Petition — Carter v. United States
Supreme Court brief1976
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| Surrem Court, U. &
klik D
IN THE OCT 26 1975
Supreme Court of the United Staten n cre |
October Term, 1976
K 46-582 {
JAMES W. CARTER,
Petitioner,
—v.—
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT
EDWARD GASTHALTER, ESQ.
Attorney for Petitioner
James W. Carter
477 Madison Avenue
New York, New York 10022
(212) 688-7788
Of Counsel:
JOHN L. POLLOK
TABLE OF CONTENTS
PAGE
,s ̃˙ ..... ed Kae 1
I ae aes ee a ae 2
Constitutional and Statu.ory Provisions Involved 2
Question Presented for Review .................. 2
Statement of the Case ................. wrreror? 2
uh 2
DD 3
Reasons for Granting the Writ 4
R ctncsccveccdcecseecccceccccecens 12
APPENDIX A:
Opinion of the Court of Appeals ............ la
APPENDIX B:
Amendment V—Capital Crimes; Double Jeop-
ardy; Self-Incrimination; Due Process; Just
Compensation For Property .............. 34a
APPENDIX B(1):
Federal Rules of Criminal Procedure, Title 18
% ˙ ˙ 4004644004000 54 00 bar ees 35a
APPENDIX B(2):
Judiciary and Judicial Procedure, Title 28 U.S.C. 36a
ii iii
TABLE OF CASES CITED STATUTES
PAGE PAGE
Brown v. United States, 380 F.2d 477 (10th Cir., Title 21, United States Code:
1967) Coe ee oe ee „„ „„ „„ „„ „„ 12 § %% b ͤ CAA ee 3
Chapman v. California, 386 U.S. 18 (1966) ...... 9 P 3
Hardy v. United States, 343 F.2d 233 (D.C. Cir., CCC 3
1964) (en banc) ; cert. den., 380 U.S. 964 (1965) 12 | § 841 (a) (1) 3
| T.. ((
Krulewitch v. United States, 336 U.S. 440 (1948) 11 | § 952(a) 3
Lawrence v. United States, 357 F.2d 434 (10th Cir., | eee, ee see
E 12 | $960(a) ([ „% — 8
Maestes v. United States, 341 F.2d 493 (10th Cir., Title 28, United States Code:
TÄ tases LORAIN 11 PVP .
Michaelson v. United States, 335 U.S. 469 (1948) ... 10 § 2111 2. 11
Sumrall v. United States, 360 F.2d 311 (10th Cir. 8 ö
%% ³·˙Üͤ³ . = cases 11 CONSTITUTIONAL’ PROVISIONS
Tallo v. United States, 344 F. 2d 467 (Ist Cir., 1965) 11 Federal Rules of Criminal Procedure, Rule 52(a) .. 2,11
United States v. Christian, 427 F.2d 1299 (8th Cir., Constitution of the United States, Fifth Amendment 2
1970), cert. den., 400 U.S. 909 (1970) ....... 12
United States v. Gray, 468 F.2d 257 (3rd Cir., 1972) 11
United States v. Plante, 472 F.2d 829 (lst Cir.,
1973), cert. den., 411 U.S. 950 (1973) ........ 12
United States v. Rinaldi, 301 F.2d 576 (2nd Cir.,
DD ci) bag dubbansesseGebeeekenbes sens cee 11
United States v. Rudolph, 403 F.2d 805 (6th Cir.,
%%% ͤͤ 11
United States v. Smith, 403 F.2d 74 (6th Cir., 1968) 12
United States v. Stromberg, 268 F.2d 256 (2nd Cir.,
1959), cert. den., 361 U.S. 863 (1959) ....... 12
IN THE
Supreme Court of the United States
October Term, 1976
NM o.
JAMFS W. CARTER,
Petitioner,
—V.—
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT
James W. Carter prays that a Writ of Certiorari
issue to review an Order of the United States Court of
Appeals for the Second Circuit entered September 27,
1976, which affirmed the judgment of conviction herein
previously entered against the Petitioner in the United
States District Court for the Eastern District of New
York on December 5, 1975.
Opinion Below
Following the entry of judgment in the District Court,
Petitioner appealed to the Court of Appeals. The as yet
unreported opinion of the Court of Appeals is printed in
Appendix A hereto at page Ila.“
* The following abbreviations are used in this Petition:
“a” is a reference to Petitioner’s Appendix which is annexed
hereto;
„R“ is a reference to Appellant’s Appendi-y submitted to the
Court of Appeals;
T“ is a reference to the testimony and rulings of the District
Court during trial.
2
Jurisdiction
The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
Constitutional And Statutory Provisions Involved
This case involves the “due process of law” clause of
the Fifth Amendment to the Constitution of the United
States; Rule 52(a) of the Federal Rules of Criminal
Procedure; and 28 U.S.C. § 2111, all of which are fully
set forth in Appendix B (34a).
Question Presented for Review
Did the Court of Appeals apply an erroneous standard
of review when, despite its specific finding that undeni-
able error had been committed when a Government wit-
ness in a federal narcotics prosecution mentioned in the
presence of the jury, despite being admonished not to,
that Petitioner had a pending State narcotics case, it,
nevertheless, affirmed a judgment convicting Petitioner of
conspiring to violate the narcotics laws of the United
States?
Statement of the Case
a) The Indictment.
On January 29, 1975, indictment 75 Cr. 72 was filed
in the United States District Court for the Eastern Dis-
trict of New York upon which the Petitioner and thirteen
others were tried before Mishler, Ch. J., and a jury.
(R. 17-22).
3
Count I, the only count of the nine count indictment in
which Petitioner was named, charged that from Septem-
ber, 1968, up to and including January 29, 1975, within
the Eastern District of New York, the Petitioner conspired
to violate prior to May 1, 1971, sections 173 and 174 of
Title 21, United States Code, and to violate on and after
May 1, 1971, sections 812, 841 (a)(1), 952 (a) and
960 (a) (1) of Title 21, United States Code (R. 18).
b) The Evidence at Trial.
In essence, the Government’s proof at trial established
the existence of a conspiracy to import and distribute
heroin and cocaine during the period from 1968 through
1975, consisting of what the Court of Appeals chose to
describe as “the not uncommon structure of receivers, dis-
tributors, carriers for sub-organization and suppliers of
dilutents used in the “cutting of narcotics” (5a). More
particularly, it was alleged that the Petitioner acted as
receiver and distributor of the narcotics in the State of
Maryland.
Typically, the Government’s proof at trial included,
inter alia, the testimony of several alleged accomplices
who allegedly participated in the narcotics conspiracy; tes-
timony of law enforcement officers as to their alleged
surveillance of the conspiracy; tapes of conversations be-
tween individuals alleged to be informants and members
of the alleged conspiracy; evidence exhibiting substantial
expenditures by members of the alleged conspiracy with-
out visible means of support; and seized evidence and
contraband.
Petitioner did not testify at trial nor did he offer any
witnesses or evidence in his behalf.
4
After a ten week trial, the jury convicted the Peti-
tioner.* He was sentenced to a jail term of fifteen years
and a special parole term of five years (4a).
REASON FOR GRANTING THE WRIT
At the very beginning of the trial, even before any
witnesses had been called, the Prosecutor informed the
District Court that he wished to “alert” Petitioner’s trial
counsel to the “problem” that a witness who would later
testify for the Government (Norman Lee Coleman) had
discussions with the Petitioner “about cases he (the Pe-
titioner) had pending in Baltimore”. More particularly,
the following colloquy took place between the Prosecutor
and the District Court:
“Mr. De Petris: One of my witnesses testified
to a question that he met the defendant in Dan-
bury or somewhere. That came out after an en-
tire day of trial. We were the only one in the
Court room.
There was a day off, one of the judges died and
I recall that very well. I might also add that with
respect to Mr. Coleman’s testimony, I just wanted
to alert Mr. Stone to the problem, Mr. Coleman
has had many conversations with Mr. Carter con-
cerning narcotics and during the conversations
there have been—there were discussions about
cases he had pending in Baltimore, about payoffs
he made to the district attorney’s office and various
other things in Baltimore.
I have instructed my witness to avoid discussing
it. I have to alert Mr. Stone in his questions in
opening the door.
* Of the thirteen defendants who went to trial, eight were
convicted and five were acquitted. Two defendants pleaded guilty
prior to trial Three others were, and still are, fugitives. (4a).
5
The Court: If he asks’ the question that reason-
ably requires a response, he will get it.
You have alerted your witnesses not to answer
unless the question asks for it.
Mr. De Petris: Yes, your Honor.” (emphasis
supplied, T. 47-48).
Despite the unequivocal representation by the Prosecu-
tor that his witnesses had been advised not to mention
the pending State case in Baltimore against the Peti-
tioner, the record reflects that on at least two occasions
mention of that pending case was made before the jury.
