Petition — Roche v. United States

Supreme Court of the United States,

- CLERK

October Term—1978 x |

No. WQ= 1685

ANGELO ROCHE,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT.

O’ ROURKE, McGOVERN & DEGEN

Attorneys for Petitioner

233 Broadway

New York, N.¢Y. 10007

(212) 227-4830

RONALD D. DEGEN

Of Counsel!

Dick Bailes Service, Inc.. P.O. Box X, Staten Island, NY 10302

os

~Tel.: (212) 447-$358

TABLE OF CONTENTS

Page

Opinion EE a OPO Re Bee Br mes ae 1

PRE Cece c be cedieciciccdcdvccictdbedsuctes 2

i ies cee cid etdennemeneuns 2

BOURSES GE GRP GO oo cc cect ccccsensccdbdeneten 2

Reasons for Allowing the Writ .................... 4

GED co bnescdcddvcccdccccpecededdticovcecs 14

Appendix A—Opinion of the United States Court of

Appeals for the Second Circuit ................005- la

REE TPS 0c hc cs cbatbeticcicddocss 6a

TABLE OF AUTHORITIES

Cases Page

Berger v. United States, 295 U.S. 78, [1935] ......... 10

Kotteakos v. United States, 328 U.S. 750 [1946] ...... 4

United States v. Agueci, 310 F.2d 817 [2d Cir. 1962],

GaFE. GE. BEE ale BO COPE 6 6 ohh ch ececccdcccvees 7

United States v. Benter, 457 F.2d 1174, 1176 [2d Cir.]

mrt. Game, GE Es SEB TIGNEE obo ec ibicdcccccséens er

United States v. Bertolotti, 529 F.2d 149 [2d Cir. 1975] 8

United States v. Branker, 395 F.2d 881, [2d Cir. 1968]

United States v. Brawer, 482 F.2d 117, 134 [2d Cir.],

on remand 367 F. Supp. 156 [S.D.N.Y. 1973], aff’d

496 F.2d 703, cert. den. 419 U.S. 1051 [1974] ........

United States v. Burse, 531 F.2d 1151, 1154-1155 [2d

Be Sh danddcecadanesebiecvsnsedccubeuuenes

United States v. Bynum, 485 F.2d 490, [2d Cir. 1973],

vacated and remanded on other grounds, 417 U.S. 903

DE ccheduudddbunkuanesekseteneendesenssedunte

United States v. Cirami, 510 F.2d 69, 74 (2d Cir.], cert.

ee I cnc cdnnckcascddecescdenus

United States v. Farnkoff, 535 F.2d 661, 668 [ist Cir.

STE, udbkdnnnenesoednesed eueedieibuededcbewanes

United States v. Grunberger, 431 F.2d 1062, 1068 [2d

Pe diaccuchbaenaccsuncescobieesiedhas bane

United States v. Kiame, 258 F.2d 924 [2d Cir. 1958] . .

United States v. Lam Lek Chong, 544 F.2d 58, [2d Cir.

SPUN 60006006 <biubkpcheddadinecenesssacnassas

United States v. LaSorsa, 480 F.2d 522, 526 [2d Cir.},

Gare, Game, GO4 UB. GES TIBIAE oo cc ccccccccccccceses

United States v. Magnano, 543 F.2d 431, 433 [2d Cir.

SOU dtatecdadndceendnedsedddusvelscueesesenne

United States v. Marquez, 424 F.2d 236, 240 [2d Cir.],

cert. den. 400 U.S. 828 [1970] ................2000-

10

10

13

10

12

10

7 ow ome:

iii

United States v. Miley, 513 F.2d 1191, 1207 [2d Cir.],

cert. den. 423 U.S. 842 [1975] ......... cece cence eens

United States v. Moten, 564 F.2d 620, [2d Cir. 1977] ..

United States v. Ortega-Alvarez, 506 F.2d 455, 457 [2d

Cir. 1974], cert. den. 421 U.S. 910 [1975] ...........

United States v. Puco, 436 F.2d 761, 762 [2d Cir.],

rev’d and remanded 453 F.2d 539 [1971], aff’d 476

F.2d 1099, cert. den. 414 U.S. 844 [1973] ...........

United States v. Sperling, 506 F.2d 1323, 1340-1341

[2d Cir. 1974], cert. den. 420 U.S. 962 [1974], 421 U.S.

DED FISTS cc cccccccccccccesscvcncesccsceeeseces

United States v. Taylor, 562 F.2d 1345, 1352 [2d Cir.

BOT TE cccccceccesevccscooseccesesccececceeseces

United States v. Tramunti, 513 F.2d 1087, 1118-1119

[2d Cir.], cert. den. 423 U.S. 832 [1975] ............

STATUTES

Bl U.S.C. GEIS 2c cccccccccccccccccccvccccccscccs

21 U.S.C. GRAIG) 2... ccccccccccccccccccccees

21 U.S.C. GRCIQOMIMA) ...ccccccccccccccccccees

BE Uhre GOOD cc ccccscccccccccccccccvccccescece

10

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No.

ANGELO ROCHE,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF |

APPEALS FOR THE SECOND CIRCUIT.

Angelo Roche petitions for a writ of certiorari to

review a judgment of the United States Court of Appeals

for the Second Circuit, which affirmed a judgment of con-

viction of the United States District Court for the

Southern District of New York.

OPINION BELOW

The opinions and rulings of the United States District

Court for the Southern District of New York are

unreported.

The Court of Appeals affirmed the judgment of con-

viction in a Per Curiam opinion on April 28, 1977 (see Ap-

pendix A).

JURISDICTION

The judgment of the Court of Appeals was dated and

entered on April 28, 1978. Jurisdiction is conferred upon

this Court by 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether the indictment charged a single con-

spiracy, while the proof showed a series of smaller ones,

resulting in a material variance prejudicial to petitioner.

2. Whether the inherent unfairness of the mass indict-

ment and resulting subjection of petitioner to

“voluminous testimony relating to unconnected crimes in

which he took no part’’ prejudiced petitioner.

3. Whether the prosecutor improperly vouched for

the credibility of the Government’s witnesses. |

4. Whether the submission of a copy of the indict-

ment to each juror to take into the jury room during

deliberations prejudiced petitioner.

STATEMENT OF THE CASE

Petitioner was tried before Honorable Vincent L.

Broderick and a jury and convicted of a violation of 21

U.S.C. §846 and 21 U.S.C. §§812, 841(a)(1) and

841(b)(1)(A) (two counts). On September 23, 1977 he was

sentenced to concurrent terms of imprisonment of fifteen

years on each count and placed on Special Parole for a

period of fifteen years to commence upon expiration of his

confinement.

The indictment charged a single conspiracy covering

the period from October 1, 1973 to November 6, 1975. It

named twenty-four defendants and sixteen co-

conspirators. The first count accused all of the defendants

of conspiracy to violate the federal narcotics laws. It listed

a POT BON te a Ne Aled. ia witha, Pid Cae aie

se oe

rte a en ee

ee eee ee ee ee

forty-four overt acts in which each defendant is mentioned

at least one time. Petitioner is the subject of acts five and

twelve. Twenty-eight additional counts charged all but

three of the defendants with substantive narcotics offenses

Appendix B).

ie The trial aaa six weeks and consumed over 3700

pages of transcript. At its conclusion petitioner and the

eight co-defendants jointly tried with him were convicted

charges against them.

" gee pe eleenes and exhibits the Government

showed that various people brought heroin from Califor-

nia to New York for distribution and sold it there. Addi-

tional testimony concerned the arrests and searches of

some defendants and co-conspirators, undercover pur-

chases of narcotics and the recovery of twenty kilos in

California over one year -% petitioner’s last alleged pur-

in New York.

wag oh te dich mentioned petitioner and only one of

them described any illegal activity. Out of the hundreds of

meetings and transactions that took place over a twc-year

period, one of the distributors—Raymond Rivera-

Rodriguez—testified that he sold petitioner one-half of a

Kilogram of heroin four times between August and Oc-

tober, 1974. The testimony covered parts of fifteen pages.

