)(1)(A)(ii)(II) and 21 U.S.C. § 846). Edwardo-Franco, Gallego and Castro-Munoz were convicted under Count Two of knowingly and intentionally possessing with intent to distribute these same drugs. (21 U.S.C. § 841(b)(1)(A)(ii)(II)). All four defendants were convicted under Count Three of knowingly and intentionally possessing with intent to distribute the kilogram of cocaine taken from Lopez. (21 U.S.C. § 841(b)(1)(B)(ii)(II)). Castro-Munoz was convicted under Count Four of knowingly using and carrying firearms during and in relation to a drug trafficking crime. (18 U.S.C. § 924(c)(1) and (c)(2)).
Edwardo-Franco and Gallego appeared before the district court at the same time for sentencing. In his allocution on their behalf, their counsel argued that they presented no danger to the community and in any event would be deported to Colombia at the end of their prison term. The district court then made the following remarks about Colombians:
They don't have too much regard for Judges. They only killed 32 Chief Judges in that nation. Their regard for the judicial system, the men who run their laws, I'm glad I'm in America. That's why I pledge allegiance to the flag. My mother and father came from Italy.
Colloquy between court and counsel then continued as follows :
Your Honor, I've got these people, I have seen them numerous times. They are not of the type of people, I don't feel, would go out and rob a 7-11 or do anything illegal, truly. Most of the people that come to this country are in it as immigrants, suffer a tremendous pressure moneywise, et cetera.
THE COURT: Then they should have stayed where they were. Nobody told them to come here. I'm one of the fellows who makes United States citizens. Nobody tells them to come and get involved in cocaine. Don't give me that theory. My father came over with $3 in his pocket. He has a Federal Judge as a son.
That's nonsense. Do they have anything to say?
Speaking on her behalf, Gallego had only the following to say:
I ask for pardon for whatever error I committed. I ask, request that the sentencing be done, as for my person, not for my nationality. I have and I ask you for leniency. I spent five months and my life has been very, very harsh indeed.
The district court then sentenced both of these first time offenders to concurrent twenty-year terms on Counts One and Two and a consecutive ten-year term on Count Three for a total of thirty years imprisonment, to be followed by a lifetime special parole term of supervised release.
The Supreme Court and Courts of Appeals, including this Court, have emphasized repeatedly that not only must justice be done, it also must appear to be done. In the oft-quoted statement of Justice Frankfurter, "justice must satisfy the appearance of justice." Offutt v. United States, 348 U.S. 11, 14, 99 L. Ed. 11, 75 S. Ct. 11 (1954). See also Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S. Ct. 2194, 2204, 100 L. Ed. 2d 855 (1988); Marshall v. Jerrico, Inc., 446 U.S. 238, 242-43, 64 L. Ed. 2d 182, 100 S. Ct. 1610 (1980); Mayberry v. Pennsylvania, 400 U.S. 455, 465, 27 L. Ed. 2d 532, 91 S. Ct. 499 (1971); In re Murchison, 349 U.S. 133, 136, 99 L. Ed. 942, 75 S. Ct. 623 (1955); United States v. Diaz, 797 F.2d 99, 100 (2d Cir. 1986), cert. denied, 488 U.S. 818, 109 S. Ct. 57, 102 L. Ed. 2d 35 (1988). In recent years, these same Courts have adhered steadfastly to the proposition that race and nationality should play no adverse role in the administration of justice. See, e.g., Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986); Turner v. Murray, 476 U.S. 28, 35-38, 90 L. Ed. 2d 27, 106 S. Ct. 1683 (1986); Rose v. Clark, 478 U.S. 570, 587, 92 L. Ed. 2d 460, 106 S. Ct. 3101 (1986) (Stevens, J., concurring); Roman v. Abrams, 822 F.2d 214, 227-28 (2d Cir. 1987), cert. denied, 489 U.S. 1052, 109 S. Ct. 1311, 103 L. Ed. 2d 580 (1989).
We believe that Gallego's plaintive request that she be sentenced "as for my person, not for my nationality", mirrors what would be the objective reaction of anyone familiar with the above-quoted comments of the district court, namely that ethnic prejudice somehow had infected the judicial process in the instant case. Our conclusion in this regard should not be interpreted to mean that the district judge in fact was guilty of such prejudice; it ...