709 F.

2d 146

UNITED STATES of America, Appellee,

v.
Concepcion RUBIO, a/k/a "Carol Rubio," and Richard
Rosado,
Defendants-Appellants.
Nos. 178, 179, Dockets 82-1162, 82-1164.

United States Court of Appeals,

Second Circuit.
Argued Oct. 12, 1982.
Decided May 24, 1983.

Henry Putzel, III, New York City, for defendant-appellant Rubio.

Gerald J. McMahon, New York City, for defendant-appellant Rosado.
Lesley Oelsner, Asst. U.S. Atty., S.D.N.Y., New York City (John S.
Martin, Jr., U.S. Atty., S.D.N.Y., Gerard E. Lynch, Asst. U.S. Atty., New
York City, of counsel), for appellee.
Before MESKILL, PIERCE and FAIRCHILD* , Circuit Judges.
PIERCE, Circuit Judge:

I. BACKGROUND
1

On June 5, 1981, Drug Enforcement Administration (DEA) informant Dennis

Collazo twice telephoned Concepcion Rubio, a/k/a Carol Rubio, to arrange a
meeting between her and Richard Rosado, prospective narcotics buyers, and
DEA Special Agent Celerino Castillo, who was posing as a Mexican narcotics
seller named "Fernando Cordoba." Unknown to Rubio, the telephone calls
originated from DEA headquarters and, with Collazo's consent, were being
tape-recorded by Special Agent Castillo. During the course of the telephone
conversations, Collazo informed Rubio that "his man" (Cordoba) was arriving
that evening from Dallas and wanted to know if Rubio and Rosado were "for

real." Rubio assured the informant that "if it's good, and the price is decent,
yes." A meeting to discuss a possible sale was arranged for that evening at a
lounge in the Holiday Inn on West 57th Street in Manhattan.
2

The meeting was held as planned. Castillo was introduced as "Cordoba" and
the parties discussed terms for a cocaine transaction. Rubio and Rosado agreed
to purchase two kilograms of cocaine for $100,000, telling Cordoba that they
needed the drugs because their "South American connection" for cocaine had
just been arrested; that they had customers waiting; and that on several
occasions, they had used a scheme of rotating duplicate United States passports
to conceal their frequent trips to Ecuador where they bought cocaine and
smuggled it into this country. When Cordoba inquired whether raising
$100,000 would be a problem, Rosado assured him that "money [was] no
object;" he stated that he and his wife (Rubio) had been in the business for a
long time, and that they had cocaine money in various safe deposit boxes
around New York City. Arrangements were made to exchange the drugs and
money the next day at the same Holiday Inn.

On June 6, 1981, Rubio and Rosado arrived at the Holiday Inn at

approximately 12:30 p.m., and met Collazo and Cordoba in the lounge area.
Rubio was carrying a purse and a plastic bag. The bag, she revealed to Cordoba,
contained a triple beam scale, a device often used by narcotics traffickers to
measure cocaine in grams; and also a bottle of Clorox bleach, often used to test
cocaine.1 Rubio and Rosado were arrested by DEA agents when they left the
lounge enroute to Cordoba's room.

The agents searched the appellants and found a loaded .38 caliber revolver, an
alkaloid kit for testing cocaine and $178 in currency in Rubio's purse. They
found $778 in currency and two packets of heroin on Rosado's person. At the
time of the arrests, Rosado was then carrying the plastic bag containing the
scale and the bottle of Clorox. In the car which the appellants drove to the
Holiday Inn, the agents found a safe-deposit box key and a blue canvas bag in
which, after obtaining a search warrant, they found $48,810 in currency.

After being informed of his constitutional rights, Rosado was brought to DEA
headquarters on 57th Street in Manhattan for processing and questioning. When
asked about the purpose of being at the Holiday Inn, Rosado replied that he
was there for a weekend vacation with his wife. When asked about the triple
beam scale and the bottle of Clorox, Rosado said that his wife was planning to
do some cooking and cleaning over the weekend at the hotel. When confronted
with the heroin packets taken from his person, Rosado denied having had them
in his possession.