A Drug Enforcement Agent testified that he arrested peti-

tioner in Puerto Rico on March 2, 1977 and recognized a

car parked in front of the residence as similar to a car

driver by co-defendant Jose Velasquez in late 1975 or ear-

ly 1976. A search of the vehicle produced papers belonging

to Velasquez. Another Drug Enforcement Agent testified

that petitioner was present during a conversation concern-

ing the purchase of heroin, although he did not speak or in

any way partake therein, that the agent and Velasquez had

in a bar on June 3, 1974.

Eight defense witnesses, including two co-defendants,

testified. Only one defense witness and two exhibits con-

cerned petitioner. In order to explain the presence of a car

outside his home in Puerto Rico and the presence of some

papers in it referring to co-defendant Jose Velasquez, peti-

tioner called Jaime Velasquez to the witness stand. To

prove his presence in Puerto Rico on August 12, 1974,

petitioner produced a bill of sale for a house he had pur-

chased there on that date.

REASONS FOR ALLOWING TFE WRIT

1. The Multiple Conspiracy Question.

The proof at trial revealed several independent and

separate conspiracies, rather than the single conspiracy

averred in the indictment. Where such a variance results in

prejudice to the accused—the claim set forth herein by

petitioner—a reversal of the conviction is mandated (Kot-

teakos v. United States, 328 U.S. 750 [1946]).

Viewing the evidence in the light most favorable to

the Government, the first conspiracy began in December,

1973 when Benito Cruz financed Fernando Gallardo and

ended when they split up in January, 1974. In March of

that year Cruz again turned to Gallardo for his source of

drugs and became part of his operation. This second con-

spiracy, too, was short-lived and ended by June, 1974, by

which time Cruz’ drug activities no longer involved Gallar-

do.

Chronologically, the third and first of two larger con-

spiracies commenced in August 1974 when Raymond

Rivera-Rodriguez made his first trip to California for Fer-

nando Gallardo. From that time until November, 1974 he

traveled to California five times and brought back and

distributed a total of eighty-five packs (nine-ounce

packages of heroin). Petitioner was one of his purchasers.

Rivera’s partner and major assistant in disposing of th

narcotics was Jose Luis Iglesias, who is otherwise unmen-

tioned in the trial testimony.

ects tthe eile lcs Sty hel RP NL RE PETRA ME

y eee ee Se

Se dated me

Rivera’s involvement with Fernando Gallardo con-

tinued during the spring of 1975. Domingo Zayas, Martha

Machado, Carlos Gallardo and Pumarejo supplied him

i which he '

sas } ny sab a , although short in duration,

was major in scope and centered about the twelve-day

distribution of seventeen kilos of heroin for $850,000 by

Cruz. It cannot be seriously contended that Cruz replaced

Rivera, for they had none of the same customers. Only

Raymond Rossy both bought drugs from Cruz and

been a Gallardo, although not 4 Rivera,

customer. Rossy, in turn, sold to people otherwise uncon-

nected with Cruz or Rivera.

These four conspiracies are the chain conspiracy type.

A fifth wheel conspiracy can be carved from the testimony

of Rivera which shows him and Iglesias to be New York

distributors and petitioner, as a customer, the end of one

and Juan Roman made five, three and seven undercover

purchases of narcotics, respectively; numerous search war-

rants and arrests of the defendants and conspirators

resulted in the seizure of large amounts of drugs and cash;

and the arrest of the California connection in November,

1975 included a seizure of twenty kilos of heroin. Final'y,

Raymond Valentine testified about his drug purchases, |

cluding six transactions in August, 1975 from in-

termediaries of Fernando Gallardo.

The basis for finding at least four separate con-

spiracies consists of the lack of evidence to show that

Roche was aware of any of the activities of the other con-

spiracies; the different time periods invoived; and the in-

consistent identities of the vast jority of -

ticipants in the respective saentiielin The pB E owe

the top among the conspiracies of an often common

ping in California and the influence of Fernando Gallar-

pets ora justify 4 single indictment of the twenty-four

~~ ts naming sixteen co-conspirators (United States

. ing, 506 F.2d 1323, 1340-1341 [2d Cir. 1974], cert.

den. 420 U.S. 962 [1974], 421 U.S. 949 [1975]).

__At the close of the Government’s case petitioner’s

trial attorney preserved the multiple conspiracy issue by

moving to dismiss the indictment on that ground. The

District Cour denied the application )

© courts have often observed that i

drugs ‘the suppliers know that the ero ton a

with their sale to the middlemen, and the distributors

know from the vast amounts purchased and its ready

availability that their seller has a source of supply’’

(United States v. Moten, 564 F.2d 620, 624-625 [2d Cit

1977]; see United States v. Taylor, $62 F.2d 1348, 1382 [2d

7 . 1977); United States v. Lam Lek Chong, 544 F.2d 58

65-66 [2d Cir. 1976]; United States v. Magnano, $43 F.2d

’ . ~434 [2d Cir. 1976]; United States y. Ortega-

yo 506 F.2d 455, 457 [2d Cir. 1974], cert. den. 421

S. 910 (1975); United States v. Bynum, 485 F.2d 490

495-496 [2d Cir. 1973], vacated and remanded on other

— 417 U.S. 903 [1974]). While it cannot be denied

t 4 purchaser of one-half kilogram of heroin on four

occasions must have some idea that his supplier’s business

extends beyond him, it cannot be presumed that he envi-

sions it to extend to the proportions of the **single’’ con-

— alleged here. Petitioner was named in two of forty-

our overt acts and two of twenty-eight substantive

counts.* Of the twenty-three co-defendants and sixteen

“ Ivert acts $ and 12 accused petitioner i coun

of receiving heroin and

and 8 accused him of possessing it with the intent to distribute the sane

i i ts ee —

et a Ny " he — es

ae

co-conspirators, only defendant Velasquez and co-

conspirator Rivera are linked to petitioner. Benito Cruz, a

chief distributor, never met him. None of the other

cooperating witnesses mentioned him.

The separate trial of the charges against petitioner

and those persons connected with the Rivera conspiracy

would not have subjected the Government to substantially

more work or a greater number of days on trial. The main

witnesses Benito Cruz and Raymond Rivera-

Rodriguez—were generally not needed to testify against

the same defendants. Each co-conspirator avoided pro-

secution by testifying against some of his buyers. Ironical-

ly, none of their suppliers were on trial. The defendants on

trial implicated by Rivera were Zayas, Machado, Nunez-

Ramos, Rivera-Santiago, Velasquez, Morales and peti-

tioner. Cruz named Machado, F. Rodriguez and A.

Rodriguez as his confederates in the drug business.

Of course, establishment of a variance “‘does not

automatically require reversal’ (United States v. Miley,

$13 F.2d 1191, 1207 [2d Cir.], cert. den. 423 U.S. 842

[1975]). The test ‘‘is whether the variance affects substan-

tial rights’ (United States v. Agueci, 310 F.2d 817, 827 [2d

Cir. 1962], cert. den. 372 U.S. 959 [1963]). For the reasons

advanced under reason 2, infra, petitioner submits that the

variance mandates reversal.

2. The Mass Indictment Question.

A massive trial involving multiple defendants and

lasting many weeks makes it ‘‘virtually impossible to ex-

pect the jury to recognize the limitations of evidence to

certain defendants” in United States v. Moten (supra at

626). That case involved a 9500-page record. However,

twelve of the thirteen appellants in Moten were

distributors involved in the conspiracy at least for

“substantial periods of years’’ (id. at 625).

Here, petitioner’s activities were limited in number

and terminated in less than three months. He was named

in three of twenty-nine counts, two of forty-four overt acts

and linked to but one defendant and one co-conspirator.

