Osvaldo Lugo v. United States

This is an appeal by the named appellant from his conviction on three counts (II, III and IV) of a four count indictment. He was sentenced to five years on Count II, and placed on probation on Counts III and IV for five years, consecutive to Count II. The jury had also convicted appellant on Count I (conspiracy to smuggle four grams of heroin), but the trial judge set aside that verdict. Counts II and III charged appellant with aiding and abetting the codefendant, Jose de la Rosa, in smuggling and concealing two ounces of heroin ( 18 U.S.C. § 2 ; 21 U.S.C. § 174 ), and Count IV charged him with concealing and transporting the four grams of heroin mentioned in Count I ( 21 U.S.C. § 174 ).

Jurisdiction below rested on 18 U.S.C. § 3231 , and on appeal on 28 U.S.C. § 1291 .

This was a second trial. At the first, on November 16, 17 and 18, 1965, the codefendant de la Rosa asked for a severance of his case, which was granted. He then pled guilty to Count II, and testified against appellant on his first trial.

Such testimony occurred after de la Rosa had been sentenced to fifteen years in prison. The trial judge first had ascertained de la Rosa had previously stated to government…