Defendants German Salcedo and Vin-cente Carhuapoma appeal from judgments of conviction entered against them in the United States District Court for the Southern District of New York, Robert J. Ward, Judge, arising from their participation in narcotics trafficking in New York City.
Among their argumеnts, defendants claim a misuse of the grand jury process by the office of the United States Attorney for the Southern District of New York. Although this issue is troubling, we affirm the convictions because defendants have suffered no prejudice from the prosecutor’s conduct before the grаnd jury, and because their other claims lack merit.
BACKGROUND
On July 14, 1988, German Salcedo and Victor Brito, a codefendant, were delivering mattresses in a truck in New York City. In the course of their deliveries, they parked the truck, and Brito entered a restaurant where he negotiated a deal to sell four kilograms of cocaine to two informants, Miguel and Eddie. Later that afternoon, Salcedo and Brito again parked the truck at a pre-arranged location in the Bronx, and Brito confirmed with Miguel that the proposed sale would be completed аt Brito’s nearby apartment. Miguel refused to go to Brito’s apartment until he had seen the cocaine, but he agreed to wait in the lobby of the building for Brito to bring it down. Salcedo had already gone up to the apartment, and Brito followed him shortly thereafter.
A few minutes later, accompanied by Vincente Carhuapoma who was carrying a paper bag, Brito returned to the lobby, took the bag from Carhuapoma, and gave it to Miguel to inspect. It contained only one kilogram of cocaine, and Carhuapoma explainеd that the rest of it was upstairs in Brito’s apartment. Miguel told Brito to get the money for the deal from Eddie who was waiting outside. Once outside, Brito was arrested. Carhuapoma was then arrested in the lobby while holding the bag. Drug enforcement agents next proceeded to Brito’s aрartment where they arrested Salcedo and found a triple-beam scale and a gun. The agents retrieved a shopping bag containing three kilograms of cocaine from the pavement beneath an open window in Brito’s apartment.
Brito, Salcedo, and Carhuapoma were charged with conspiracy to distribute cocaine, 21 U.S.C. § 846, and possessing with intent to distribute four kilograms of cocaine, 21 U.S.C. §§ 841(a)(1), (b)(1)(B). Bri-to was also charged with using and possessing a firearm during a drug trafficking offense, 18 U.S.C. § 924(c); he pled guilty to the conspiracy and the weapons charges, was sentenced, and does not appeal here.
After trial, Salcedo was convicted on both charges and sentenced to seven years in prison with four years of supervised release. Carhuapoma was convicted only of possеssion and sentenced to five years in prison with four years of supervised release. Both appeal.
Salcedo and Carhuapoma seek reversal and dismissal of their indictments because of prosecutorial misconduct before the grand jury. In particular, Carhuapoma claims that the prosecutor misused the grand jury process first by obtaining the indictments solely on the basis of hearsay and later by preventing him from gaining access to grand jury material. Salcedo argues in addition that the prosecutor misused the grand jury by presenting testimony solely for the purpose of “locking in” a witness’s testimony. Salcedo also contends that the evidence against him was insufficient for conviction, that the trial court erred in charging the jury on conscious avoidance, and that other errors were committed.
A. Misuse of the Grand Jury
Historically, the grand jury has “serve[d] the invaluable function in our society of standing between the accuser and the accused”.
Wood v. Georgia,
Even so, pursuant to our supervisory power, we may dismiss an indictment for prosecutorial misconduct if the grand jury was misled or misinformed,
United States v. Hogan,
Carhuapoma asks us to exercise our supervisory power, reverse his conviction, and dismiss his indictment because of pros-ecutorial misuse of the grand jury, claiming that his indictment was merely one of a series of indictments obtained through the government’s policy of using a single witness to testify in grand jury proceedings. In particular, he asserts that his indictment was based solely on hearsay testimony given by an agent having no personal knowledge of the alleged acts; that the grand jury was never clearly informed that the аgent’s testimony was hearsay; and that the prosecutor, herself, was the “true” witness because the agent’s testimony was presented through leading questions. He contends that the single-witness policy undermines the grand jury process, prevents the grand jurors from evaluating the credibility of witnesses and the strength of evidence, and shields the government’s trial witnesses from cross examination based on their grand jury testimony.