The first instance took place during the direct-exami-
nation of the cooperating witness Coleman as indicated
by the following testimony:
“Q. What happened when you met with Mr.
Carter?
A. We went to a couple of houses looking for
a fellow by the name of Chief, and after he found
him we stood there and talked for a while.
I told him that I heard that Frank had been
down, and he said yeah he was down over the week-
end.
I asked if there were any drugs available, and
he said no, he had some killer coke.
He had what?
Killer coke.
What does that mean?
Good coke.
What else was said?
. He was going into detail about the trial he
had, you know, in Baltimore, a State case.” (em-
phasis supplied, T. 254-255).
FeS r Or
6
On the second occasion, mention of a pending narcotics
case against the Petitioner in the State of Maryland was
made to the jury by Special Agent Louis Candell of the
Drug Enforcement Administration—an experienced wit-
ness—while he was testifying for the Government on di-
rect-examination. Agent Candell thus stated:
“A. (Continuing) At this point Mr. Carter is
talking to Mr. Coleman and he told him that he
didn’t have or forgot his money and he is asking
Mr. Coleman to lend him some money and Mr.
Coleman says he has about $100 on him and Mr.
Carter asks Coleman for $20.
(Tape played.)
| A. (Continuing) Mr. Coleman asked Mr.
Carter, he said, ‘When are you going to be ready
to do something’ and as I said earlier, Mr. Carter
didn’t respond specifically to that question. He
began to engage in a conversation about a pend-
ing narcotics case that he had against him in the
state of Maryland—” (emphasis supplied, T. 1805-
1806) .*
Immediately after both outbursts, trial counsel for
the Petitioner moved for a mistrial only to have his re-
* At the time he made the statement, Agent Candell was
testifying to a recorded conversation he had listened to which
allegedly took place between the Petitioner and Government witness
Coleman. Most significantly, it appears that although there was
reference to a “pending case” against the Petitioner on the
tape, there was no mention that the case concerned narcotics.
Trial counsel for the Petitioner thus stated to the District Court:
“Certainly on the original recording I had, 3506, it wasn’t on the
tape. I was never able to hear it on the tape;” and even the
Prosecutor, when queried by the District Court as to whether
the tape said “narcotics case”, conceded that: “J didn’t hear it
but he is testifying that this refreshed his recollection as to what
was said”. (T. 1806-1807).
7
spective requests denied by the District Court (T. 255-
256, 1806-1810). The following colloquy between the
District Court, the Prosecutor and trial counsel after
Agent Candell’s wholly unnecessary comment is particu-
larly germane herein:
“The Court: Were you advised not to discuss
the nature of the charge in the Baltimore case, the
state case?
The Witness: I don’t remember having been
so, your Honor.
Mr. De Petris: Your Honor, it was discussed
with Agent Nelson and Agent Bradley and Agent
Candell was in the room, all three were together
when we were discussing what was not to be talked
about.
I do not recall specifically saying it to him but
I remember he was there and this was all dis-
cussed at the same time when the agents arrived
yesterday or the day before. I don’t recall which
day.
The Court: I am going to deny the motion.
I understand the significance of it all but I am
going to deny the motion.
I will take any charge you want me to give
the jury—
Mr. Stone: I don’t think any corrective charge
can correct the situation. It would further ac-
centuate it.
The whole purpose of your admonition and my
questions at the beginning of the trial was to avoid
the problem.
I believe you mentioned on at least two occa-
sions to the United States Attorney, to please ad-
vise his agents.
8
I have been careful in getting certain ques-
tions to certain witnesses and I asked to have the
jury excused. If I thought I would border on that
type of question.
The Court: Your fondest hope was realized,
nevertheless.
What have you got to say about it? It is a
serious problem.
Mr. De Petris: Yes.
I think if your Honor would charge the jury to
disregard that in view of the length of the trial
and the amount of time and length of this trial, it
would have little effect if any. I believe they will
forget it.
The Court: I will believe it will have little
effect too but on the record as it is, that he had a
pending narcotics charge it appears to be serious
error.
However, Mr. Stone says if I mention it it will
just emphasize it. That’s his position.
Of course, there has been testimony in the case
that he was surveilled and followed to a court-
house.
You insist I say nothing about it?
Mr. Stone: I think it would accentuate it.
I made my application.
The Court: Second choice. I am not about
to let Mr. Carter out after this much of the trial
and if the Court of Appeals, in the event of con-
viction, finds it reversible error, let them do it.
Mr. Stone: I have no second choice. That’s
the only application I make.
The Court: Mr. Stone has no second choice,
9
I would appreciate your advising all the wit-
nesses specifically concerning this and any other
defendants on trial.” (T. 1806-1810, 1815-1817).
In considering the issue on appeal, the Court of Ap-
peals stated as fellows:
“Undeniably, the reference to Carter’s pending in-
dictment in Maryland in the jury’s presence con-
stituted error” (28a).
Despite its conclusion that “undeniable error“ had been
committed, the Court of Appeals, nevertheless, proceeded
to affirm the judgment of conviction as to the Petitioner
on the basis that “the error must be deemed harmless”
(28). This facile conclusion by the Court of Appeals,
we submit, is erroneous and cries out for review by this
Court. Chapman v. California, 386 U.S. 18 (1966).
The compelling and inevitable effect of the unfortunate
and unnecessary comments by the Government’s witnesses
—whether such comments be considered inadvertent or
not—after the witnesses had been specifically admonished
to refrain from making such comments before the jury—
was to indelibly imprint upon the jury that (a) the Peti-
tioner had a pending case in Maryland; and (b) that the
pending case concerned narcotics. Given the fact that
the Petitioner was being tried on an indictment charging
him with violation of the narcotics laws of the United
States, the gratuitous statements of the Government wit-
nesses—especially the testimony of experienced Agent
Candell—were tantamount to nails in a coffin designed to
forever seal the Petitioner’s fate in the eyes of the jury.*
* While it is true, as the Government argued, and the Court
of Appeals noted, that Agent Candell did not speak of a “convic-
tion on a narcotics charge,” the irrefutible fact remains that the
jury had been made aware that the Petitioner had a pending
case and that that pending case concerned the very crime for
which they were selected to be triers of the facts—narcotics!
10
Perhaps the concept was best enunciated by Mr. Jus-
tice Jackson speaking for this Court in Michaelson v.
United States, 335 U.S. 469, 472 (1948) when he stated
the rationale, in terms of practical experience“, against
permitting juries to consider evidence of the “propensities”
of a defendant to establish a probability of his guilt.
“Courts that follow the common-law tradition
almost unanimously have come to disallow resort
by the prosecution to any kind of evidence of a
defendant’s evil character to establish a probability
of his guilt. Not that the law invests the defend-
ant with a presumption of good character. Greer
v. United States, 245 U.S. 559, [38 S.Ct. 209, 62
L.Ed. 469], but it simply closes the whole matter
of character, disposition and reputation on the
prosecution’s case-in-chief. The State may not show
defendant’s prior trouble with the law, specific
criminal acts, or ill name among his neighbors,
even though such facts might logically be persuasive
that he is by propensity a probable perpetrator of
the crime. The inquiry is not rejected because
character is irrelevant; on the contrary, it is said
to weigh too much with the jury and to so over-
persuade them as to prejudge one with a bad gen-
eral record and deny him a fair opportunity to
defend against a particular charge. The overrid-
ing policy of excluding such evidence, despite its
admitted probative value, is the practical experi-
ence that its disallowance tends to prevent confu-
sion of issues, unfair surprise and undue preju-
dice.“ (emphasis supplied)
In short, as a result of the erroneous comments complained
of herein, the Petitioner was denied a fair trial and due
process of law as guaranteed him by the Fifth Amend-
ment to the Constitution of the United States. Simply
11
put, in light of “practical experience”, this was not “harm-
less error”. (c.f.) Rule 52(a) of the Federal Rules of
Criminal Procedure; and 28 U.S.C. 2111.
Nor could the overwhelming effects of the repeated
prejudicial comments be vitiated by curative instructions
which Petitioner’s trial counsel, in any event, refused
for fear of accentuating the prejudice (R. 1817). More-
over, the record reflects that the District Court, on its
own motion, never ordered the jury to disregard the er-
roneous comments.
As to cautionary instructions, the appellate courts
have properly noted that “i(t) must be remembered that
after the saber thrust, the withdrawal of the saber still
leaves the wound.” United States v. Rudolph, 403 F.
2d 805, 807 (6th Cir., 1968). United States v. Gray, 468
F. 2d 257, 260 (3rd Cir., 1972) (en banc).
To the same effect, is the statement of Mr. Justice
Jackson in his concurring opinion in Krulewitch v. United
States, 336 U.S. 440, 453 (1948).
“The naive assumption that prejudicial effects can
be overcome by instructions to the jury... all
practicing lawyers know to be unmitigated fiction.”