During the six-week trial, day after day, the jury deciding

his fate heard ‘‘dozens of incidents of criminal miscon-

duct’’ not involving him (United States v. Branker, 395

F.2d 881, 888 [2d Cir. 1968], cert. den. 393 U.S. 1029

[1969]; see United States v. Bertolotti, 529 F.2d 149, 157

(2d Cir. 1975]). The jury saw huge amounts of drugs and

piles of cash not even remotely connected to petitioner. As

the record reveals, his attorney had little to combat and

participated sparingly at trial, because most of the pro-

ceedings had nothing to do with him. If the evidence com-

piled against petitioner during the six-week trial were

sifted from the 3700-page transcript, it could easily have

been presented in less than one day. Instead, petitioner

had to sit through and get swallowed up in testimony con-

cerning hundreds of drug transactions and related ac-

tivities over a two-year period, not to mention various

drug business conducted by some co-defendants at trial,

notably Velasquez and Fabian Rodriguez, prior to the

conspiracy.

Unlike the situation in United States v. Miley (supra

at 1209), the trial was six weeks, rather than five days, and

nine out of twenty-four defendants and sixteen co-

conspirators, instead of five out of nine persons indicted,

were tried.

Moreover, no outward sign that the jury was able to

differentiate among the defendants is found in the ver-

dicts. All nine defendants were convicted of all charges

against them (see United States v. Moten, supra at 627).

The jury note requesting the testimony about the finding

of heroin upon seven of the defendants on trial at the time

of their arrests—a concededly ficticious event—reflects

general confusion and the prejudicial spillover effect of

the joint trial.

Also, in ec “trast to the Moten case (supra at 627)

a a

where none of the appellants testified in his own behalf,

counsel for the various defendants did not provide a coor-

dinated defense. For example, Zayas testified and denied

making the heroin sales charged; Carlos Santiago testified

and called two witnesses to assert an alibi defense; Velas-

quez and petitioner presented alibi defenses without taking

the witness stand; and Anthony Rodriguez called upon his

brother to show that he was a drug addict and incapable of

forming the specific intent required by the relevant

statutes. The antagonistic nature of these defenses

becomes clear when it is considered that Rodriguez, in ef-

fect, conceded his involvement with drugs and, thereby,

enhanced the credibility of the Government’s witnesses. In

addition, the jury’s rejection of any of the other defenses

advanced could easily have led to a dismissal of the co-

defendants’ claims as part and parcel of the same attack

upon Raymond Rivera-Rodriguez—the chief witness.

In sum, petitioner was categorized as a middleman in

the drug business whose brief involvement with a

distributor-courier was buried in an avalanche of damag-

ing, unrelated testimony and exhibits of the drug activities

of other people.

This case gives the Court the opportunity to set

guidelines as to the permissible limits of the scope of an in-

dictment and a conspiracy. Increasingly, the Government

attempts to try as many people as possible together

without regard to their actual connection with each other

and with resulting prejudice to those defendants brought

to trial.

3. The Prosecutorial Misconduct Question.

It is improper for the prosecutor to inject himself into

the proceedings and thus become an unsworn witness. He

cannot suggest that he possesses evidence or knowledge

that a defendant is guilty or otherwise put his own integri-

10

ty in issue (Berger v. United States, 295 U.S. 78, 88-89

[1935]; United States v. Farnkoff, 535 F. 2d 661, 668 [1st

Cir. 1976]; United States v. Burse, 531 F.2d 1151,

1154-1155 [2d Cir. 1976]; United States v. Puco, 436 F.2d

761, 762 [2d Cir.], rev’d and remanded 453 F.2d 539

[1971], aff'd 476 F.2d 1099, cert. den. 414 U.S. 844

[1973]). In the same vein, it is improper ‘‘to put the

prestige of the United States Attorney’s Office behind the

Government’s case’’ (United States v. Brawer, 482 F.2d

117, 134 [2d Cir.], on remand 367 F. Supp. 156 [S.D.N.Y.

1973], aff’d 496 F.2d 703, cert. den. 419 U.S. 1051 [1974];

United States v. LaSorsa, 480 F.2d 522, 526 (2d Cir], cert.

den. 414 U.S. 855 [1973]; United States v. Benter, 457

F.2d 1174, 1176 [2d Cir.], cert. den. 409 U.S. 842 [1972]).

In the case at bar the prosecutor commented in his

rebuttal summation as follows:

“But perhaps more fundamental to the charge that the

government in this case has put the suggestion into the

government’s witnesses whom they should testify against,

that somehow an agent of the federal government has

decided that he will try and obtair: the conviction of inno-

cent people by putting the names of innocent people into

the mouths of government witnesses, if you think that I, if

you think that Mr. Ziegler or any other federal agent

would jeopardize his or her career beyond a reasonable

doubt to convict these people by doing such a thing, then

take about 30 seconds in your deliberations; if you think

that is what happened here, come back in 30 seconds and

acquit every one of them; if that is what this case is about

and you think that is what this case is about, you have no

business taking any more time than 30 seconds”’ (419A).

Ali counsel joined in a motion for a mistrial based

upon these remarks. The District Court heard arguments,

denied the motion and agreed to give curative instructions

in its charge the next day.

i OI ..R oee. me

A ON a TD ee din atl ne fate paren

Mik arenas

11

The quoted passage dually prejudiced the defense.

Firstly, when coupled with previous statements that peti-

tioner’s attorney in his summation ‘‘raised the innuendo’’

that Rivera had been fed names and ‘‘programmed with

these names and told ‘You'll testify about these people,’ ”’

although he never knew them, it unfairly characterized

defense arguments as an accusation that the federal

government was framing an innocent man. Secondly, it

told the jury that the two young clean-cut prosecutors

stood behind and vouched for the credibility of the

criminals who cooperated with the Government in a suc-

cessful effort to extricate themselves.

The thrust of the defense summation was that peti-

tioner was the victim of a lying informant and mistaken °

belicfs on the part of the detectives formed by his being at

the wrong places at the wrong times. Rivera was vigorous-

ly attacked as a liar. The agent’s testimony was explained

as consistent with innocence, rather than guilt. At no time

did counsel suggest that they had committed perjury.

Significantly, at the conclusion of petitioner’s closing

arguments, no complaint was voiced that the office of the

United States Attorney had been denigrated and no

curative instructions thereon were requested.

From these facts, it is submitted, this case falls within

the holding of United States v. Grunberger (431 F.2d

1062, 1068 [2d Cir. 1970], wherein it was noted that the

prosecutor’s statements were ‘‘not merely an averment of

a personal belief... based on the evidence adduced

at... . trial.”” The prosecutor cannot tell the jury that he

thinks the defendant is guilty (United States v. Farnkoff,

supra). Here, the added factor exists that all counsel were

specifically warned immediately prior to the closing

arguments not to vouch for the credibility of witnesses

(Tr. 2991-2992).

Furthermore, it must be emphasized that the defense

attack upon the Government’s witnesses, no matter how

12

broadly it may be construed, did not im the integri

of the prosecutor’s office. Therefore, it ro ac be ics

that these disputed comments constituted a proper

response (see United States v. Tramunti, 513 F.2d 1087,

1118-1119 (2d Cir.], cert. den. 423 U.S. 832 [1975]; United

States v. Brawer, supra; United States v. LaSorsa, supra;

United States v. Benter, supra; United States vy. Kiarne,

258 F.2d 924, 934 [2d Cir. 1958}).

The District Court acknowledged that even if the pro-

secutor had not included himself ‘‘in those whose

representations might be jeopardized, . . . it was still put-

ting the whole credibility of the United States Government

behind these witnesses.’ Accordingly, it gave instructions

to the jury to the effect that attorneys do not vouch for

their witnesses. For a number of reasons these remarks

could not rectify the situation.

No instructions could remedy this egregious error or

sufficiently reverse its impact upon the jury. Anything the

judge said could not change the impression left by the

young and eager prosecutors that they would not put on

an untruthful witness and thereby jeopardize their careers.

Of course, here the only issue with respect to petitioner

was Rivera’s credibility. Moreover, because of the judge’s

policy at trial, defense counsel were barred from interrup-

ting the rebuttal summation and, perhaps, limiting the ef-

fect of the error by nipping it in the bud. A specific request

to alter this system solely for the prosecutor’s rejoinder

was denied. When the court finally dealt with the subject,

it was in the second part of its charge given after 2:00 P.M.

on the following day. Coming as they did almost twenty-

four-hours later and as a small part of the charge which

consumed over one hundred pages of transcript, the in-

structions were too late and lost in the plethora of impor-

tant advice they accompanied.