The initial detention of appellants at the Holiday Inn occurred on Saturday,

June 6, at approximately 1:30 p.m. The initial questioning and processing at
DEA headquarters was concluded that day by 3:00 p.m., whereupon Rubio and
Rosado were driven to the Metropolitan Correctional Center (MCC), where
they were confined to await arraignment on Monday, June 8--which occurred at
2:15 p.m. Thus, Rubio and Rosado were in custody two full days from arrest to
arraignment.2

Rosado was interrogated while in custody twice prior to his arraignment: first
at the time of arrest and processing on Saturday, June 6, and again on Monday,
June 8, at 11:45 a.m., at which time Rosado was questioned for approximately
30 minutes by an Assistant United States Attorney. Rubio was questioned once
during that same period, at the time of arrest and processing on Saturday.

Initially, defendants were charged in an indictment filed on June 16, 1981. On

November 5, 1981, a four count superseding indictment was filed: Count One
charged defendants with conspiracy to distribute and possess with intent to
distribute narcotics, and to import narcotics into the United States, namely
cocaine, in violation of 21 U.S.C. Secs. 812, 841(a)(1), 841(b)(1)(A), 952 and
960 (1976); Count Two charged Rosado with possession of heroin with intent to
distribute, in violation of 21 U.S.C. Secs. 812, 841(a)(1) and 841(b)(1)(A);3
Count Three charged Rubio with possession of a firearm during the commission
of the conspiracy charged in Count One, in violation of 18 U.S.C. Sec. 924(c)
(2) (1976); Count Four charged Rosado with making a false statement in
applying for a United States passport in violation of 18 U.S.C. Sec. 1542
(1976).

On December 1, 1981, approximately two weeks prior to appellants' first trial, 4

the informant Collazo revealed to Agent Castillo that he had been arrested more
than once and implied that, due to the arrests, he would never be able to return
to Puerto Rico. The agent became suspicious and investigated Collazo's
criminal record. Castillo discovered that not only had Collazo been arrested at
least four times in Puerto Rico and the United States, but that he was an
escaped prisoner from Puerto Rico with a warrant outstanding for his arrest.5
Collazo was immediately arrested by Agent Castillo.

10

The initial prosecution having ended in a mistrial due to a jury deadlock, the
case was retried before Judge Sprizzo and a jury. At the second trial, appellants
argued that they were entrapped by Collazo and were thus induced to engage in
the acts charged in the indictment. The trial judge instructed the jury that
entrapment occurs when "the criminal conduct of the defendant is the product
of the activity of government agents, that is, when the agents initiate, induce,

persuade or lure a person to commit a crime who would not otherwise have
committed the crimes alleged." After charging the jury, but prior to the
commencement of deliberations, the district judge conferred with counsel to
hear any objections to the charge. The government's attorney asked the judge to
clarify that portion of his charge in which he had stated that "the government
may not prosecute for offenses which it has created and in which it has
participated." Counsel for the government was concerned that the word
"participated" was ambiguous and could be construed by the jury to mean that
the use of an informant was, in and of itself, an improper participation in the
crime. Over defense counsel's objection, the court gave the following clarifying
instruction on entrapment:
11

Now, with respect to the entrapment charge. I made reference to the fact that
the Government may not prosecute for offenses which it has created and in
which it has participated. However, in using the word "participation" in that
aspect of the charge, I did not mean to include within that type of unlawful
participation the Government's use of an undercover agent who is playing a
role or purporting or pretending to be playing a role.

12

That is not the kind of participation which I meant when I talked about the
Government not being able to prosecute for crimes which it has created and in
which it has participated.

13

As I told you, the use of informants is lawful and it is perfectly proper for the
Government to give a defendant who is otherwise predisposed to commit an
offense an opportunity to do so.

14

Rosado was thereafter convicted on Counts One, Two and Four (conspiracy,
possession and false statement). Rubio was convicted of Counts One and Three
(conspiracy and carrying a firearm).6

15

Numerous claims of error are raised on appeal. Each appellant claims that: (1)
the court's clarifying charge on entrapment effectively precluded proper
consideration of that defense by the jury; and (2) the court erred in not
dismissing the indictment because of alleged misconduct by the government in
dealing with the informant Collazo. In addition, Rosado challenges the denial of
his motion to suppress certain post-arrest statements made during the two-day
pre-arraignment delay, and Rubio claims that the court erred by failing to
suppress certain post-arrest statements made by Rosado which she contends
prejudiced her defense. Additional claims of error are raised which are
meritless. For the reasons set forth below, we affirm the judgment of the district

court in its entirety.