This Petition thus raises a fundamental issue in the
administration of appellate review of federal convictions
which convictions are concededly tainted by error. It is
submitted that, in confronting this recurring issue the
federal appellate courts are hopelessly in conflict and lack-
ing authoritative guidance from this Court.
Compare, for example, Swmrall v. United States, 360
F. 2d 311 (10th Cir., 1966); Tallo v. United States, 344
F. 2d 467 (1st Cir., 1965) ; Maestes v. United States, 341
F. 2d 493 (10th Cir., 1965); United States v. Rinaldi,
12
301 F. 2d 576 (2nd Cir., 1962) ; United States v. Smith,
403 F. 2d 74 (6th Cir., 1968) ; Lawrence v. United States,
357 F. 2d 434 (10th Cir., 1966); with United States v.
Stromberg, 268 F. 2d 256 (2nd Cir., 1959), cert. den.,
361 U.S. 863 (1959); Hardy v. United States, 343 F. 2d
233 (D.C. Cir., 1964) (en banc); cert. den., 380 US.
964 (1965) ; Brown v. United States, 380 F. 2d 477 (10th
Cir., 1967); United States v. Christian, 427 F. 2d 1299
(8th Cir., 1970), cert. den., 400 U.S. 909 (1970); and
United States v. Plante, 472 F. 2d 829 (Ist Cir., 1973),
cert. den., 411 U.S. 950 (1973).
This case, we submit, presents a perfect vehicle for
this Court to provide that guidance.
CONCLUSION
For the above reasons the petition for a writ
of certiorari should be granted; the judgment of
conviction should be reversed; and a new trial should
be ordered.
Respectfully submitted,
EDWARD GASTHALTER, Esq.
Attorney for Petitioner
James W. Carter
477 Madison Avenue
New York, New York 10022
(212) 688-7788
Of Counsel:
JOHN L. POLLOK
la
APPENDIX A
Opinion of the Court of Appeals
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
— — <i —
Nos. 1018, 1019, 1023,
1062-1065, 1390 — September Term, 1975.
(Argued July 19, 1976 Decided September 27, 1976).
Docket Nos. 75-1402, 75-1418, 75-1441, 75-1445, 76-1024
— — <i — —
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
— V . — —
BARBARA HINTON, WILLIAM BECKWITH, CHARLES WILLIAM
CAMERON, JAMES W. CARTER, JOHN DARBY, THELMA
DARBY, DAVID BATES and SCARVEY MCCARGO,
Defendants-A ppellants.
— — — —
Before:
WATERMAN, HAys and MESKILL,
Circuit Judges.
— oo ſſ—
Appellants were all charged in one indietment and
were convicted after jury trial in the Eastern District of
New York, Mishler, Ch. J., of having conspired to violate
the federal narcotics laws, 21 U.S.C. §§ 812, 841(a) (1),
846, 960(a) (1) and 963; and four of the eight, Barbara
Hinton, William Beckwith, John Darby, and David Bates,
were also convicted of violating 21 U.S.C. § 843 (b)
2a
Appendix A—Opinion of the Court of Appeals
through the use of the telephone in furtherance of the
objectives of the conspiracy. Upon their several appeals
all the convictions, save that of Barbara Hinton, are
affirmed. The conviction of Barbara Hinton is reversed
and the indictment, as to her, is ordered dismissed.
— — >> — — —
JOEL A. BRENNER, New York, N.Y. (Gino E. Gallina,
New York, N.Y., on the brief), for Defendant-
Appellant Hinton.
IRVING J. BISHOP, Brooklyn, N.Y., for Defendant-
Appellant Beckwith.
LAWRENCE K. FEITELL, New York, N.Y., for De-
fendant-Appellant Cameron.
JOSEPH I. STONE, New York, N.Y., for Defendant-
Appellant Carter.
JEFFREY C. HOFFMAN, New York, N.Y., for De-
fendant-Appellant John Darby.
LESLIE A. BLAU, New York, N.Y., for Defendant-
Appellant Thelma Darby.
HAROLD R. VENOKUR, Brooklyn, N.Y., for Defendant-
Appellant Bates.
GARY R. SUNDEN, New York, N.Y., for Defendant-
Appellant McCargo.
PAUL A. DEPETRIS, Assistant U.S. Attorney (David
G. Trager, U.S. Attorney, Eastern District of
New York, Paul B. Bergman and Alvin A.
Schall, Assistant U.S. Attorneys, on the brief),
for Plaintiff-Appellee.
rt — —
3a
Appendix A—Opinion of the Court of Appeals
WATERMAN, Circuit Judge:
Following a ten week jury trial in the United States
District Court for the Eastern District of New York,
appellants Barbara Hinton, William Beckwith, James
Carter, David Bates, Scarvey McCargo, Charles Cameron,
John Darby, and Thelma Darby were convicted of con-
spiracy to violate the federal narcotics laws, 21 U.S.C.
§§ 812, 841 (a) (1), 846, 960 (a) (1) and 963. Four of
them, Hinton, Beckwith, John Darby, and Bates, were
also convicted of using the telephone to further the con-
spiracy, 21 U.S.C. § 843 (b). In support of their prayers
for reversal, appellants raise a plethora of claims; but,
save one raised by Barbara Hinton as set forth below, we
find these claims to lack merit. Accordingly, we affirm
all of the convictions except the conviction of Barbara
Hinton.
I. Facts
Appellants, and ten other co-defendants, were charged
in Count One of an indictment filed January 29, 1975,
with conspiring between September, 1968, and January,
1975, to import into the United States, and to distribute
and possess with intent to distribute, substantial quanti-
ties of heroin and cocaine. In Counts Two through Nine
of the indictment, many, though not all, of the defendants
were separately charged with using the telephone to fur-
ther the conspiracy charged in Count One.“
Hinton was so charged in two counts, Beckwith in five
counts, John Darby in five counts, Bates in two counts, Thelma
Darby in one count, and Matthews in six counts.
4a
Appendix A—Opinion of the Court of Appeals
Two defendants pleaded guilty prior to trial.“ Three
other defendants, including Frank Matthews, the kingpin
of the narcotics operation, were, and still are, fugitives.’
Of the remaining thirteen defendants who proceeded to
trial before Chief Judge Mishler, five were acquitted by
the jury.“ The eight convicted at trial, all of whom now
appeal their convictions, were each sentenced to at least
two years imprisonment; and, except for John Darby
and Carter, they have all been released pending appeal.
Donald Conner and Walter Rosenbaum. Conner pleaded
guilty to the conspiracy charge and was sentenced to ten years
imprisonment, a special parole term of five years, and a $10,000
fine. Rosenbaum, who testified as a Government witness, pleaded
guilty to a superseding information charging a violation of 21
U.S.C. § 843 (b); and the court suspended the imposition of
sentence, imposing a three year term of probation. The underly-
ing conspiracy charge was dismissed.
’ Gattis Hinton and Fred Brown are the two others yet at
lar ge.
*Robert Currington, Ernest Robinson, James E. Martinez,
Lucy Matthews, and Marzella Steele Webb, named in the con-
spiracy count, were so acquitted.
The judgments of conviction, and the sentences imposed,
were entered against the appellants as follows:
Barbara Hinton—convicted on conspiracy count and on one
telephone count; acquitted on second telephone count. Sentenced
to two years imprisonment and a three year special parole term
on Count 1; to a concurrent two year term of imprisonment on
the telephone count.
William Beckwith—convicted on conspiracy count and one
telephone count. Sentenced to fifteen years imprisonment, a
special ten year parole term, and a $25,000 fine on Count One;
to a concurrent four year prison term on the telephone count.
James W. Carter—convicted on conspiracy count. Sentenced
to fifteen years imprisonment and a five year special parole term.
Scarvey McCargo—convicted on conspiracy count. Sentenced
to five years imprisonment and a five year special parole term.
[Footnote continued on following page]
5a
Appendix A—Opinion of the Court of Appeals
No elaborate recitation of the rather extensive facts
need be given in order to construct a backdrop for the
arguments appellants have raised. In essence, the Govern-
ment’s proof at trial established the existence of a large
narcotics conspiracy operating from 1968 through 1975,
with the not uncommon structure of receivers, distribu-
tors, couriers for sub-organizations, and suppliers of
diluents used in the “cutting” of narcotics.
Frank Matthews, common-law husband of appellant
Hinton, occupied a central position in the operation; and
it was he who principally orchestrated the importation of
drugs from connections abroad, largely from Venezuela.
The drugs were then diluted and packaged at one of the
organization’s drug “mills,” such as the apartment located
at 925 Prospect Street, Brooklyn, nicknamed the “Pon-
derosa,” and were thereafter distributed by organization
lieutenants and other connections in Maryland, Penn-
sylvania, Ohio, New York, North Carolina, and other
United States locations. McCargo, a Matthews lieutenant,
Charles W. Cameron—convicted on conspiracy count. Sen-
tenced to eight years imprisonment, a five year special parole
term, and a $5,000 fine.