RR MUNN i Nant a me

13

4. The Indictment In The Jury Room Question.

A copy of the indictment was distributed to each

member of the jury to enable him or her to follow along as

the judge went over it during his instructions. Although

the substantive counts pertaining to defendants not on

trial were deleted, in spite of a defense objection, the

forty-four overt acts listed in the first count were retained.

Near the conclusion of the charge, the trial judge notified

the jury that it could utilize its copies of the indictment in

the jury room. This error was not cured by the usual cau-

tionary instructions that an indictment is not evidence.

In United States v. Marquez (424 F.2d 236, 240 [2d

Cir.], cert. den. 400 U.S. 828 [1970]), the Court of Ap-

peals upheld the submission of an indictment to the jury

upon its request for the same. However, in a more recent

case that Court specifically mentioned that “‘we are

neither asked to decide, nor do we express, any view as to

whether the jury is to inspect an indictment in any or all

criminal prosecutions’ (United States v. Cirami, 510 F.2d

69, 74 [2d Cir.], cert. den. 421 U.S. 964 [1975]).

Since the indictment is not evidence, it should not be

included among the exhibits the jury examines in reaching

its verdict. In the present case, the overt acts were a sum-

mary of the Government’s case and amounted to letting

the jury read the prosecutor’s summation or a synopsis of

the direct examination without benefit of the discrepancies

and shortcomings elicited on cross-examination. The

psychological effect upon a juror of having the indictment

before him and the opportunity for him to digest it with

the additional ‘sense of sight unavoidably attribute un-

founded significance to the accusation.

14

CONCLUSION

Certiorari should be granted and the judgment below

reversed.

Respectfully submitted,

O’ROURKE, McGOVERN & DEGEN

Attorneys for Petitioner

233 Broadway

New York, N.Y. 10007

(212) 227-4530

RONALD D. DEGEN

Of Counsel

&

la

APPENDIX “A”

OPINION OF THE UNITED STATES COURT OF AP-

PEALS FOR THE SECOND CIRCUIT

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Nos. 752, 797-804—September Term, 1977.

(Argued April 14, 1978 Decided April 28, 1978)

Docket Nos. 77-1465-77-1470; 77-1473; 77-1475; 78-1018

aie

UNITED STATES OF AMERICA,

Appellee,

Vv.

DOMINGO ZAYAS, a/k/a Luis Nunez, a/k/a Luis

Maciado, a/k/a Luisito, ORLANDO MACHADO, a/k/a

Julito, LUIS NUNEZ-RAMOS, a/k/a Indio, CARLOS

RIVERA-SANTIAGO, a/k/a Carlitos, ANGELO

ROCHE, a/k/a The Old Man, JOSE VELASQUEZ,

a/k/a Vaquero, a/k/a Cowboy, FABIAN RODRIQUEZ,

ANTONIO MORALES, a/k/a Tony the Mechanic, AN-

THONY RODRIQUEZ, a/k/a Little Tony,

Defendants-Appellants.

Before:

LUMBARD, MANSFIELD, and MESKILL,

Circuit Judges.

2a

Appeal from conviction after trial before Southern

District of New York, Broderick, Judge, and a jury, on

charges of conspiracy to violate narcotics laws.

Affirmed.

JAMES A. MOSS, Assistant United States Attorney

(Robert B Fiske, Jr., United States Attorney for the

Southern District of New York, Richard F. Ziegler and

Richard Weinberg, Assistant United States Attorneys, on

the brief), for Appellee.

JEROME A. LANDAU, New York, New York, on

the brief, for Defendant-Appellant Domingo Zayas.

JOHN J. BRODERICK, Syosset, New York, for

Defendant-Appellant Orlando Machado.

THEODORE KRIEGER, New York, New York, for

Defendant-Appellant Luis Nunez-Ramos.

HUGH CUNIFFE, New York, New York, for

Defendant-Appellant Carlos Rivera-Santiago.

O”’ROURKE, McGOVERN & DEGEN, and Ronald

D. Degen, New York, New York, on the brief, for

Defendant-Appellant Angelo Roche.

KENNETH LINN, New York, New York, on the

brief, for Defendant-Appellant Jose Veiasquez.

ROBERT MITCHELL, New York, New York, on

the brief, for Defendant-Appellant Fabian Rodriguez.

MICHAEL P. STOKAMER, New York, New York,

on the brief, for Defendant-Appellant Antonio Morales.

BONNIE P. JOSEPHS, New York, New York, for

Defendant-Appellant Anthony Rodriguez.

PER CURIAM:

Luis Nunez-Ramos and eight co-defendants appeal

from their convictions after a six-week jury trial before

Judge Broderick in the Southern District of New York on

3a

charges of a conspiracy to violate the narcotics laws. We

affirm.

The conspiracy involved a quick response of a

number of narcotics traffickers to the opportunity provid-

ed by the 1973 heroin panic in New York City. As white

heroin, normally plentiful, became unavailable on the

streets, one Fernando Gallardo and his associates ap-

parently resolved to step into the breach by procuring a

supply of Mexican ‘‘brown rock’’ heroin through Califor-

nia sources. Defendants here were charged with being

couriers and distributors within the Gallardo organiza-

tion.

The first contention we address is that defendants’

trials ought to have been severed from each other to avoid

prejudice. A comparison between the instant case and

United States v. Moten, 564 F.2d 620 (2d Cir. 1977), will

demonstrate that this alleged conspiracy was well within

the bounds—of both size and complexity—inside of which

we have ruled that no prejudice is caused by a joint trial.

Defendant Carlos Rivera-Santiago alleges that the

government improperly led him to believe that he would

have to establish an alibi for the last two weeks of Oc-

tober, 1974, and did not disclose until trial that the rele-

vant period was, in fact, earlier in October. This argument

fails for a number of reasons. First, the government never

assured Santiago that he could limit his alibi to the last two

weeks in October. Rather, the entire month of October

was specified; only preliminarily did the government

estimate that the relevant period would probably be the

third and fourth weeks. If Santiago chose to hazard all on

this speculation, the risk of disappointment was his.

Moreover, he had four weeks after he was advised of the

true period involved before he had to put on his defense.

Despite at least two trips to Puerto Rico in that time, San-

tiago was unable to adduce any additional alibi evidence;

indeed, to this day he has not pointed to any evidence that

4a

he might have been able to present at trial had he known

_ earlier what the relevant period was. Accordingly, he has

failed to show any prejudice.

Defendant Orlando Machado asserts that he was pre-

judiced by the presentation to the jury of

evidence—mistaken identification by a government

witness—that was not disclosed to him before trial. In the

first place, as Machado’s counsel candidly acknowledged,

the effect of the misidentification could only have been

favorable to Machado in the eyes of the jury. Once the

government had conceded that a crucial witness had erred

in identifying Machado, it was in Machado’s interest that

trial continue with the same jury, free to draw from the in-

cident conclusions unfavorable to the reliability of the

witness, and therefore helpful to Machado. Moreover, any

prejudice that could conceivably have resulted was clearly

avoided by Judge Broderick’s prompt and repeated

curative instruction.

Of some greater weight is the contention that the

government’s attorney introduced an improper element in-

to his summation when he stated, ‘‘if you think that I, if

you think that [co-counsel] or any other federal agent

would jeopardize his or her career beyond a reasonable

doubt to convict these people by doing such a thing (put-

ting thoughts in witnesses’ minds], then take about 30

seconds in your deliberations; if you think that is what

happened here, come back in 30 seconds and acquit every

one of them... .”’ It is true that we have said, and con-

timue to believe, that such statements in summations go

beyond the bounds of propriety. But it is equally true that

we have permitted convictions to stand in the face of

similar, or even more objectionable, language in the

government’s summation, when the defense has put in

issue the question of the government’s integrity in its

handling of its witnesses. See, e.g., United States v.

5a

unti, $13 F.2d 1087 (2d Cir.), cert. denied, 423 U.S.