II. DISCUSSION
A. Entrapment--the Clarifying Instructions
16

Appellants contend that the district court's clarifying charge on entrapment

erroneously precluded the jury from considering whether the appellants were
improperly induced to commit the acts charged as crimes by the activities of an
unsupervised informant. The clarifying charge had the effect, they contend, of
"direct[ing] the jury that it should find the government's participation in the
crime through the informant Collazo to have been proper and [thus did] not ...
constitute improper inducement to commit the offense." We disagree.

17

In United States v. Braver, 450 F.2d 799, 805 (2d Cir.1971), cert. denied, 405
U.S. 1064, 92 S.Ct. 1493, 31 L.Ed.2d 794 (1972), the defendants therein argued
that the segment of the trial judge's entrapment charge which explained the
necessity of the government using undercover agents and informants, in effect,
removed the factual question of entrapment from the jury. This court declined
to credit that argument then and we decline to do so now.

18

In both Braver and the instant case, the instruction given merely conveyed to
the jury the law of this circuit that the use of undercover agents and informers
is not an unlawful practice and should not distract its attention from the two
factual questions which it must decide: "(1) did the agent induce the accused to
commit the offence charged in the indictment; (2) if so, was the accused ready
and willing without persuasion and was he awaiting any propitious opportunity
to commit the offence." United States v. Sherman, 200 F.2d 880, 882 (2d
Cir.1952); see also United States v. Barnes, 604 F.2d 121, 160 (2d Cir.1979),
cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980); United
States v. Steinberg, 551 F.2d 510, 513-14 (2d Cir.1977).

19

Moreover, as this court held in United States v. Valencia, 645 F.2d 1158, 1166
(2d Cir.1980), "[t]o the extent that there is any arguable confusion in [the
court's clarifying] charge, it is insignificant when the entire charge is read in
context." Here, the trial judge was careful to relate his clarifying instruction to
the main charge, which had been given only minutes earlier. We find that the
jury charge, taken as a whole, properly stated the law of this circuit with respect
to entrapment, and did not preclude consideration of claimed improper
inducement, see Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400,
38 L.Ed.2d 368 (1973).

B. Governmental Misconduct
20

On December 2, 1981, one day after arrest of the informant Collazo by Agent
Castillo, Rosado made an oral motion at a hearing before Judge Duffy to
dismiss the indictment. The motion was based on alleged misconduct by the
government in utilizing and paying an escaped convict to serve as an informant
in conjunction with the activities of appellants. In a letter dated December 10,
1981, Assistant United States Attorney Romatowski alerted defense counsel
and the court that he had just learned that an unnamed DEA agent had
contacted the prosecutor for the Commonwealth of Puerto Rico, and allegedly
sought leniency on Collazo's behalf. In the same letter, Romatowski assured the
court that his office had contacted the DEA agent in question and directed that
"no [further] steps be taken to intervene with any law enforcement authorities
on Mr. Collazo's behalf." In a December 14, 1981 memorandum of law in
support of his December 2 motion to dismiss, Rosado cited the above two
bases--i.e., the government's use of an escaped convict as an informant and its
subsequent pleas for leniency--as improper conduct on the government's part
which required dismissal of the indictment. Rosado also contended that the
government's communication seeking leniency constituted improper
"tampering" with a potential witness. In its responding memorandum of law,
the government denied misconduct and assured the court that steps had been
taken to ensure that "similar lapses do not occur in the future." After the judge
reviewed these communications, he denied the relief sought, and the trial
commenced on December 17, 1981.

21

The first trial ended in a mistrial. Thereafter, Rosado renewed his motion for
dismissal of the indictment at his second trial when the government disclosed
that still additional indiscretions had occurred. In particular, it was revealed that
the aforementioned DEA agent, as well as an Assistant United States Attorney,
both from another district, had written letters to the prosecutor in Puerto Rico
on January 6, and February 3, 1982, respectively.7 These letters informed that
prosecutor that Collazo had assisted their particular offices in a major
investigation and had made possible infiltration of a large heroin trafficking
organization. Assistant United States Attorney Oelsner informed the court that
her office did not authorize the pleas for leniency, and had no prior knowledge
that the aforesaid two individuals would contact the Puerto Rico authorities
about Collazo. The district judge denied the motion, having concluded that
these acts do not "rise ... to the level of the type of constitutional infirmity
which would require the dismissal of the indictment." We agree.