The government admits to a policy of using a single witness before the grand jury in narcotics cases where the defendant is already under arrest. According to the government, the practice is simply an efficient and effective means of obtaining indictments within the required ten days of arrest, particularly because the Narcotics Special Grand Jury meets only twice a week. Thus, the government explains, the practice of presenting evidence through a single witness, usually the case agent, pro
As to Carhuapoma in particular, the government admits that it presented only hearsay evidence to the grand jury. It explains that the сase agent was unavailable to testify at the scheduled time, so another agent, who had worked on the case and had some direct knowledge of Salce-do’s participation, was used; that the grand jurors were warned, directly prior to the agent’s testimony about Carhuapoma, that his testimony was hearsay; that the agent never represented to the grand jury that he had personal knowledge of Carhua-poma’s conduct; and that the prosecutor reminded the grand jury that it could bring in eye witnesses if it so desired.
As we see it, there is a great deal to criticize in the government’s handling of this grand jury proceeding. The single-witness policy routinely relies on hearsay, producing “ ‘evidence’ which appears smooth, well integrated and consistent”, making even weak cases appear strong.
United States v. Arcuri,
Moreover, contrary to the government’s own standard practice, it was not the case agent who testified before this grand jury. The agent who did testify had little personal knowledge of the actions of any of the defendants; no good reason was offered for the case agent’s absence; and the case agent could not recall why he did not testify. In addition, the prosecutor presented many of the details of the case in the form of leading questions, while thе testifying agent merely confirmed those details by answering “yes”. Furthermore, prior to presenting the evidence against Carhuapo-ma, the prosecutor gave questionable instructions to the grand jury: she phrased the hearsay warning about the agent’s testimony in the past tense, implying that the forthcoming testimony would not be hearsay; she illustrated the concept of hearsay with the agent’s prior testimony, inadvertently vouching for the prior testimony; and she followed a reminder about the grand jury’s right to call eye witnesses with a disclaimer that hearsay evidеnce was “perfectly appropriate”, thus diminishing the importance of direct evidence.
We look with disfavor on all of these shortcomings. “We have previously condemned the casual attitude with respect to the presentation of evidence to а grand jury manifested by the decision * * * to rely on testimony of the law enforcement officer who knew least, rather than subject the other officers * * * to some minor inconvenience.”
Estepa,
Such an ill-planned presentation raises concerns that the United States Attorney’s Office may again be leaning toward a casual, “anything goes” attitude with respect to grand jury proceedings. Finally, although the single-witness policy provides an efficient means for obtаining indictments in our overcrowded criminal justice system, we must be wary that we do not exalt expedience at the expense of fundamental fairness nor abandon the virtues of the grand jury process to the unreviewed control of the prosecutor.
Despite these failings, however, we cannot conclude at this time either that the single-witness policy constitutes such “systematic and pervasive” prosecutorial misconduct as would undermine fundamental fairness, or that the rights of either defendant were violated before the grand jury. The testifying agent did establish that his testimony about Carhuapoma and Salcedo
B. Salcedo’s Other Claims
1. Sufficiency of the evidence.
Salcedo’s claim that the evidence was insufficient to support his conviction on either the conspiracy charge or the. substantive count is easily dispatched.
Miguel testified that Salcedo was рresent when Brito gave Eddie a sample of the cocaine; that during their meeting, Brito introduced Salcedo as his partner and discussed the details of the transaction in Salcedo’s presence; that Brito sent Salcedo to his apartment to get the cocaine; and that Salcedo said he wanted “no guns, no problems” during the transaction. Moreover, Brito’s wife testified that Salcedo was in the apartment when the cocaine was delivered and that he told her to throw it out the window when the agents arrived at the door. From this evidence, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia,
2. “Locking in” a witness’s testimony.
Salcedo also claims that the government improperly called Brito’s wife, Lordes Cabrera, to testify before a second grand jury solely to “lock in” her testimony for trial. The government responds that she testified in relation to an on-going investigation involving unidentified coconspirators and the possibility of forfeiture of Brito’s property.
It is, of course, improper for the government to use grand jury testimony for the primary purpose of preparing another case for trial.
See United States v. Fisher,
3.The conscious avoidance charge.
Salcedo challenges the conscious avoidance charge given to the jury. A conscious avoidance charge is appropriate when the defеndant claims a lack of knowledge of the relevant acts; but the surrounding circumstances would permit a reasonable juror to conclude that the defendant should have known about them.
United States v. Mang Sun Wong,
Further, we find no error in the particular conscious avoidance charge used by the court; it tracked the “high probability” and “actual belief” language specifically approved by this court in
United States v. Feroz,
CONCLUSION
The judgments of conviction are affirmed.