532 (1975. United States v. Benter, 457 F.2d 1174 (2d

Cir.), cert. denied, 409 U.S. 842 (1972). We conclude that,

in the circumstances of this case, the prosecutor’s remark

does not constitute reversible error.

We have considered the defendants’ other arguments

and find that they are without merit. Accordingly, the

convictions are affirmed.

6a

APPENDIX ‘‘B’’

INDICTMENT

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

v.

FERNANDO GALLARDO, a/k/a Frank Zayas, MAR-

THA MACHADO, a/k/a Martha Vargas, a/k/a Martha

Gallardo, CARLOS GALLARDO, a/k/a Carlos

Santiago-Bautista, HERMINIO GUTIERREZ, a/k/a

Cuba, DOMINGO ZAYAS, a/k/a Luis Nunez, a/k/a

Luis Machado, a/k/a Luisito, ORLANDO MACHADO,

a/k/a Julito, WILFREDO MACHADO, HILDA

GRACIA, a/k/a Carlos Gallardo’s wife, JOSE LUIS IG-

LESIAS, a/k/a Chegui, LUIS NUNEZ-RAMOS, a/k/a

Indio, CARLOS RIVERA-SANTIAGO, a/k/a Carlitos,

ANGELO ROCHE, a/k/a The Old Man, JOSE VELAS-

QUEZ, a/k/a Vaquero, a/k/a Cowboy, MOISES

MALDONADO, GILBERTO TORRES, a/k/a Little

Gilbert, FABIAN RODRIGUEZ, RICARDO TIRADO,

LUIS RODRIGUEZ, JOSE LUIS TERSON, a/k/a The

Old Man, VICTOR MEDINA, a/k/a Vitin, ANTONIO

MORALES, a/k/a Tony the Mechanic, RICARDO GAR-

CIA, ANTHONY RODRIGUEZ, a/k/a Little Tony,

and JOHN DOE, a/k/a Pumarejo,

Defendants.

7a

COUNT ONE

The Grand Jury charges:

I. THE CONSPIRACY

1. From on or about the Ist day of October 1973, and

continuously thereafter up to and including the 6th day of

November, 1975, in the Southern District of New York

and elsewhere:

FERNANDO GALLARDO, a/k/a Frank Zayas,

MARTHA MACHADO, a/k/a Martha Vargas,

a/k/a Martha Gallardo, CARLOS GALLARDO,

a/k/a Carlos Santiago-Bautista, HERMINO

GUTIERREZ, a/k/a Cuba, DOMINGO ZAYAS,

a/k/a Louis Nunez, a/k/a Luis Machado, a/k/a

Luisito, ORLANDO MACHADO, a/k/a Julito,

WILFREDO MACHADO, HILDA GRACIA, a/k/a

Carlos Gallardo’s wife, JOSE LUIS IGLESIAS,

a/k/a Chegui, LUIS NUNEZ-RAMOS, a/k/a Indio,

CARLOS RIVERA-SANTIAGO, a/k/a Carlitos,

ANGELO ROCHE, a/k/a The Old Man, JOSE

VELASQUEZ, a/k/a Vaquero, a/k/a Cowboy,

MOISES MALDONADO, GILBERTO TORRES,

a/k/a Little Gilbert, FABIAN RODRIGUEZ,

RICARDO TIRADO, LUIS RODRIGUEZ, JOSE

LUIS TERSON, a/k/a The Old Man, VICTOR

MEDINA, a/k/a Vitin, ANTONIO MORALES,

a/k/a Tony the Mechanic, RICARDO GARCIA,

ANTHONY RODRIGUEZ, a/k/a Little Tony, and

JOHN DOE, a/k/a Pumarejo.

the defendants, and others to the Grand Jury known and

unknown, including:

Fernando Valenzuela- Verdugo, Hector Ramos-Iribe,

Humberto Ramos-Serrano, a/k/a Colorado, a/k/a

8a

Red, Francisco Machado, a/k/a Paco, a/k/a Pa-

quito, Jane Doe, a/k/a Carmen, a/k/a Paco’s wife,

Felix Machado, a/k/a Felde, a/k/a Ferde, William

Cortes-Rios, Raymond Rivera, Benito Cruz, a/k/a

Nino, Jose Rivera, a/k/a Rico, Raymond Rossy,

Hermenigildo Diaz-Caballero, a/k/a Puton, Raphael

Gonzalez, a/k/a Flaco, Ramon DeJesus-Cortes,

a/k/a Ramoncito, Raymond Valentine, and Herman

Rosa,

named herein as co-conspirators, but not as defendants,

unlawfully, intentionally and knowingly, combined, con-

spired, confederated and agreed together and with each

other, to violate the narcotics laws of the United States,

specifically Sections 812, 841(a)(1), 841(b)(1)(A), 951, 952

and 960 of Title 21, United States Code.

_ Il. OBJECTS OF THE CONSPIRACY

2. It was an object of the conspiracy charged herein to

unlawfully import and bring into the United States from

Mexico large amounts of narcotic drugs, specifically

**brown rock’’ heroin, in violation of Sections 951, 952

and 960 of Title 21, United States Code.

3. It was a further object of said conspiracy to

unlawfully distribute and possess with intent to distribute,

in this country Mexican ‘‘brown rock’’ heroin, a Schedule

I narcotic drug controlled substance, in violation of Sec-

tions 812, 841(a)(1) and 841(b)(1)(A) of Title 21, United

States Code.

Ill. MEANS OF THE CONSPIRACY

4. Among the means by which the defendants and co-

conspirators would and did carry out these objects, and in-

sure the success of their unlawful venture to import,

9a

possess and distribute Mexican ‘‘brown rock’’ heroin,

were the following:

The conspiracy took the form of a loose-knit business

organization, with members of the conspiracy carrying out

four basic functions.

(i) Certain co-conspirators based in and around Los

Angeles, California (and herein referred to as ‘‘the Valen-

zuela organization’’) served as importers and sources of

supply of heroin.

(ii) Other members of the conspiracy organized,

supervised, managed, controlled and financed a New York

City-based narcotics distribution organization (hereinafter

‘the Gallardo organization’’), which directed the ac-

tivities of couriers and middle-level distributors of heroin.

(iii) Couriers of the Gallardo organization travelled

between New York City and Los Angeles, California in

order to purchase Mexican ‘‘brown rock’’ heroin in multi-

kilogram quantities from the Valenzuela organization.

(iv) In turn, these couriers distributed this heroin in

wholesale quantities to certain defendants and co-

conspirators in New. York City who operated as mid-

diemen, purchasing the heroin and, in turn, selling it to

their respective customers.

OVERT ACTS

In pursuance of the said conspiracy and to effect the

objects thereof, the following overt acts, among others,

were committed in the Southern District of New York and

elsewhere:

1. In August 1974, defendants FERNANDO

GALLARDO, a/k/a Frank Zayas, MARTHA

MACHADO, a/k/a Martha Vargas, a/k/a Martha

Gallardo, CARLOS GALLARDO, a/k/a Carlos

Santiago-Bautista, HERMINIO GUTIERREZ, a/k/a

Cuba, and HILDA GRACIA, a/k/a Carlos Gallardo’s

10a

wife, and co-conspirators William Cortes-Rios and Ray-

mond Rivera attended a meeting in Puerto Rico and

discussed the admission of Raymond Rivera into the

Gallardo organization.

2. In August 1974, co-conspirators William Cortes-

Rios and Raymond Rivera travelled from New York City

to Los Angeles, California in order to purchase approx-

imately eleven quarter-kilogram packages of heroin from

co-conspirator Hector Ramos-Iribe, a member of the

Valenzuela organization.

3. In and about August and September 1974, in New

York City, co-conspirators William Cortes-Rios and Ray-

mond Rivera distributed and sold approximately eleven

quarter-kilogram packages of heroin for approximately

$108,000.

4. In and about August or September 1974, in New

York City, the defendant HERMINIO GUTIERREZ,

a/k/a Cuba, received approximately one-quarter of a

kilogram of heroin.

5. In or about August or September 1974, in New

York City, the defendant ANGELO ROCHE, a/k/a The

Old Man, received approximately one-half of a kilogram

of heroin.