22

It is well established that dismissal of an indictment on grounds of

governmental misconduct is an "extreme" and "drastic" sanction that is justified

only when it is necessary either (1) to eliminate unfair prejudice to a defendant,

or (2) to "help to translate the assurances of the United States Attorneys into
consistent performances by their assistants." United States v. Fields, 592 F.2d
638, 647-48 (2d Cir.1978), cert. denied, 442 U.S. 917, 99 S.Ct. 2838, 61
L.Ed.2d 284 (1979); see also United States v. Artuso, 618 F.2d 192, 196-97 (2d
Cir.), cert. denied, 449 U.S. 879, 101 S.Ct. 226, 66 L.Ed.2d 102 (1980). The
incidents involving Collazo demonstrated neither need and, hence, did not
warrant the extreme sanction of dismissal.
23

The district court heard the sworn testimony of Agent Castillo that he and his
associates were unaware of Collazo's fugitive status. After hearing argument,
the district court denied appellant's motion to dismiss the indictment on this
ground. Based upon the sworn testimony of the DEA agents concerning their
prior efforts to search the National Crime Information Computers in order to
investigate Collazo's criminal record, the judge's decision was not clearly
erroneous. Further, at the trial before Judge Sprizzo, the defendants were
allowed to cross examine the DEA agents regarding their misadventures with
the informant. Hence, the jury was enabled to examine this evidence and assess
the credibility of the government's witnesses and to draw their own conclusions
as to the government's knowledge of Collazo's fugitive status and the degree of
supervision afforded the informant.

24

Finally, we reject appellants' charges of misconduct relating to communications

made on behalf of Collazo by government agency representatives who had no
relationship to this case. On these facts, we decline to hold the United States
Attorneys' office responsible for the actions of those not under its control, and
about which it had no prior knowledge.

C. Post Arrest Statements

25

Appellant Rosado claims that Judge Duffy, who presided at appellants' pre-trial
suppression hearing, erred in not suppressing certain statements that he made to
DEA agents on June 6, 1981, and statements made to Assistant United States
Attorney Romatowski on June 8, 1981. See United States v. Rubio, 526
F.Supp. 171 (S.D.N.Y.1981). Specifically, Rosado contends that with regard to
the June 6 statements, the government failed to establish that he had knowingly
and intelligently waived his right to remain silent under Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). This claim arises from the
fact that the agent who testified that he gave the Miranda warnings to Rosado
on June 6th, when questioned at the suppression hearing, failed to remember if
Rosado stated that he understood the Miranda warnings. Rosado also contends
that his June 8 statements, which preceded his arraignment by about three and

one half hours, were inadmissible as the product of an unreasonable prearraignment delay. We do not agree with either contention, and therefore, we
affirm the findings of the court below.
26

While it is true that the government has the burden of demonstrating that a
defendant has knowingly waived his Fifth and Sixth Amendment rights,
Miranda v. Arizona, 384 U.S. at 475, 86 S.Ct. at 1628, both the Supreme Court
and this circuit have recognized that an express statement by the defendant is
not necessary to establish such a waiver. North Carolina v. Butler, 441 U.S.
369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); United States v. Boston, 508 F.2d
1171 (2d Cir.1974), cert. denied, 421 U.S. 1001, 95 S.Ct. 2401, 44 L.Ed.2d 669
(1975). As the Supreme Court stated in Butler, "in at least some cases waiver
can be clearly inferred from the actions and words of the person interrogated."
441 U.S. at 373, 99 S.Ct. at 1757. Here, with reference to the June 6th
statements, the district judge found that Rosado had waived his Miranda rights
despite the agent's inability to recall whether Rosado stated he understood the
warnings. The judge stated:

27

At the hearing, Rosado impressed me as a man well capable of understanding

his rights and asserting them. Far from being the pliant victim which he asserts
in his moving papers, it is clear that he understands his rights and was in full
command of his faculties when he made the statements which he now seeks to
suppress.

