UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: May 30, 1974.
UNITED STATES OF AMERICA
MARIA RODRIGUEZ DE LAZO, NORMA LENE HUNTER, CARRIE FRANCES WILKERSON, EDELBERTO ESQUIJAROSA, JOSHUA P. MOORE, GEORGE WALCOTT, ANGEL PEREZ ANGEL PEREZ, APPELLANT IN NO. 73-1712 JOSHUA MOORE, APPELLANT IN NO. 73-1793
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY, D.C. Criminal No. 606-72.
Van Dusen, Weis and Garth, Circuit Judges.
Author: Van Dusen
Opinion OF THE COURT
VAN DUSEN, Circuit Judge.
This is an appeal by defendants, Angel Perez and Joshua Moore, from a conviction, after a jury trial, for conspiracy to import and distribute cocaine and for possession of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 846 and 841(a) (1) and 18 U.S.C. § 2. At trial the Government introduced evidence to show that Perez and Moore were part of a conspiracy to manufacture cocaine outside of Bogota, Colombia, and to smuggle it into the United States for distribution. Perez was in charge of the manufacturing function, Lazo of the smuggling into the United States, and Moore and Walcott of the distribution within the United States. In furtherance of that conspiracy, 3885 grams of cocaine were brought into Newark airport on April 30, 1972, where it was seized by federal agents. Named in the indictment as co-conspirators were Maria De Lazo, Norma Hunter, George Walcott, Carrie Wilkerson, and Edelberto Esquijarosa.*fn1 Susan Boehlke and Mei Ling Moy were unindicted co-conspirators who were given immunity and testified for the Government at trial.
Appellants advance a number of arguments to support their claim that they are entitled to a judgment of acquittal or a new trial. After careful consideration, we find all of them to be without merit.
First, there is sufficient evidence on the record to permit the jury to infer that the cocaine which was seized from Maria Lazo's luggage at Newark airport came from the manufacturing establishment of Perez in Colombia.*fn2 Thus the jury could reasonably conclude that Perez was a member of the alleged conspiracy, in furtherance of which the cocaine was brought into Newark, and that he was an aider and abettor of Maria Lazo, whose constructive possession of the cocaine was, therefore, attributable to him. See Pinkerton v. United States, 328 U.S. 640, 646-47, 90 L. Ed. 1489, 66 S. Ct. 1180 (1946); United States v. Boyance, 329 F.2d 372, 375 (3d Cir.), cert. denied, 377 U.S. 965, 84 S. Ct. 1645, 12 L. Ed. 2d 736 (1964); United States v. Malfi, 264 F.2d 147, 151-52 (3d Cir. 1959).
Second, there is sufficient evidence to support the finding of the jury that Moore was also a member of that same conspiracy and that he was in constructive possession of the cocaine. The testimony of co-conspirators Susan Boehlke and Mei Ling Moy clearly establishes the existence of the alleged conspiracy and Moore's connection with it as one of the principal distributors of the cocaine after it arrived in the United States, and the evidence does not support Moore's contention that he withdrew from the conspiracy prior to the arrival of the cocaine in Newark. It is, of course, true that there must be independent evidence of Moor's participation in the conspiracy to permit the use against him of the declarations of his alleged co-conspirators. However, where, as here, the existence of the conspiracy is established by proof aliunde, slight evidence may be sufficient to connect a defendant with it. See, e.g., United States v. Kenny, 462 F.2d 1205, 1226 (3d Cir.), cert. denied, 409 U.S. 914, 93 S. Ct. 233, 34 L. Ed. 2d 176 (1972); United States v. Bey, 437 F.2d 188, 190 (3d Cir. 1971). In the present case there was sufficient evidence of Moore's participation in the conspiracy apart from any declarations of co-conspirators,*fn3 and the trial court properly admitted into evidence against Moore the testimony of Susan Boehlke and Mei Ling Moy.*fn4
Third, there is no plain error in the trial court's charge to the jury (appellants having failed to object to the charge at the time it was given). See F.R. Crim. P. 52(a). The trial court's instruction on reasonable doubt was not reversible error, United States v. Restaino, 369 F.2d 544, 546 (3d Cir. 1966),*fn5 and the remainder of the charge, read as a whole, supported, rather than weakened, that instruction. In addition, there was no plain error in the trial court's instruction on the absence of an overt act requirement under 21 U.S.C. § 846, see Leyvas v. United States, 371 F.2d 714, 717 (9th Cir. 1967), or on the Pinkerton doctrine, Pinkerton v. United States, supra at 646-47.*fn6
All other contentions of appellants have been considered and rejected.*fn7
Accordingly, the district court orders of judgment and commitment will be affirmed.