John Darby—convicted on conspiracy count and five telephone
counts. Sentenced on Count One to fifteen years imprisonment,
a five year special parole term, and a $25,000 fine; on Counts
Four through Eight, to three years imprisonment, each consecutive
to each other, but concurrent to Count One.
Thelma Darby—convicted on conspiracy count; acquitted on
telephone count. Sentenced to five years imprisonment, a five
year special parole term, and a $25,000 fine.
David C. Bates—convicted on conspiracy count and on one
telephone count; acquitted of one telephone count. Sentenced to
eight years imprisonment, a special parole term of five years,
and a $5,000 fine on Count One; to a concurrent four year
prison term on the telephone count.
6a
Appendix A—Opinion of the Court of Appeals
worked principally at the “Ponderosa,” cutting and bag-
ging narcotics. Carter, an upper-level receiver of nar-
cotics from the organization, acted as the major distribu-
tor in Maryland, utilizing a sub-cadre of couriers and
connections in that state. For instance, in late 1970,
there was a shortage of heroin in Maryland; and several
of Carter’s people met to discuss the problem. Purcel
Wylie, a Carter courier, told one of Carter’s customers,
Norman Coleman, that Frank Matthews was Carter’s
connection and that to obtain a supply of narcotics he
was to call a phone number in New York to contact Mat-
thews’ wife, Hinton, and that she would connect Wylie
with one of the organization’s lieutenants who would
supply the heroin.
John Darby, a key lieutenant in the organization,
supervised the distribution of narcotics in Pennsylvania.
After Darby was arrested in September, 1972, and later
was sentenced on a state “gun” charge to imprisonment
in New York, his wife, appellant Thelma Darby, assumed
his functions in the organization. In 1974, in particular,
she had frequent contact with Walter Rosenbaum, who
supplied the organization with mannitol and quinine used
in cutting narcotics. Bates and Cameron, major receivers
of narcotics from the Matthews organization, distributed
in Pennsylvania and North Carolina, respectively. Beck-
with acted as one of Matthews’ lieutenants, assisting in
the acquisition of diluents through Rosenbaum and other
contacts. There was also evidence that Beckwith owned
one of the organization’s “cutting mills,” an apartment at
101 E. 56th Street, Brooklyn, from which, among other
things, a 32-gallon drum and oar used to cut and mix
heroin, sifters, spoons, and other “cutting” paraphernalia,
cases of quinine, various quantities of heroin and cocaine,
and approximately $148,000 in cash were seized on Sep-
tember 15, 1972, during a search incident to a valid
warrant.
Ta
Appendix A—Opinion of the Court of Appeals
Investigation by federal and state narcotics agents of
the Matthews organization commenced in 1971, appar-
ently as a result of the observations of one Detective
Kowalski of the New York City Police Department, who
lived at 130 Clarkson Avenue, Brooklyn, a building in
which Matthews and Hinton also maintained an apart-
ment. In 1971 and 1972, Kowalski observed several of
the appellants, including Hinton, John and Thelma Darby,
McCargo, and Cameron, frequently entering and leav-
ing the apartment; and, on occasion, he observed them
carrying paper bags, attache cases, and suitcases. Kowal-
ski’s observations triggered surveillance by federal and
state authorities of the comings and goings of Mat-
thews and other organization members from other loca-
tions utilized by the organization, including 3333 Henry
Hudson Parkway, Bronx. In 1972, surveillance was
greatly increased; and in June and August of that
year, two court-ordered wiretaps were obtained for the
3333 Henry Hudson Parkway apartment and for 7
Buttonwood Road, Toad Hill, Staten Island, a large resi-
dence built by Matthews and Hinton. A September,
1972, search of the 130 Clarkson Avenue apartment fol-
lowed shortly thereafter; and various documents were
turned up which concerned money received from narcotics
purchasers and disclosed some of the expenditures made
by the organization.
The arrest of various organization members in 1972
and 1973, such as that of Norman Coleman in March,
1972, and their agreements to cooperate with the Govern-
ment, assisted federal and state authorities in pursuing
the already extensive investigation underway. In January,
1973, Frank Matthews was arrested in Las Vegas, Nevada.
His arrest, and the organization’s efforts directed at
8a
Appendix A—Opinion of the Court of Appeals
meeting his $325,000 bail bond, reduced from an initial
$5,000,000, threw the organization into temporary dis-
array. Following the posting of the bond, Matthews
“jumped” bail; and he has since been at large. After
Rosenbaum’s arrest and agreement to cooperate with the
Covernment in June, 1973, undercover agents began to
infiltrate the organization, posing at times as prospective
suppliers of the then scarce diluents quinine and mannitol.
Organization narcotices sales nonetheless continued
through early 1975.
II. THE INDICTMENT OF BARBARA HINTON
Appellant Hinton raises seven points of error, one of
which is of importance and is discussed forthwith. She
claims that her indictment by the same grand jury
which heard her give immunized testimony constitutes a
violation of her Fifth Amendment rights and her right
to due process, and that, accordingly, as to her, the in-
dictment must be dismissed and her conviction after hav-
ing been tried upon that indictment must be reversed.
The grand jury which returned the instant indictment
was convened in June, 1972. On November 21, 1972,
Hinton appeared before that grand jury for the first
time. After giving some 20 pages of testimony, during
which she claimed her privilege against self-incrimination
as to nearly all questions not pertaining to her “pedigree,”
she was excused. The Government subsequently sought an
order granting Hinton immunity; and on February 16,
1973, the late Judge George Rosling of the U.S. District
Court, Eastern District of New York, signed such an
order. On February 20, 1973, Hinton was recalled to
testify; but she persisted in claiming her privilege and
9a
Appendix A—Opinion of the Court of Appeals
was shortly thereafter excused, apparently to enable the
prosecutor and her attorney to discuss the immunity issue.
She was then recalled on both February 21 and March 7,
1973, during which appearances she gave approximately
200 pages of testimony. Two years later, this same
grand jury, the grand jury which had heard her immu-
nized testimony, indicted her; and she stood trial on the
allegations contained in that indictment.
At trial, Hinton’s counsel moved at least three times
for a dismissal of the indictment, or, in the alternative,
for a hearing on the issue of whether the indictment had
been tainted by the improper use of her immunized testi-
mony. Judge Mishler did not dismiss the indictment, and
at first declined to grant the alternative request for a
hearing; but he stated that he would examine the grand
jury minutes to ascertain whether an independent source
existed for the evidence upon which the indictment was
founded. Later, upon a renewed motion, the court stated
that [il f the defendant is convicted I will give you a full
hearing.” However, when counsel, after the Government
had rested, again moved for a hearing, the judge, stating
that he had decided against Hinton’s petition, retracted
his earlier commitment.“
„Judge Mishler concluded that there was no need for a
hearing as “there is no question in my mind that the Government
used none of the testimony that she gave before the grand jury.”
There is no evidence in the record, however, that the Government
was ever required to affirmatively establish that the indictment
was based on evidence fully independent of Hinton’s testimony.
Judge Mishler further concluded, in agreement with the
Government’s position that the necessity for permitting the same
grand jury to indict Hinton that had heard Hinton’s immunized
testimony was occasioned by the fact that the grand jury’s
term extended from 1972-1975 during which so many witnesses
[Footnote continued on following page]
10a
Appendix A—Opinion of the Court of Appeals
Hinton contends that, as to her, the indictment was
necessarily tainted by the grand jury’s having heard her
immunized testimony; and thus that she has suffered an
unconstitutional deprivation of her privilege against self-
incrimination. She further contends that, inasmuch as the
Government was never required to show that it had an
independent source for the evidence which formed the
basis of her indictment, the trial court’s refusal to conduct
a hearing on the issue of taint constitutes reversible error.
The Government counters that the evidence underlying
Hinton’s indictment was obtained or derived from an
independent source because: (1) Hinton’s testimony was
entirely self-exculpatory; (2) she was indicted nearly two
years after giving her immunized testimony; and (3) the
evidence incriminating Hinton came primarily from one
Donald James, who testified before the grand jury prior to
Hinton, and also came from the wiretaps conducted in
June through September, 1972.
At first glance, it would seem that where the indict-
ment is returned by the same grand jury which heard the
defendant’s immunized testimony, it would be virtually
impossible for the Government to show that it had an
independent source for the indictment’s evidentiary base
as despite any instructions from the judge, it would be
well nigh impossible for the grand jurors to put [the
immunized witness’s] answers out of their minds, cf.
Bruton v. United States, 391 U.S. 123 (1968). ...”
were heard in connection with this conspiracy that “it’s very
likely that some of the witnesses who appeared before the Grand
Jury, some of them might be targets, and were also indicted by
the Grand Jury. It seems like a needless process, to just hear the
entire testimony and hand it over to [a new] Grand Jury for
indictment.”
lla
Appendix A—Opinion of the Court of Appeals
Goldberg v. United States, 472 F.2d 513, 516 (2d Cir.