28

526 F.Supp. at 174. Also, the district judge found that there was no credible
evidence that "Rosado was coerced into making any statements through
physical or mental abuse," or that he was "subjected to protracted
interrogation." Id. The district judge found that Rosado had voluntarily waived
his right to remain silent; this was supported by his evaluation of the actions
and words of the accused, and was not clearly erroneous.8 See United States v.
Isom, 588 F.2d 858, 862 (2d Cir.1978); United States v. Burgos, 579 F.2d 747,
750 (2d Cir.1978); United States v. Boston, 508 F.2d at 1175.

29

Appellant's argument concerning the June 8 statements presents a different

issue. Rosado contends that his statements to the Assistant United States
Attorney, given two days after his arrest, should have been suppressed because
of an unreasonable weekend pre-arraignment delay which is proscribed by
Fed.R.Crim.P. 5(a) and 18 U.S.C. Sec. 3501(c) (1976). We agree with Judge
Duffy's finding that there was no purposeful postponement of arraignment, and
no lengthy, hostile, or coercive interrogation which caused the appellant
prejudice. Therefore, we affirm the judge's denial of the motion to suppress the
June 8 statements.

30

This court has recognized that a lapse of hours between arrest and arraignment,
standing alone, does not require the exclusion of a statement made during the
period. See, e.g., United States v. Isom, 588 F.2d at 862; United States v.
Burgos, 579 F.2d at 750; United States v. Collins, 462 F.2d 792, 795-96 (2d
Cir.), cert. denied, 409 U.S. 988, 93 S.Ct. 343, 34 L.Ed.2d 254 (1972); United
States v. Marrero, 450 F.2d 373, 376-78 (2d Cir.1971), cert. denied, 405 U.S.
933, 92 S.Ct. 991, 30 L.Ed.2d 808 (1972); United States v. Price, 345 F.2d 256,
261-62 (2d Cir.), cert. denied, 382 U.S. 949, 86 S.Ct. 404, 15 L.Ed.2d 357
(1965). In Marrero, we stated that "[i]t is not the lapse of time but the use of the
time, when the commissioner or magistrate is unavailable, to employ the
condemned psychologically coercive or third degree practices [of interrogators]
which is proscribed." 450 F.2d at 376. Although section 3501(c) speaks of
delays no greater than six hours between arrest and arraignment, the length of
pre-arraignment delay is but one of the factors to employ in evaluating the
voluntariness of a confession. Id. at 378. Here, the district court found that there
was no evidence that Rosado was subjected to protracted interrogation or
threatened or cajoled into making a statement to the government's attorney. On
Saturday, June 6, Rosado was not subjected to any undue questioning after his
arrest processing; he was not questioned at all on June 7; and he was only
questioned by the government's attorney for 30 minutes on Monday, June 8.
Hence, the district court's finding, with reference to the delay issue, that
Rosado's statements on June 8 were voluntary acts and not the product of a
lengthy or hostile interrogation, was not clearly erroneous.

31

Rosado also contends that the district court misinterpreted Fed.R.Crim.P. 5(a)
when it found that an arraignment of the appellants on the day of arrest was
impractical. Rule 5(a) states that "[a]n officer making an arrest ... without a
warrant shall take the arrested person without unnecessary delay before the
nearest available federal magistrate or, in the event that a federal magistrate is
not reasonably available, before a state or local judicial officer authorized by 18
U.S.C. Sec. 3041." Rosado contends that a Saturday arraignment was not
impracticable since he could have been arraigned before either a state or local
judge, or in the alternative, before the same district judge who granted the
warrants to search appellants' apartment and the blue canvas bag found in
appellants' automobile.

32

Clearly, the preferable course would have been compliance with Rule 5(a) and
section 3501(c). Since it is undisputed that the Rule was not complied with, we
must determine what, if any, prejudice the defendant suffered by reason of the
delay. Rosado's responses to the questioning on June 8 consisted not of a
confession but rather of exculpatory statements. He stated that he had gone to
the Holiday Inn on June 6 to meet a Mexican interested in selling gold, not

drugs. He stated that he did not have a job, that he did not take drugs, and that
he did not own a safe deposit box. These statements, by themselves, did not
implicate the appellant in any wrongdoing and did not cause prejudice to his
defense. In light of the obvious concern about coercion contemplated by the
Supreme Court in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87
L.Ed. 819 (1943); Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1
L.Ed.2d 1479 (1957), and their progeny, some prejudice to the defendant must
be demonstrated as a part of the defendant's effort to have his statements
suppressed due to pre-arraignment delay. We do not find such prejudice in this
case; consequently, the failure to observe the arraignment time requirement,
standing alone, does not serve as a sufficient basis to suppress Rosado's
exculpatory statements.
33