6. In or about August or September 1974, in New

York City, the defendant JOSE VELAZQUEZ, a/k/a Va-

quero, a/k/a Cowboy, received approximately one-

quarter of a kilogram of heroin.

7. In or about August or September 1974, in New

York City, the defendant MOISES MALDONADO

received approximately one-quarter of a kilogram of

heroin.

8. In and about August or September 1974, in New

York City, defendant JOSE LUIS IGLESIAS, a/k/a

Chegui, and co-conspirator Raymond Rivera discussed the

sale of heroin to customers on the Lower East Side of

Manhattan.

lla

9. In or about early September 1974, co-conspirator

Raymond Rivera travelled from New York City to Los

Angeles, California in order to purchase approximately 14

quarter-kilogram packages of heroin from co-conspirator

Hector Ramos-Iribe, a member of the Valenzuela

organization.

11. In September 1974, in New York City, the defen-

dant LUIS NUNEZ-RAMOS, a/k/a Indio, received ap-

proximately one-quarter of a kilogram of heroin.

12. In September 1974, in New York City, the defen-

dant ANGELO ROCHE, a/k/a The Old Man, received

approximately one-half of a kilogram of heroin.

13. In September 1974, in New York City, the defen-

dant JOSE VELAQUEZ, a/k/a Vaquero, a/k/a Cowboy,

received approximately one-quarter of a kilogram of

heroin.

14. In September 1974, in New York City, the defen-

dant MOISES MALDONADO received approximately

one-quarter of a kilogram of heroin.

15. In September 1974, in New York City, the defen-

dant RICARDO TIRADO received approximately one-

eighth of a kilogram of heroin.

16. In September 1974, in New York City, the defen-

dant LUIS RODRIGUEZ received approximately one-

eighth of a kilogram of heroin.

17. In September 1974, in New York City, the defen-

dant JOSE LUIS TERSON, a/k/a The Old Man, received

approximately one-eighth of a kilogram of heroin.

18. In September 1974, in New York City, the defen-

dant VICTOR MEDINA, a/k/a Vitin, received approx-

imately one-quarter of a kilogram of heroin.

19. In September 1974, in New York City, the defen-

dant ANTONIO MORALES, a/k/a Tony the Mechanic,

received approximately one-quarter of a kilogram of

heroin.

20. In September 1974, in New York City, the defen-

12a

dant Ricardo Garcia received approximately one-eighth of

a kilogram of heroin.

21. In September 1974, in New York City, co-

conspirator Raymond Rivera delivered approximately

$120,000 in cash, the proceeds from the sale of heroin to

customers of the Gallardo organization.

22. In September 1974, in New York City, defendants

FERNANDO GALLARDO, a/k/a Frank Zayas, MAR-

THA MACHADO, a/k/a Martha Vargas, a/k/a Martha

Gallardo, and CARLOS GALARDO, a/k/a Carlos

Santiago-Bautista, and co-conspirators Francisco

Machado, a/k/a Paco, a/k/a Paquito, and Jane Doe,

a/k/a Carmen, a/k/a Paco’s wife, counted approximately

$120,000 in cash.

23. In September 1974, defendants FERNANDO

GALLARDO, a/k/a Frank Zayas, and MARTHA

MACHADO, a/k/a Martha Vargas, a/k/a Martha

Gallardo, travelled to California with a large quantity of

money and met with members of the Valenzuela organiza-

tion.

24. In or about late September or early October 1974,

co-conspirator Raymond Rivera travelled from New York

City to Los Angeles, California in order to receive approx-

imately 16 quarter-kilogram packages of heroin from co-

conspirator Hector Ramo-Iribe, a member of the Valen-

zuela organization.

25. In or about late September or early October 1974,

in New York City, the defendant LUIS RODRIGUEZ

received approximately one-quarter of a kilogram of

heroin..

26. In October 1974, co-conspirator Raymond Rivera

travelled from New York City to Los Angeles, California

in order to receive approximately ten quarter-kilogram

packages of heroin from co-conspirator Hector Ramos-

Iribe, a member of the Valenzuela organization.

27. In October 1974, in New York City, co-

13a

conspirator Raymond Rivera delivered approximately ten

quarter-kilogram packages of heroin to defendants LUIS

NUNEZ-RAMOS, a/k/a Indio, and CARLOS RIVERA-

SANTIAGO, a/k/a Carlitos.

28. In October 1974, in New York City, defendants

LUIS NUNEZ-RAMOS, a/k/a Indio, CARLOS

RIVERA-SANTIAGO, a/k/a Carlitos, and JOSE LUIS

IGLESIAS, a/k/a Chegui, and co-conspirator Raymond

Rivera had a discussion concerning the sale of heroin to

customers of the Gallardo organization.

29. In and about October and November 1974, defen-

dant FERNANDO GALLARDO, a/k/a Frank Zayas,

and co-conspirator Raymond Rivera travelled separately

from New York City to Los Angeles, California.

30. In November 1974, in the vicinity of Los Angeles,

California, defendant FERNANDO GALLARDO, a/k/a

Frank Zayas, and co-conspirator Raymond Rivera receiv-

ed approximately 35 quarter-kilograms of heroin from co-

conspirators Fernando Valenzuela, Hector Ramos-Iribe

and other members of the Valenzuela organization, in ex-

change for approximately $190,000 in cash.

31. In November 1974, defendant FERNANDO

GALLARDO, a/k/a Frank Zayas, and co-conspirator

Raymond Rivera checked into the George Washington

Hotel, New York, New York with approximately 35

quarter-kilograms of heroin in their possession.

32. In November 1974, in New York City, co-

conspirator Raymond Rivera delivered on three separate

occasions to defendants FERNANDO GALLARDO,

a/k/a Frank Zayas, MARTHA MACHADO, a/k/a Mar-

tha Vargas, a/k/a Martha Gallardo, and CARLOS

GALLARDO, a/k/a Carlos Santiago-Bautista, and co-

conspirator William Cortes-Rios, a total of approximately

$250,000 in cash, the proceeds from the sale of heroin to

customers of the Gallardo organization.

33. In or about December 1974 or January 1975, in

14a

New York City, the defendant FERNANDO GALLAR-

DO, a/k/a Frank Zayas, distributed approximately one

and one-quarter kilograms of heroin to defendants

GILBERTO TORRES, a/k/a Little Gilbert, and FABIAN

RODRIGUEZ.

34. In or about December 1974 or January 1975,

defendant WILFREDO MACHADO travelled from New

York City to Los Angeles, California in order to receive

approximately seven and one-half kilograms of heroin

from members of the Valenzuela organization.

35. In January 1975, defendants FERNANDO

GALLARDO, a/k/a Frank Zayas, MARTHA

MACHADO, a/k/a Martha Vargas, a/k/a Martha

Gallardo, and ORLANDO MACHADO, a/k/a Julito,

travelled from New York City to Los Angeles, California

in order to pick up approximately twelve and one-half

kilograms of heroin from members of the Valenzuela

organization.

36. During January 1975, in New York City, co-

conspirator Benito Cruz, a/k/a Nino, distributed approx-

imately ten and one-half kilograms of heroin to customers

of the Gallardo organization.

37. In January 1975, in New York City, co-

conspirator Bento Cruz, a/k/a Nino, drew up a list of cer-

tain persons to whom he had recently distributed heroin,

indicating the amount and price of the heroin distributed.

38. In January 1975, in New York City, co-

conspirator Raymond Rivera distributed approximately

one-half of a kilogram of heroin to defendant JOSE LUIS

IGLESIAS, a/k/a Chegui.

39. In the early part of 1975, defendant DOMINGO

ZAYAS, a/k/a Luis Nunez, a/k/a Luis Machado, a/k/a

Luisito, travelled from New York City to Los Angeles,

California on two separate occasions in order to pick up

quantities of heroin from members of the Valenzuela

organization.