1973).
Here, however, the issue is complicated by the Govern-
ment's assertions, assertions emphasized by the trial
court, that, in fact, Hinton gave no incriminating testi-
mony before the grand jury, and that she did not admit
any knowing involvement in the facts and circumstances
later charged in the indictment against her. From this,
the Government contends in its brief that Hinton’s tes-
timony was not necessary to form a factual predicate
for her indictment. The Assistant United States Attorney
did admit at oral argument, however, that it was not until
after Hinton’s own testimony that he realized the extent of
It has been suggested, however, that this dictum from Judge
Friendly’s opinion in Goldberg has been overruled by United
States v. Calandra, 414 U.S. 338 (1974). United States v. Dornau,
491 F.2d 478, 481 n.15 (2d Cir. 1974). This suggestion is based
on the dictum in Calandra, supra, at 345, that “an indictment
valid on its face is not subject to challenge on the ground that
the grand jury acted . . on the basis of information obtained in
violation of a defendant’s Fifth Amendment privilege against
self-incrimination,” citing Lawn v. United States, 355 U.S. 339
(1958). We agree with appellant Hinton that the Dornau sugges-
tion is suspect, inasmuch as the Goldberg panel considered Lawn
and concluded that that decision did not settle the question, 472
F.2d at 516 n.4, a viewpoint which we share. Lawn involved two
successive grand juries, the first of which heard defendants’
testimony and received their records, and the second of which
returned the indictment upon which they were tried. In direct
contrast to the instant case, the defendants in Lawn “had no
reason, beyond suspicion, to believe that the [second] grand jury
considered any of the materials produced by petitioners before
the [first] grand jury.” 355 U.S. at 348-49. Where the grand
jury which hears the witness’s testimony and the grand jury
which indicts is the same grand jury, as here, consideration of
the immunized testimony by that jury is a virtual certainty.
12a
Appendix A—Opinion of the Court of Appeals
her involvement. Further, the Government argues that
Hinton’s denial of any involvement in the narcotics
operation the grand jury was studying left her in the same
position as if she had claimed the Fifth Amendment
privilege.
Analysis must begin with 18 U.S.C. S 6002, the im-
munity statute. It provides, in relevant part, that:
[No testimony or other information compelled
under the order [granting immunity] (or any in-
formation directly or indirectly derived from such
testimony or other information) may be used
against the witness in any criminal case, except a
prosecution for perjury, giving a false statement,
or otherwise failing to comply with the order.
The question here is whether any of Hinton’s immunized
testimony, or any information directly or indirectly de-
rived from that testimony, was used against her in her
prosecution. In Kastigar v. United States, 406 U.S. 441
(1972), in upholding the constitutionality of § 6002, the
Court stated that once a defendant demonstrates that he
has testified under immunity to matters relating to the
federal prosecution, the prosecution has “the affirmative
duty to prove that the evidence it proposes to use is
derived from a legitimate source wholly independent of
the compelled testimony.” 406 U.S. at 460. As we have
previously emphasized, the burden imposed by Katsigar
requires not merely a showing by the Government that
the immunized testimony was not the indictment’s “legal
cause“; rather the prosecution must establish that the
legitimate evidence upon which the indictment was
founded was gleaned from a source “wholly independent
of the compelled testimony.” United States v. Kurzer, 534
F.2d 511, 516 (2d Cir. 1976).
13a
Appendix A—Opinion of the Court of Appeals
The cases since Kastigar in which appellate courts were
faced with the claim that evidence was improperly
derived from immunized testimony, or that the im-
munized testimony was itself improperly used, are of
little assistance in resolving the question here. None of
them involved the situation where the same grand jury
which heard a witness’s testimony returned an indictment
against that witness based upon facts about which the
witness testified.* It is clear from these subsequent cases,
however, that the fact that none of Hinton’s immunized
testimony was introduced at the trial does not resolve the
question, for § 6002 speaks of any use of the immunized
testimony against the witness in any criminal case, and so
prohibits its use not merely at trial, but in the grand jury
proceedings as well. United States v. Kurzer, supra; cf.
Kirby v. Illinois, 406 U.S. 682, 688-9 (1972).
We cannot agree with the trial judge that the Govern-
ment has satisfied its burden of demonstrating a “wholly
independent” source for the evidence upon which Hinton’s
indictment was grounded. Even if Hinton in her testi-
mony before the grand jury substantially denied any
involvement in the conspiracy, that denial does not pre-
8 United States v. Kurzer, 534 F.2d 511 (2d Cir. 1976) ; United
States v. Bianco, 534 F.2d 501, 510-11 (2d Cir. 1976); United
States v. DeDiego, 511 F.2d 818 (D.C. Cir. 1975); United States
v. First Western State Bank of Minot, North Dakota, 491 F.2d
780 (8th Cir.), cert. denied sub nom. Thompson v. United States,
419 U.S. 825 (1974); United States v. Catalano, 491 F.2d 268,
272 (2d Cir.), cert. denied, 419 U.S. 825 (1974); United States
v. McDaniel, 449 F.2d 832 (8th Cir.), on remand, 352 F. Supp.
585 (D. N.Dak. 1972), aff'd, 482 F.2d 305 (8th Cir. 1973). See
also United States v. Dornau, 359 F. Supp. 684 (S.D.N.Y. 1973),
rev'd on other grounds, 491 F.2d 473 (2d Cir.), cert. denied, 419
U.S. 872 (1974).
14a
Appendix A—Opinion of the Court of Appeals
clude the possibility of improper use against her of her
testimony. A juror can draw an inference of a witness’s
guilt from either a confirmation of, or a denial of
participation in, acts about which he is questioned. For
instance, if witness X denies involvement in a situation in
which one or several other witnesses have already
confirmed X’s participation, the jurors could reasonably
draw an inference that X had not truthfully testified
about the incident. Distrust of his testimony on that one
point could reasonably lead the jurors to distrust all or a
large part of X’s testimony on other matters. If witness X
had kept silent, or had been permitted to assert his Fifth
Amendment privilege, those negative inferences would
have been precluded.
We are thus unpersuaded by the Government’s conten-
tion that the evidentiary basis for the indictment of
Hinton was derived in toto from the testimony of Donald
James and the wiretaps. While that evidence may have
been incriminating, it is difficult, if not impossible, to
determine, without questioning the grand jurors them-
selves, whether, standing alone, it would have justified the
indictment of Hinton. The Government found it necessary
to call Hinton under grant of immunity after James had
testified, and this would tend to indicate his testimony
was not sufficient to inculpate her, and the jurors needed
to have her face them before deciding to indict.
The fact that Hinton was indicted some two years after
she testified also fails to negate the existence of taint. As
she notes, we have no information as to whether her
testimony was later reread to, or summarized for, the
grand jury, or whether any leads or other information
were derived from her testimony that were later used by
15a
Appendix 4 Opinion of the Court of Appeals
the Government in obtaining evidence to influence the
grand jury’s decision whether to indict her. This Govern-
ment argument that the lapse of time cleases taint
borders on the frivolous: there was but one indictment,
and it was returned against all of the defendants when the
grand jury had completed its four-year studies. Likewise,
the Government’s final argument is also particularly
unconvincing; to wit, that it would have been too costly
and time-consuming to convene a new grand jury to indict
Hinton inasmuch as the original grand jury had heard
scores of witnesses during its four-year term.
Thus we conclude that there has been no compliance
with the Kastigar requirement that the Government must
affirmatively prove that the evidence against Hinton was
derived from a wholly independent source; but we are
now faced with the equally important issue of whether a
hearing to ascertain whether the immunized testimony
was improperly u d is a fit remedy to be applied here.
We are convinced that such a hearing on the question of
taint would not suffice. Beyond the forseeable difficulties
of establishing at a hearing that the grand jurors, when
they decided to indict, did not improperly use the
immunized testimony or leads or evidence derived from
it, for us to condone the practive of having the same grand
jury that heard the immunized testimony indict the
witness who so testified * is to invite action where the cure
is worse than the malady. The prospect of peering into the
grand jurors’ minds, or of examining them individually,
to ascertain whether Hinton’s testimony was improperly
„Of Course the right of any grand jury to consider (18
U.S.C. § 6002) “a prosecution for perjury, giving a false state-
ment, or otherwise failing to comply with the order [granting
immunity]” is not involved in this appeal in any way.
l6a
Appendix A—Opinion of the Court of Appeals
used, is both impractical and unpalatable.’ To so defile
the secrecy of the grand jury process in order to inquire
into apparent slipshod prosecutorial practices is to
compound the problem the Government has created,
rather than to alleviate it. The alternative of convening a
grand jury distinct from that which heard the immunized
testimony is not so onerous as to justify the jeopardizing
of a defendant’s Fifth Amendment rights. To hold other-
wise is to permit intrusion into the long-approved common
law secrecy of the grand jury process.