Although we agree that the circumstances herein give no indication of a

coercive custodial interrogation, we announce our serious concern that lengthy
delay could, under different circumstances, be used for unlawful and coercive
interrogation, as well as deny a defendant the right to prompt arraignment.
There is authority for the proposition that lodgng "overnight" does not
constitute unnecessary delay in arraignment, United States v. Isom, 588 F.2d at
862-63; United States v. Ortega, 471 F.2d 1350, 1362 (2d Cir.1972), cert.
denied, 411 U.S. 948, 93 S.Ct. 1924, 36 L.Ed.2d 409 (1973); United States v.
Marrero, 450 F.2d at 378. Nevertheless, although we feel constrained by the
holding of Marrero and its progeny, our discomfort increases in direct
proportion to the length of "necessary" pre-arraignment delay attributable to the
unavailability of a judicial officer, even on weekends.

34

Still, it is clear to us that, except for the quite reasonable periods of time
actually spent in processing and in routine questioning, the hours between
arrest and arraignment herein were spent mainly in lodging at the MCC while
awaiting arraignment. We hold therefore that, on this occasion, the delay was
not "unnecessary" for purposes of Fed.R.Crim.P. 5(a) nor "unreasonable" for
purposes of 18 U.S.C. Sec. 3501(c). The statements made to the prosecutor on
June 8 were thus properly admitted at trial.

D. Bruton Evidence
35

Rubio claims that she was deprived of her constitutional right to confront a
witness against her, when the district court admitted a DEA agent's testimony
of Rosado's post-arrest exculpatory statements which referred to her. The
challenged testimony consisted of Rosado's statement that Rubio and Rosado
were at the Holiday Inn on June 6 for a weekend vacation, and that Rubio was
going to use the triple beam scale and the Clorox to do some cooking and

cleaning while they were there. Rubio argues that it was error under Bruton v.
United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), to admit
these statements into evidence, since the jury could have inferred that the
statements by Rosado, if found to be false, were made to conceal improper
conduct by herself. We find this argument meritless.
36

At the time the DEA agent's testimony was introduced and again in his charge
to the jury, the district judge instructed the jury to consider such statements
only with respect to Rosado and to disregard them as to Rubio. The judge also
gave an instruction to the jury on the rationale of offering allegedly false
exculpatory testimony at trials. The Supreme Court in Bruton has indicated that
such a careful foundation and curative instruction, although ineffective against
"powerfully incriminating" statements, may be effective in less severe
circumstances. Id. at 135, 88 S.Ct. at 1627. This court has also held that
cautionary instructions will avoid a Bruton confrontation issue unless the
admitted evidence is "clearly inculpatory" as to the complaining co-defendant
and is "vitally important to the government's case." United States v. Wingate,
520 F.2d 309, 313 (2d Cir.1975), cert. denied, 423 U.S. 1074, 96 S.Ct. 858, 47
L.Ed.2d 84 (1976) (quoting United States v. Catalano, 491 F.2d 268, 273 (2d
Cir.), cert. denied, 419 U.S. 825, 95 S.Ct. 42, 42 L.Ed.2d 48 (1974)); see also
United States v. Burke, 700 F.2d 70, 85 (2d Cir.1983); United States v. Marin,
669 F.2d 73, 83 (2d Cir.1982); United States v. Perry, 643 F.2d 38, 51 (2d
Cir.), cert. denied, 454 U.S. 835, 102 S.Ct. 138, 70 L.Ed.2d 115 (1981); United
States v. Knuckles, 581 F.2d 305, 313 (2d Cir.), cert. denied, 439 U.S. 986, 99
S.Ct. 581, 58 L.Ed.2d 659 (1978).

