Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 72 CR 946 RICHARD W. MCLAREN, Judge.
Fairchild, Cummings, and Pell, Circuit Judges.
The three defendants, Wilton Torres, Juan DeLeon, and Gloria Diaz, were indicted with two others,*fn1 for possessing with intent to distribute and distributing cocaine and for a conspiracy to do so, in violation of 21 U.S.C. §§ 841(a) (1) and 846. After a jury trial, these defendants were convicted on both counts. Torres and DeLeon received five-year sentences and Diaz was sentenced to five years under the provisions of 18 U.S.C. § 4208(b).
Viewed most favorably to the Government, the evidence at trial showed that Steve Campbell, a special employee of the Bureau of Narcotics and Dangerous Drugs ("Bureau") told Francis Tucci, an agent of the Bureau, that if he met Holzinger, Tucci would be able to purchase a pound of cocaine. Accordingly, Tucci visited Holzinger on August 23. Holzinger thought that Tucci was a partner in a cocaine operation. Tucci was told by Holzinger that he was making arrangements to meet Torres the next day to procure a pound of cocaine.
On August 24, Tucci accompanied Holzinger to the residence of Wilton Torres, described by Holzinger as his supplier. Upon inquiry, Torres told Tucci that after Torres received a phone call he would sell Tucci a pound of cocaine for $10,000. Torres then told Tucci that he was going to meet "with his people" and it would be best for Tucci to return at 6:00 p.m. to complete the deal. Tucci agreed to return to the Torres apartment later.
At the 6:00 p.m. rendezvous, Torres told Holzinger that they would have to see a couple of people about procuring the pound of cocaine. They went to see Juan DeLeon and found him outside his home in his car. Holzinger was told by Torres that he was going to talk to his connection, and Torres and De Leon then disappeared into the latter's home.
Soon afterwards, Torres and DeLeon returned outside and walked toward Torres' auto. Torres told Holzinger they would not be able to obtain a pound of cocaine but possibly could obtain two ounces. Holzinger then called Tucci at Torres' apartment to see if Tucci was willing to purchase two ounces. Diaz answered Torres' phone and Holzinger asked to speak to Tucci. Diaz gave Tucci the phone and Holzinger told him he could not obtain the pound of cocaine but had a couple of ounces to sell. Tucci told both Holzinger and Torres that he would wait until a pound became available.
On September 8, Tucci telephoned Holzinger. Holzinger said that Wilton Torres was ready to sell Tucci a pound of cocaine. Tucci and Holzinger met that afternoon and drove to Torres' apartment, where Diaz and Torres were present. Torres asked Tucci if he was ready to buy the cocaine and received an affirmative reply, and Tucci was again told by Torres that the price would be $10,000 a pound. Torres gave Tucci a small sample of the cocaine and told him to return at six o'clock to consummate the deal. As Tucci was leaving Torres' apartment, Diaz said she was certain the deal would go through and that Tucci was not a policeman. When Tucci returned to Torres' apartment at 6:00 p.m., Diaz told him that Holzinger and Torres had left. Torres later called Tucci at Torres' apartment. Torres told Tucci that he could not settle the deal until 9:00 p.m., and Tucci then backed out, apparently because of the delay.
On September 14, Tucci called Holzinger about the purchase of the pound of cocaine from Wilton Torres. Holzinger replied that final arrangements had been made for the sale. Therefore, on the following day, Tucci met in his car with Holzinger and went to a Chicago intersection around noon. Holzinger left the car and walked out of view for five minutes. When Holzinger returned, both stood by the car for a few minutes until Diaz came and escorted them into a basement apartment at 1434 North Ashland Avenue in Chicago.
In the apartment, Wilton Torres asked Tucci if he had the money and told Tucci the cocaine was due shortly. Soon thereafter, DeLeon and Manuel Torres entered the apartment. The Torreses and DeLeon left the living-room and DeLeon handed a package to Wilton Torres in the kitchen. Wilton Torres then walked into the living-room and handed Tucci a small package containing some white powder, stating that it was a sample of the pound he was prepared to sell Tucci. Wilton Torres then asked Tucci to go outside and obtain the money and bring it inside. Tucci said that he would not bring the money inside the apartment because the large number of people inside the apartment might rob him. Diaz assured Tucci that they were not going to rip him off, that they only intended to sell him cocaine. DeLeon insisted that the sale be conducted inside the apartment to reduce the chance of arrest. Tucci threatened to leave if the deal were not conducted outside. Wilton Torres then stated that if the deal were conducted outside, Holzinger would have to remain inside as a hostage with Manuel Torres. DeLeon agreed to this proposal. Tucci, DeLeon and Wilton Torres then left the apartment while Diaz remained inside with Holzinger and Manuel Torres.
Tucci accompanied Wilton Torres to his car where they stood until they were approached by DeLeon and one Thomas Nieves, a non-defendant.*fn2 Nieves handed a blue bag to Torres, who extracted a clear plastic bag therefrom and stated to Tucci "Here is the cocaine, where is my money?" Tucci then took the cocaine and signaled other agents of the Bureau and announced that defendants were under arrest. DeLeon and Nieves started to run away but were caught and arrested. Wilton Torres and the three who remained in the apartment were also arrested.
Defendant Diaz first contends that a mistrial was necessary because of the district judge's remarks when she failed to appear at the afternoon session on the second day of the trial. Her counsel explained to the court that he did not know Diaz' whereabouts and speculated that her absence might be because of her roommate's pregnancy. The court then announced in the jury's absence: "We will go forward with the trial. I will tell the jury that Miss Diaz has been unavoidably detained and has waived her privilege to be here and the trial will continue." Counsel for Diaz then stated, "All right, your Honor." Then he made an oral motion for a mistrial and severance. The motion was promptly denied and the court stated it hoped that Diaz would be present on the following day.
After government counsel pointed out that Diaz had been an hour late on the initial trial date and was presently four hours late on the second day of the trial, he requested that a bench warrant issue and that her bond be forfeited. The court agreed that a bench warrant should issue and said that it would deal with the ...