We believe that as a matter of fundamental fairness, a
Government practice of using the same grand jury that
heard the immunized testimony of a witness to indict him
after he testifies, charging him with criminal participa-
tion in the matters being studied by the grand jury,
cannot be countenanced. The procedure is so fraught with
applicable constitutional problems and with the potential
for abuse that in our supervisory power over the ad-
ministration of criminal justice in the district courts of
this circuit, cf. United States v. Toscanino, 500 F.2d 267
% The apparent necessity for examining the grand jurors
themselves at a hearing to determine whether any of the im-
munized testimony was improperly used against the defendant
does not pertain in those cases where the question is whether an
illegitimate use was made by a subsequent, entirely separate
grand jury or at the trial of the defendant. In those cases,
exploration of the question of taint can be made through ex-
amination of the defendant, the witnesses for the prosecution,
and the witnesses whose testimony incriminated the defendants,
see, e.g., United States v. Kurzer, 534 F.2d at 515-518, and by
review of the prosecution’s evidence and of the grand jury tran-
script, see, e.g., United States v. Bianco, 534 F.2d at 509-11;
United States v. First Western State Bank of Minot, North
Dakota, 491 F.2d at 786-788.
17a
Appendix A—Opinion of the Court of Appeals
(2d Cir. 1974), we are compelled to conclude that the
procedure the Government adopted here falls outside the
bounds of permissible prosecutorial conduct. Accordingly,
we reserve the conviction of appellant Hinton and instruct
that the indictment be dismissed as to her.
Ill. THE WIRETAPS
Appellants John Darby, Cameron, Hinton, Bates, and
Thelma Darby argue that the trial court erred in
denying a pre-trial motion to suppress evidence obtained
pursuant to two state wiretap orders. The first order,
dated June 27, 1972, and signed by Justice William
Kapelman of the New York Supreme Court, Bronx
County, authorized interception of the narcotics-related
conversations of Matthews, Hinton, John Darby, Carter,
and others, over the telephone bearing the number
212-884-2043, located in Matthews’ apartment at 3333
Henry Hudson Parkway. The order was extended once
and expired August 24, 1972. The second order, dated
August 24, 1972, and signed by Justice Samuel Rabin of
the New York State Appellate Division, Second Judicial
Department, authorized e interception of Matthews’
conversations over the telephone bearing the number
212-979-4022, located in his residence at 7 Buttonwood
Lane, Staten Island. Both orders contained provisions
Having thus reversed her conviction by upholding her sec-
ond claim of error, we need not reach the six additional arguments
advanced by Hinton in support of reversal.
The appellants have standing to challenge the validity of
the wiretap order since they are persons whose conversations
were intercepted or against whom the interception was directed.
N.Y. Crim. P. L. §§ 710.20 and 710.10(5.) and M.Y.C.P.L.R.
§ 4506(2.). See also 18 U.S.C. §§ 2510(11) and 2518(10) (a).
18a
Appendix A—Opinion of the Court of Appeals
requiring minimization of interception of calls unrelated
to the narcotics investigation.
Appellants claim that the evidence derived from the
wiretap surveillance should have been suppressed as: (1)
the Government failed to show as a prerequisite for the
interception orders that normal investigative techniques
would not suffice to unearth conspiracy; and (2) Govern-
ment agents failed to minimize the interception of com-
munications. As the wiretap orders were issued pursuant
to New York law (N.Y. Crim. Proc. L. §§ 700.15(4) and
700.20(2)) and the surveillance was conducted pursuant
to those state statutes, the validity of the orders must be
determined under state law. The equivalent federal
statutes (18 U.S.C. § 2510 et seg.) and relevant federal
decisional law may, however, be considered where there is
inadequate state case law on a particular point. United
States v. Manfredi, 488 F.2d 588, 599 (2d Cir. 1973), cert.
denied, 417 U.S. 936 (1974); People v. Castania, 73
Misc. 2d 166, 340 N.Y.S.2d 829, 833-36 (Monroe Cty. Ct.
1973).
Section 700.15(4) provides that an eavesdropping war-
rant may issue only fu] pon a showing that normal
investigative procedures have been tried and have failed,
or reasonably appear to be unlikely to succeed if tried, or
to be too dangerous to employ.” Section 700.20(2) (d)
supplements the above provision by requiring that every
application for a wiretap warrant must contain a full and
complete statement of facts establishing that normal in-
vestigative procedures have been tried and have failed,
or that they reasonably appear to be unlikely to succeed
if tried, or to be too dangerous to utilize. We agree with
Judge Mishler that the affidavits submitted to the state
19a
Appendix A—Opinion of the Court of Appeals
courts in support of the wiretap application adequately
established that normal investigative techniques would
be unavailing, and that they thus complied with the
mandates of §§ 700.15(4) and 700.20 (2).
Judge Mishler noted that the purpose of the statutory
requirements is not to preclude resort to electronic
surveillance until after all other possible means of in-
vestigation have been exhausted by investigative agents;
rather, they only require that the agents inform the
authorizing judicial officer of the nature and progress of
the investigation and of the difficulties inherent in the use
of normal law enforcement methods. Cf. People v. Holder,
69 Misc. 2d 863, 331 N.Y.S.2d 557 (S.C. Nassau Cty.
1972). Here, the affidavits submitted to the state courts by
Officer Garay and Detective Nannery indicated that a
rather extensive investigation to Frank Matthews and a
number of his cohorts was already underway; but, as
appellants suggest was the situation, the case against the
co-conspirators was far from “airtight.” The affidavits
further indicate, based on ongoing non-wiretap surveil-
lance, that Matthews was very likely involved in an
expansive narcotics operation, and that he was using the
telephone to further this enterprise. Use of normal
investigative techniques had become increasingly un-
successful, the affiants stated, as Matthews had become
more and more evasive and had been changing his phone
numbers and his phone usage. Thus, even though state or
federal officers may have garnered sufficient information
without the use of wiretaps to support an indictment
against Matthews, and possibly aaginst a few others,
there was every reason to believe that additional co-
conspirators were involved who could not be successfully
investigated without wiretapping. The order instituting
wiretapping was thus not in error.
20a
Appendix A—Opinion of the Court of Appeals
With reference to appellants’ claim that the agents
conducting the wiretaps failed to minimize interception
in accordance with statutory requirements and the
specific language of the wiretap orders themselves, we
also agree with Judge Mishler that appellants’ arguments
must fail. Section 700.30, N.Y. Crim. P. L., requires in
paragraph 7 that every eavesdropping warrant contain a
provision that interception “shall be conducted in such a
way as to minimize the interception of [non-pertinent]
communications... In determining whether the agents
have complied with this requirement, a requirement
included in the wiretap orders, neither the New York
courts nor the courts of the circuit have applied a precise,
mechanical standard. We must look to whether the agents
devised a reasonable means of limiting interception, and
to whether they utilized those safeguards in good faith.
See People v. Holder, supra, at 562; United States v.
Manfredi, supra, at 600; United Siates v. Tortorello, 480
F.2d 764 (2d Cir.), cert. denied, 414 U.S. 866 (1973).
The Government submitted to Judge Mishler affidavits
of the agents who executed the wiretapping. The agents
stated that, although all calls were monitored, as soon as a
call was determined to be personal in nature, the
recording equipment was deactivated, and only “spot
It should be ncted that it is doubtful that any of the ap-
pellants, aside from Hinton, even has standing to challenge mini-
mization; and she may only have standing to challenge the wire-
top at her residence on Staten Island. The Bronx apartment was
apparently not used as a residence by any of the appellants. See,
e. g., United States v. Poeta, 455 F.2d 117, 122 (2d Cir.), cert.
denied, 406 U.S. 948 (1972) (only those persons who have a
privacy interest in the residence in which the tapped phone is
located have standing).
21a
Appendix A—Opinion of the Court of Appeals
checks” were thereafter made to insure that the conversa-
tion did not turn to the subject of narcotics. It has been
previously held that the mere fact that every conversation
is monitored does not of necessity render the surveillance
violative of the minimization requirement, see, e. g.,
United States v. Bynum, 485 F.2d 490, 500 (2d Cir.