37

Rosado's statements clearly were not inculpatory as to Rubio; nor is this a case
where a defendant has attempted to shift blame to a co-defendant. See United
States v. Garris, 616 F.2d 626, 630 (2d Cir.), cert. denied, 447 U.S. 926, 100
S.Ct. 3021, 65 L.Ed.2d 1119 (1980). Moreover, nothing new or incriminating
was presented to the jury which had not already been presented through the
testimony of Agent Castillo, who testified with regard to Rubio's presence at
the Holiday Inn and the fact that she had shown him both the scale and the
bottle of Clorox. Therefore, since we find Rosado's statements as to Rubio to be
non-inculpatory, we see no reason why the jury could not have received the
evidence without an impermissible taint affecting their judgment. Further, the
limiting instructions given were sufficient to cure any prejudice to Rubio which
may have been caused by admitting Rosado's statements into evidence.

38

The remaining claims on appeal relating to ministerial defects in search

warrants procured for the appellants' apartment, safe deposit boxes and the
trunk of their car, were thoroughly discussed and properly dismissed by the

district court. United States v. Rubio, 526 F.Supp. 171 (S.D.N.Y.1981). We

affirm the findings of the court below and hold that the defects, largely
inadvertent and due to carelessness, do not merit the severe remedy of
suppression.
39

The judgments of conviction are affirmed.

The Honorable Thomas E. Fairchild of the United States Court of Appeals for
the Seventh Circuit, sitting by designation

Special Agent Castillo testified at trial that a triple beam scale was a "very
precise" instrument of measurement used by narcotics traffickers to weigh
cocaine in grams. The agent also testified that the use of Clorox bleach was "an
old method" of testing the purity of cocaine

Arraignments on Saturdays in the United States District Court for the Southern
District of New York generally occur before a United States Magistrate until
noon. Arraignments do not occur again until 10:00 a.m. Monday. S.D.N.Y.
Rule 3 (R.Div.Bus.Dist.J.)

The original indictment, filed June 16, 1981, charged defendant Rosado in
Count Two with possession with intent to distribute a quantity of heroin, in
violation of Title 21 U.S.C. Secs. 812, 841(a)(1) and 841(b)(1)(A). At the close
of the government's case, the charge was modified to simple possession

Trial of Rubio and Rosado began on December 17, 1981, before Kevin T.
Duffy, District Judge, and a jury. The trial ended in a mistrial on January 12,
1982, when the jury was unable to reach a verdict. Judge Duffy also conducted
the September 21, 1981 hearing on appellants' pre-trial motions. Appellants'
second trial was held before Judge Sprizzo, who considered himself bound by
Judge Duffy's rulings on the pre-trial motions

The government entered into a stipulation which documented Collazo's

criminal record. The substance of that stipulation is as follows: In 1973,
Collazo was arrested in Puerto Rico for the crime of bigamy. That same year,
he stole a sum of money from an employer in Puerto Rico and fled to Miami,
Florida, where he was arrested on April 3, 1973, and charged with interstate
transportation of stolen property. Collazo was prosecuted in Puerto Rico for the
above federal charge and on local charges of abuse of trust. While free on bail,
Collazo fled to the United States. He was rearrested in New Haven,
Connecticut, on November 21, 1973, and returned to Puerto Rico for
sentencing. Collazo was sentenced in 1974 but escaped from confinement after

serving two years of a seven to nine year sentence. In July 1977, he was
arrested in Houston, Texas, for unlawful flight to avoid confinement and was
returned to Puerto Rico. In November 1977, Collazo again escaped from a
Puerto Rico prison and remained at large until he was arrested by Agent
Castillo on December 1, 1981
6

On April 28, 1982, Judge Sprizzo sentenced Rubio to five years' imprisonment
on Count One, suspended imposition of sentence on Count Three and placed
Rubio on probation for a five year period to begin upon her release from prison.
He sentenced Rosado to five years' imprisonment on Count One, and one year
of imprisonment on Count Two, to run concurrently, and suspended imposition
on Count Four and placed Rosado on probation for five years to commence
upon his release from prison

The trial judge made an oral ruling that the names and locations of the DEA
agent and the Assistant United States Attorney who contacted the prosecutor in
Puerto Rico be omitted from the record in order to preserve the integrity of an
on-going investigation

The record reveals that Rosado also testified that he was 37 years old, a high
school graduate, and a decorated veteran of the Vietnam war while in the
Marine Corps