15a

40. During the Spring of 1975, in New York City, co-

conspirator Raymond Rivera delivered on numerous occa-

sions to defendants MARTHA MACHADO, a/k/a Mar-

tha Vargas, a/k/a Martha Gallardo, CARLOS GALLAR-

DO, a/k/a Carlos Santiago-Bautista, JOHN DOE, a/k/a

Pumerejo, and HILDA GRACIA, a/k/a Carlos

Gallardo’s wife and co-conspirator Willie Cortes-Rios, a

total of approximately $500,000, the proceeds from the

sale of heroin to customers of the Gallardo organization.

41. In or about August 1975, in New York City,

defendants HERMINIO GUTIERREZ, a/k/a Cuba, and

_ANTHONY RODRIGUEZ, a/k/a Little Tony,

42. In or about August 1975, in New York City,

defendants FERNANDO GALLARDO, a/k/a Prank

Zayas, and HERMINO GUTIERREZ, a/k/a Cuba, and

co-conspirator Raymond Valentine had discussions con-

cerning the price of quarter-kilograms of heroin.

43. On or about September 12, 1975, in New York Ci-

ty, defendant FERNANDO GALLARDO, a/k/a Frank

Zayas, and co-conspirators Benito Cruz, a/k/a Nino, and

Herman | Rosa discussed the sale of approximately one-half

of a kilogram of heroin to another individual.

44. On or about Octrober 15, 1975, in New York Ci-

ty, defendant FERNANDO GALLARDO, a/k/a Frank

Zayas, and co-conspirator BENITO CRUZ, a/k/a Nino,

and HERMAN ROSA discussed the sale of approximately

five kilograms of heroin to another individual.

(Title 21, United States Code, Section 846.)

COUNT TWO

The Grand Jury further charges:

From on or about the Ist day of October, 1973, and

continuously thereafter up to and including the date of the

16a

filing of this indictment, in the Southern District of New

York, FERNANDO GALLARDO, the defendant,

unlawfully, wilfully, intentionally and knowingly did

engage in a continuing criminal enterprise in that he

unlawfully, wilfully, intentionally and knowingly did

violate Title 21, United States Code, Sections 841(a)(1)

and 841(b)(1)(A) as alleged in Counts Nineteen, Twenty-

three, Twenty-eight and Twenty-nine of this indictment,

which are incorporated by reference herein, and did com-

mit other violations of said statutes, which violations

were part of a continuing series of violations of said

statutes undertaken by the defendant in concert with at

least five other persons with respect to whom the defen-

dant FERNANDO GALLARDO occupied a position of

organizer, supervisor and manager and from which contin-

uing series of violations the defendant FERNANDO

GALARDO obtained substantial income and resources.

(Title 21, United States Code, Section 848.)

COUNT THREE

The Grand Jury further charges:

In or about August or September 1974, in the

Southern District of New York, HERMINIO GUTIER-

REZ, a/k/a Cuba, the defendant, unlawfully, intentional-

ly and knowingly did possess with intent to distribute a

Schedule I narcotic drug controlled substance, to wit, ap-

proximately one-quarter of a kilogram of heroin.

(Title 21, United States Code, Section 812, 841(a)(1)

and 841(b)(1)(A).)

COUNT FOUR

The Grand Jury further charges:

In or about August or September 1974, in the

Southern District of New York, ANGELO ROCHE,

17a

a/k/a The Old Man, the defendant, unlawfully, inten-

tionally and knowingly did possess with intent to

distribute a Schedule I narcotic drug controlled substance,

to wit, approximately one-half of a kilogram of heroin.

(Title 21, United States Code, Sections 812, 841(a)(/)

and 841(b)(1)(A).)

COUNT FIVE

The Grand Jury further charges:

In or about August or September 1974, in the

Southern District of New York, JOSE VELASQUEZ,

a/k/a Vaquero, a/k/a Cowboy, the defendant, unlawful-

ly, intentionally and knowingly did possess with intent to

distribute a Schedule I narcotic drug controlled substance,

to wit, approximately one-quarter of a kilogram of heroin.

(Title 21, United States Code, Sections 812, 841(a)(1)

and 841(b)(1)(A).)

COUNT SIX

The Grand Jury further charges:

In or about August or September 1974, in the

Southern District of New York, MOISES

MALDONADO, the defendant, unlawfully, intentionally

and knowingly did possess with intent to distribute a

Schedule I narcotic drug controlled substance, to wit, ap-

proximately one-quarter of a kilogram of heroin.

(Title 21, United States Code, Sections 812, 841(a)(1)

and 841(b)(1)(A).)

COUNT SEVEN

The Grand Jury further charges:

In September 1974, in the Southern District of New

York, LUIS NUNEZ-RAMOS, a/k/a Indio, the defen-

18a

dant, unlawfully, intentionally and knowingly did possess

with intent to distribute a Schedule I narcotic drug con-

trolled substance, to wit, approximately one-quarter of a

kilogram of heroin.

(Title 21, United States Code, Sections 812, 841(a)(1)

and 841(b)(1)(A).)

COUNT EIGHT

The Grand Jury further charges:

In September 1974, in the Southern District of New

York, ANGELO ROCHE, a/k/a The Old Man, the

defendant, unlawfully, intentionally and knowingly did

possess with intent to distribute a Schedule I narcotic drug

controlled substance, to wit, approximately one-half of a

kilogram of heroin.

(Title 21, United States Code, Sections 812, 841(a)(1)

and 841(b)(1)(A).)

COUNT NINE

The Grand Jury further charges:

In September 1974, in the Southern District of New

York, JOSE VELASQUEZ, a/k/a Vaquero, a/k/a

Cowboy, the defendant, unlawfully, intentionally and

knowingly did possess with intent to distribute a Schedule

I narcotic drug controlled substance, to wit, approximate-

ly one-quarter of a kilogram of heroin.

(Title 21, United States Code, Sections 812, 841(a)(1)

and 841(b)(1){A).)

COUNT TEN

The Grand Jury further charges:

In September 1974, in the Southern District of New

York, MOISES MALDONADO, the defendant,

19a

unlawfully, intentionally and knowingly did possess with

intent to distribute a Schedule I narcotic drug controlled

substance, to wit, approximately one-quarter of a

kilogram of heroin.

(Title 21, United States Code, Sections 812, 841(a)(1)

and 841(b)(1)(A).)

COUNT ELEVEN

The Grand Jury further charges:

In September 1974, in the Southern District of New

York, RICHARDO TIRADO, the defendant, unlawfully,

intentionally and knowingly did possess with intent to

distribute a Schedule I narcotic drug controlled substance,

to wit, approximately one-eighth of a kilogram of heroin.

(Title 21, United States Code, Sections 812, 841(a)(1)

and 841(b)(1)(A).)

COUNT TWELVE

The Grand Jury further charges:

In September 1974, in the Southern District of New

York, LUIS RODRIGUEZ, the defendant, unlawfully, in-

tentionally and knowingly did possess with intent to

distribute a Schedule I narcotic drug controlled substance,

to wit, approximately one-eighth of a kilogram of heroin.

(Title 21, United States Code, Sections 812, 841(a)(1)

and 841(b)(1)(A); Title 18, United States Code, Sec-

tion 2.)

COUNT THIRTEEN

The Grand Jury further charges:

In September 1974, in the Southern District of New

York, JOSE LUIS TERSON, a/k/a The Old Mar, the

defendant, unlawfully, intentionally and knowingly did

20a

possess with intent to distribute a Schedule I narcotic drug

controlled substance, to wit, approximately one-eight of a

kilogram of heroin.

(Title 21, United States Code, Sections 812, 841(a)(1)

and 841(b)(1)(A); Title 18, United States Code, Sec-

tion 2.)

COUNT FOURTEEN

The Grand Jury further charges:

In September 1974, in the Southern District of New

York, VICTOR MEDINA, a/k/a Vitin, the defendant,

unlawfully, intentionally and knowingly did possess with

intent to distribute a Schedule I narcotic drug controlled

substance, to wit, approximately one-quarter of a

kilogram of heroin.

(Title 21, United States Code, Sections 812, 841(a)(1)

and 841(b)(1)(A).)