1973). vacated on othe, grounds, 417 U.S. 903 (1974),
later reinstated, 513 F.2d 533 (2d Cir. 1975), and cases
cited therein. And this is not a case where every conversa-
tion coming into and emanating from the wiretapped resi-
dences was recorded and overheard in its entirety, as in
People v. Holder, supra, at 570. The agents stated below in
their affidavits that they utilized a maximum of five
minutes to ascertain whether a conversation was perti-
nent to their investigation or was a distinctly personal
one. While a five-minute ascertainment period is some-
what long (compare United States v. Bynum, supra), it
was pointed out by the agents that the identification of
types of calls was particularly difficult because of the
conspirators’ frequent use of code language when talking
about narcotics, and because many calls which seemed at
the outset to involve purely persona] matters later turned
out to be narcotics related. Here, as in Bynum and
Manfredi, there was no way to frame screening instruc-
tions so as to avoid the taping of some “innocent”
conversations. The calls were carefully catalogued, and
those catalogues are discussed in some depth by Judge
Mishler. We share his view that while it may be fairly
said that the agents did not strictly adhere to the minimi-
zation instructions, it appears that a good faith attempt
was made to limit intrusion into private intimacies so as to
preserve the privacy interests of those whose conversa-
tions were monitored. Judge Mishler thus properly re-
fused to suppress the wiretap evidence.
22a
Appendix A—Opinion of the Court of Appeals
IV. OTHER ARGUMENTS
McCargo and Cameron contend that the trial court
erred in admitting into evidence proof that they failed to
file any federal income tax returns during the years 1968-
1974. They argue first that the admission of the returns
was based upon Rule 404(b), F. R. of Evid., which per-
tains to admission into evidence, for limited purposes, of
proof of other crimes, and that evidence should have been
excluded as its prejudicial effect outweighed its probative
value.
It is quite apparent from the trial transcript, however,
that the evidence of failure to file tax returns was not
admitted under Rule 404(b); but the proof was offered
and was admitted as a corrollary to the Government’s
presentation of evidence regarding large expenditures
made by Cameron and McCargo during several of the
years in question; and the Government’s purpose was to
negate the existence of any legitimate source for the
money they had expended. The court so charged the jury
as to the evidentiary use of the returns and explained that
the jurors could in their discretion infer from the ap-
pellants’ failure to file returns that they had no bona
fide source of income upon which they could have drawn
to make their large purchases.
Cameron and McCargo argue, however, that evidence
of their failure to file is not probative of the fact for which
it was offered—to show the absence of any legitimate
income source. In United States v. Fulley, 489 F.2d 33, 38-
39 (2d Cir. 1973), we sustained, as tending to show the
lack of any legal source of income, the admissibility of tax
returns on which the defendants had reported very low
income. Appellants contend that Falley is inapposite,
23a
Appendix A-—Opinion of the Court of Appeals
arguing that the failure to file any returns at all, in
contrast to the reporting of low income, could be the result
of any number of non-comparable factors, and thus ad-
missibility in Falley does not preclude rejection here.
We are not persuaded by this argument. While proof of
non-filing in concededly of less probative force than a tax
return showing minimal income, there can be little doubt
that it does tend to negate the existence of a legitimate
source of income. It is hardly conclusive, but it is
undeniably relevant. The determination of the weight
which might properly be accorded it was for the jury’s
determination, and they were so instructed. Appellants
were free to rebut this evidence with proof that they had
sufficient prior net worth to fund the expenditures they
had made, or that they obtained the necessary funds
through non-reportable, non-taxable sources, but they
apparently offered no such explanations. We agree with
Judge Mishler that the probative value of the evidence
outweighed any incidental prejudice, and we uphold the
propriety of his ruling admitting the evidence.
Appellant Thelma Darby claims that she was ir-
reparably prejudiced by the court’s failure to grant her a
severence. This prejudice allegedly arose from the
fact that, she and her husband were tried together. She
argues that she was prohibited from introducing evidence
1 There is some question as to whether a timely motion for
severance was ever made by Mrs. Darby below. She contends
thet while such a motion may not have been formally made on
her behalf, Judge Mishler considered her to have joined in the
severance motions voiced by three of her co-defendants. The
Government sharply disputes this contention, and the relevant
portion of the transcripts does not resolve the controversy.
24a
Appendix A—Opinion of the Court of Appeals
explaining that the reason she made frequent trips to
New York in 1974-75 from her home in Philadelphia was
to visit her husband who was then incarcerated in a New
York state prison, and not for the reason suggested by the
Government, that she traveled on narcotics business.
This claim is disingenuous. It is clear from the trial
transcript that while the court instructed both the
Government and several of the defense counsel to avoid
elicitation of testimony regarding John Darby’s incar-
ceration, Judge Mishler explicitly told Thelma Darby’s
trial counsel that he was free to present evidence before
the jury that Mrs. Darby journeyed to New York for the
purpose of visiting her husband. Once given this green
light, defense trial counsel inexplicably failed to fully to
pursue the opportunity, except to inquire of a co-
defendant who had taken the stand on his own behalf
whether the witness knew that Mrs. Darby was going to
New York to see her husband. If there were failure here,
not justified by trial strategy, that failure is hardly
chargeable to the trial court. Absent any further specific
allegations of prejudice, we are unable to conclude that it
was error to deny a severance.
Appellant Beckwith raises two points of error, both of
which lack substance. First, he claims that his prosecu-
tion was barred by the double jeopardy clause of the Fifth
Amendment. His argument is based on his indictment in
September, 1972, in the Eastern District of New York for
possession with intent to distribute quantities of heroin
and cocaine in violation of 21 U.S.C. S 841 (a) (1), a
charge upon which he was subsequently convicted follow-
ing a jury trial. He claims that the instant conspiracy
prosecution arises from the same substantive violations.
involved in the earlier indictment.
25a
Appendix A—Opinion of the Court of Appeals
While it is concededly true that the 1973 conviction
arose out of an incident which was also part of the
conspiracy for which Beckwith was indicted and upon
which he was convicted below, his claim misconstrues the
principle of double jeopardy. A conspiracy count may be
charged along with substantive offenses in the same
indictment, Pereira v. United States, 347 U.S. 1 (1954),
or it may be charged separately, and the defendant tried
separately. United States v. Ortega-Alvarez, 506 F.2d 455,
457 (2d Cir. 1974), cert. denied, 421 U.S. 910 (1975). So
long as the elements of each offense are sufficiently dis-
tinct from those of the other offenses separately charged,
multiple violations of the narcotics laws arising out of a
single transaction may be tried in two or more separate
trials. Id.
Here, the charge of Beckwith’s involvement with
numerous co-conspirators in a far-flung narcotics
venture, and the proof of his active participation from
1969-1972 in a conspiracy to import heroin and cocaine
and to distribute those drugs in various United States
locations, is irrefragably distinct from his earlier con-
viction on a single charge of possession. United States v.
Ortega-Alvarez, supra, at 457-58. His argument that he is
entitled to relief on the ground of collateral estoppel is
similarly misplaced for no issue was determined in his
favor at his prior trial on the substantive offense. See
Ashe v. Swenson, 397 U.S. 436, 443 (1970); Sealfon v.
United States, 322 U.S. 575, 578-79 (1948).
In Beckwith’s second claim he argues that the evidence
at trial clearly established the existence of multiple
conspiracies rather than the single conspiracy charged in
the indictment. This claim is frivolous. The sole sub-
stantiating point urged by Beckwith is the fact that
26a
Appendix A—Opinion of the Court of Appeals
Frank Matthews and another co-conspirator, Miguel
Garcia, were separately charged in an indictment re-
turned by the grand jury prior to the return of the
indictment before us. This, he suggests, renders in-
escapable the conclusion that there was one conspiracy in
operation from 1969-1972, and an entirely separate one
from 1972-1975. However, the proof against Beckwith
points to the contrary. The testimony of Cameron,
Norman Coleman, Walter Rosenbaum, and other estab-
lished that Beckwith worked with Matthews, John Darby,
and other organization members on a continuing basis
throughout 1969-1973. The consistency of personnel,
method and type of operation throughout that period
militates against a finding of discrete conspiracies and
facilitates ready distinction of this case from United
States v. Bertolotti, 529 F.2d 149 (2d Cir. 1975), where
we found an improper consolidation of at least four sep-
arate and unrelated criminal ventures. There was no
material variance here between the indictment and proof.
We are similarly unconvinced by appellant Bates’s
conclusory allegations, unsupported by any facts, of
multiple conspiracies. The Government’s proof estab-
lished his continuous membership in the Matthews
organization from 1972-1975, during which time he was
chiefly involved in the distribution of drugs in
Pennsylvania, both individually and in conjunction with
the Darbys. Here too, there is no evidence of prejudicial
variance.
Relying on Massiah v. United States, 377 U.S. 201
(1964), appellant Carter contends that tape recordings of
conversations between him and Norman Coleman, a
Government witness, were erroneously admitted into
27a
Appendix A—Opinion of the Court of Appeals
evidence at trial. In 1972, subsequent to his agreement to
cooperate with the Government, Coleman was outfitted by
federal agents with a Kel transmitter. On June 5 and
August 22 of that year, he recorded on the Kel set two
conversations he had with Carter. At the time the
recordings were made, Carter was under indictment on a
Maryland state narcotics charge and was represented by
counsel in that pending case. Carter contends that the
tapes were obtained in violation of his rights under
Massiah as the federal agents were aware of the Maryland
prosecution.