COUNT FIFTEEN

The Grand Jury further charges:

In September 1974, in the Southern District of New

York, ANTONIO MORALES, a/k/a Tony the Mechanic,

the defendant, unlawfully, intentionally and knowingly

did possess with intent to distribute a Schedule I narcotic

drug controlled substance, to wit, approximately one-

quarter of a kilogram of heroin.

(Title 21, United States Code, Sections 812, 841(a)(1)

and 841(b)(1)(A).)

COUNT SIXTEEN

The Grand Jury further charges:

In September 1974, in the Southern District of

New York, RICHARDO GARCIA, the defendant,

2la

unlawfully, intentionally and knowingly did possess

with intent to distribute a Schedule I narcotic drug

controlled substance, to wit, approximately one-

eighth of a kilogram of heroin.

(Title 21, United States Code, Sections 812, 841(a)(1)

and heen Title 18, United States Code, Sec-

tion 2.)

COUNT SEVENTEEN

The Grand Jury further charges:

In or about late September or early October 1974, in

the Southern District of New York, LUIS RODRIGUEZ,

the defendant, unlawfully, intentionally and knowingly

did possess with intent to distribute a Scinedule I narcotic

drug controlled substance, to wit, approximately one-

quarter of a kilogram of heroin.

(Title 21, United States Code, Sections 812, 841(a)(1)

and 841(b)(1)(A); Title 18, United States Code, Sec-

tion 2.)

COUNT EIGHTEEN

The Grand Jury further charges:

In October 1974, in the Southern District of New

York, JOSE LUIS IGLESIAS, a/k/a Chegui, LUIS

NUNEZ RAMOS, a/k/a Indio, and CARLOS RIVERA-

SANTIAGO, a/k/a Carlitos, the defendants, unlawfully,

intentionally and knowingly did distribute and possess

with intent to distribute a Schedule I narcotic drug con-

trolled substance, to wit, approximately two and one-half

kilograms of heroin.

(Title 21, United States Code, Sections 812, 841(a)(1)

and 841(b)(1)(A); Title 18, United States Code, Sec-

tion 2.)

22a

COUNT NINETEEN

The Grand Jury further charges:

In or about November 1974, in the Southern District

of New York, FERNANDO GALLARDO, a/k/a Frank

Zayas, the defendant, unlawfully, intentionally and know-

ingly did distribute and possess with intent to distribute a

Schedule I narcotic drug controlled substance, to wit, ap-

proximately 35 quarter-kilograms of heroin.

(Title 21, United States Code, Sections 812, 841(a)(1)

and 841(b)(1)(A); Title 18, United States Code, Sec-

tion 2.)

COUNT TWENTY

The Grand Jury further charges:

In or about December 1974 or January 1975, in the

Southern District of New York, FERNANDO GALLAR-

DO, a/k/a Frank Zayas, GILBERTO TORRES, a/k/a

Little Gilbert, and FABIAN RODRIGUEZ, the defen-

dants, unlawfully, intentionally and knowingly did

distribute and possess with intent to distribute a Schedule I

narcotic drug controlled substance, to wit, approximately

one and one-quarter kilogram of heroin.

(Title 21, United States Code, Sections 812, 841(a)(1)

and 841(b)(1)(A); Title 18, United States Code, Sec-

tion 2.)

COUNT TWENTY-ONE

The Grand Jury further charges:

In or about December 1974 or January 1975, in the

Southern District of New York, WILFREDO

MACHADO, the defendant, unlawfully, intentionally

and knowingly did distribute and possess with intent to

distribute a Scheduie I narcotic drug controlled substance,

23a

to wit, approximately seven and one-half kilograms of

heroin.

(Title 21, United States Code, Sections 812, 841(a)(1)

and i eeneie Title 18, United States Code, Sec-

tion 2.)

COUNT TWENTY-TWO

The Grand Jury further charges:

In or about January 1975, in the Southern District of

New York, GILBERTO TORRES, a/k/a Little Gilbert,

and FABIAN RODRIGUEZ, the defendants, unlawfully,

intentionally and knowingly did possess with intent to

distribute a Schedule I narcotic drug controlled substance,

to wit, approximately one kilogram of heroin.

(Title 21, United States Code, Sections 812, 841(a)(1)

and —— Title 18, United States Code, Sec-

tion 2.

COUNT TWENTY-THREE

The Grand Jury further charges:

In or about January 1975, in the Southern District of

New York, FERNANDO GALLARDO, a/k/a Frank

Zayas, MARTHA MACHADO, a/k/a Martha Vargas,

a/k/a Martha Gallardo, and ORLANDO MACHADO,

a/k/a Julito, the defendants, unlawfully, intentionally

and knowingly did distribute and possess with intent to

distriute a Schedule I narcotic drug controlled substance,

to wit, approximately twelve and one-half kilograms of

heroin.

(Title 21, United States Code, Sections 812, 841(a)(1)

and a A Title 18, United States Code, Sec-

tion 2.)

24a

COUNT TWENTY-FOUR

The Grand Jury further charges:

In or about January 1975, in the Southern District of

New York, VICTOR MEDINA, a/k/a Vitin, the defen-

dant, unlawfully, intentionally and knowingly did possess

with intent to distribute a Schedule I narcotic drug con-

trolled substance, to wit, approximately one-quarter of a

kilogram of heroin.

(Title 21, United States Code, Sections 812, 841(a)(1)

and 841(b)(1)(A).

COUNT TWENTY-FIVE

The Grand Jury further charges:

In or about January 1975, in the Southern District of

New York, JOSE LUIS IGLESIAS, a/k/a Chegui, the

defendant, unlawfully, intentionally and knowingly did

possess with intent to distribute a Schedule I narcotic drug

controlled substance, to wit, approximately one-half of a

kilogram of heroin.

(Title 21, United States Code, Sections 812, 841(a)(1)

and 841(b)(1)(A).)

COUNT TWENTY-SIX

The Grand Jury further charges:

In or about February or March 1975, in the Southern

District of New York, DOMINGO ZAYAS, a/k/a Luis

Nunez, a/k/a Luis Machado, a/k/a Luisito, the defen-

dant, unlawfully, intentionally and knowingly did

distribute and possess with intent to distribute a Schedule I

narcotic drug controlled substance, to wit, approximately

three and one-half kilograms of heroin.

(Title 21, United States Code, Sections 812, 841(a)(1)

and 841(b)(1)(A).)

25a

COUNT TWENTY-SEVEN

The Grand Jury further charges:

In or about August 1975, in the Southern District of

New York, HERMINIO GUTIERREZ, a/k/a Cuba, and

ANTHONY RODRIGUEZ, a/k/a Little Tony, the defen-

dants, unlawfully, intentionally and knowingly did

distribute and possess with intent to distribute a Schedule I

narcotic drug controlled substance, to wit, approximately

one-quarter of a kilogram of heroin.

(Title 21, United States Code, Sections 812, 841(a)(1)

and 841(b)(1)(A); Title 18, United States Code, Sec-

tion.)

COUNT TWENTY-EIGHT

The Grand Jury further charges:

On or about the 12th day of September, 1975, in the

Southern District of New York, FERNANDO GALLAR-

DO, the defendant, unlawfully, intentionally and know-

ingly did distribute and possess with intent to distribute a

Schedule I narcotic drug controlled substance, to wit, ap-

proximately one-half of a kilogram of heroin.

(Title 21, United States Code, Sections 812, 841(a)(1)

and 841(b)(1)(A), Title 18, United States Code, Sec-

tion 2.)

COUNT TWENTY-NINE

The Grand Jury further charges:

On or about the 15th day of October, 1975 in the

Southern District of New York, FERNANDO GALLAR-

DO, the defendant, unlawfully, intentionally and know-

ingly did distribute and possess with intent to distribute a

Schedule I narcotic drug controlled substance, to wit, ap-

proximately five kilograms of heroin.

26a

(Title 21, United States Code, Sections 812, 841(a)(1)

and 841(b)(1)(A); Title 18, United States Code, Sec-

tion 2.)

s/ Emil H. Katz s/ Robert B. Fiske, Jr.

FOREMAN ROBERT B. FISKE, JR.

United States Attorney