Carter’s claim is illfounded. His statements to Coleman
on June 5 and August 22, 1972, were elicited and recorded
in the course of an investigation wholly distinct from the
indictment in Maryland. Massiah speaks only to the
situation where in the absence of retained counsel,
statements are deliberately elicited from a defendant in
connection with a crime for which he has already been
indicted. 377 U.S. at 206. See also United States v.
Edwards, 366 F.2d 853, 873 (2d Cir. 1966), cert. denied
sub nom. Jakob v. United States, 386 U.S. 908 (1967).
The statements were properly admitted.
Carter next contends that irreparably prejudicial! error
was committed at trial when Special Agent Louis Candell
of the Drug Enforcement Administration, testifying re-
garding one of the taped Carter-Coleman conversations,
inadvertently mentioned that Carter had referred to his
pending narcotics case in Maryland. In response to
15 The relevant portion of the transcript reads as follows:
“(Taped played.)
*
A [Candell] (Continuing) At this point Mr. Carter is
talking to Mr. Coleman and he told him that he didn’t have
or forgot his money and he is asking Mr. Coleman to lend
[Footnote continued on following page]
28a
Appendix A—Opinion of the Court of Appeals
Carter’s immediate objection, Judge Mishler excused the
jury. He denied Carter’s motion for a mistrial, but
inquired of his counsel whether he wished a corrective
instruction to be given to the jury. Counsel declined the
offer, stating that he feared that any further comment
would merely accentuate the problem.
Undeniably, the reference to Carter’s pending indict-
ment in Maryland in the jury’s presence constituted error.
However, because of the overwhelming evidence of
Carter’s guilt and the nature and context of the comment,
we are constrained to conclude that the error must be
deemed harmless. It is important to note that agent
Candell did not say that Carter had spoken of a conviction
on a narcotics charge; the comment referred to a case
pending against Carter. The outcome of that prosecution
was not revealed to the jury. Further, the comment was
not induced by the Government; it was inadvertent.
Finally, the improper reference occurred on the tenth day
of the ten-week-long trial during which the jury heard
thousands of pages of testimony. The comment did not
serve to deprive Carter of a fair trial. See United States v.
Stromberg, 268 F.2d 256, 269 (2d Cir.), cert. denied, 361
U.S. 63 (1959) (inadvertent reference to defendant’s
having served time in jail was “an isolated [incident]
him some money and Mr. Coleman says he has about $100
on him and Mr. Carter asks Coleman for $20.
(Taped played.)
A [Candeli] (Continuing) Mr. Coleman asked Mr. Car-
ter, he said ‘When are you going to be ready to do some-
thing’ and as I said earlier, Mr. Carter didn’t respond spe-
cifically to that question. He began to engage in a conver-
sation about a pending narcotics case that he had against
him in the state of Maryland. {Emphasis added]
29a
Appendix A—Opinion of the Court of Appeals
during the course of a long trial”; curative instruction
given) ; Hardy v. United States, 343 F.2d 233, 234 (D.C.
Cir. 1964), cert. denied, 380 U.S. 964 (1965) (reference
by government witness to defendant’s having done “time
in the penitentiary” ; curative instruction declined).
Appellant Cameron argues that the admission into
evidence at trial of statements made by him at the 77th
Precinct stationhouse in Brooklyn, New York, on
February 7, 1975, was error. He contends first that the
statements were elicited and recorded in violation of his
Fifth Amendment right as defined in Massiah v. United
States, supra, and second, that the admission of the
statements constituted a “gross abuse of discretion.’
After the instant indictment was returned by the grand
jury in January, 1975, but before it was unsealed in
February of that year, Cameron was kidnapped by Black
Muslims, apparently for reasons having to do with his
narcotics activities. The story of his three days in captivity
is a sordid tale of brutality and deprivation, the specifics of
which we need not explore here. Suffice to say that he was
released in the early morning hours of February 7 after
payment of a ransom and arrived in somewhat battered
condition at a relative’s home in Brooklyn shortly
thereafter. Upon his arrival, he was met by eight New
York City police officers and was persuaded to go with
them to the 77th Precinct for a “debriefing” regarding his
kidnapping. Present at the police station were not only the
New York authorities who questioned him, but also two of
the federal agents. Officer Garay and Special Agent
Mulhearn, who had been investigating Cameron’s nar-
cotics activities for purposes of the federal indictment.
Cameron was then questioned without an attorney
30a
Appendix A—Opinion of the Court of Appeals
present for some 41% hours, and the entire interview,
unbeknownst to Cameron, was tape recorded. Certain
self-inculpatory statements regarding his narcotics ac-
tivity made by Cameron in the course of the interview
were admitted into evidence at trial following Judge
Mishler’s conduct of a suppression hearing.
Turning to the first prong of Cameron’s argument, his
Massiah claim, we do not agree that the statements were
obtained in violation of Cameron’s Sixth Amendment
rights. While the federal agents were present in the
stationhouse at the time of Cameron’s questioning, they
merely listened to the interview over an intercom of sorts
down the hall from the room in which the debriefing was
conducted. They neither posed questions nor suggested
lines of inquiry. Further, as Judge Mishler emphasized,
while the New York police officers who questioned
Cameron were aware of a federal investigation of
appellant’s narcotics activities, they were not told of
Cameron’s pending federal indictment. As we previously
stated in United States v. Garcia, 377 F.2d 321, 324 (2d
Cir.), cert. denied, 389 U.S. 991 (1967). Massiah does not
“apply in a case in which the questioner was completely
unaware of the existence of the indictment and was not
seeking information about the crime the indictment
charged had been committed.” Here, Cameron was taken
16No Miranda warnings were given Cameron, and prior to
trial he sought to suppress the statements on the additional
ground thai they had been elicited in violation of his rights
under Miranda v. Arizona, 384 U.S. 436 (1966). Judge Mishler
ruled that Miranda was inapplicable here as Cameron was ques-
tioned as the victim of a crime, not as a suspect, and the inter-
view was non-custodial. Cameron has apparently now abandoned
this argument.
31a
Appendix 4 Opinion of the Court of Appeals
to the stationhouse for the avowed purpose of questioning
him as a kidnapping victim, not as the suspect of a federal
crime; and there is no indication that this was a ruse or a
surreptitious effort by the federal agents to improperly
gather post-indietment evidence. It would take some
distortion of the facts to conclude, as Cameron would have
us conclude, that this was a deliberate effort by the New
York authorities to elicit incriminating statements con-
cerning his involvement in the crime for which he had
been indicted by the federal grand jury. United States v.
Garcia, supra. Finally, the fact that the officers in the
77th Precinct had been telephoned at some point prior to
Cameron’s interview by an attorney representing
Cameron in a separate pending criminal appeal did not,
under Massiah, obligate the officers to notify that at-
torney prior to interviewing Cameron. See United States
v. Masullo, 489 F.2d 217, 222-23 (2d Cir. 1973).
We are also unpersuaded by Cameron’s claim that he
was forced to accompany the officers to the 77th Precinct
and to remain there against his will, and therefore that
his statements were not voluntarily made. After hearing
the officers’ and Cameron’s accounts of the interview at
the suppression hearing, and after reviewing the tran-
script of the interview, Judge Mishler concluded that
Cameron’s statements at the stationhouse had been freely
and voluntarily made. He found that Cameron, a college
graduate with “extraordinary familiarity with leading
Supreme Court decisions,” was fully aware of his right to
refuse to be interviewed, and knew that the police had no
lawful means to compel him to answer questions. We find
no error in the trial court’s well-supported conclusion that
Cameron’s statements and presence at the stationhouse
were “matters of choice.”
32a
Appendix A—Opinion of the Court of Appeals
Cameron’s assertion that it was an abuse of discretion
for Judge Mishler to admit the stationhouse statements is
insubstantial. This argument appears to be premised on
the erroneous assumption that the statements were
admitted as evidence of other crimes. The transcript
demonstrates, however, that the statements were ad-
mitted as admissions relevant to proof of his membership
in the narcotics conspiracy. And it can hardly be
contested that statements such as [you might think I’m
a bad guy because I deal in drugs, I, I’ve sold drugs,” or
“when you are in drugs. . . I don’t mean no street corner
pusher—you got a network of so much information.
were relevant to Cameron’s knowledge of, and his intent
and culpability with reference to, the crime charged. In
the first statement heard by the jury, Cameron spoke of
his former involvement in the “business” when “I had
what I paid them in my closet. I had that kind of money
in my closet. My wife could put her hand on it just like
that.” The jury could reasonably infer that the “business”
of which he spoke was narcotics, and the statement was of
particular relevance inasmuch as there had earlier been
testimony at the trial that Matthews kept money used in
the narcotics operation stacked in piles in a closet at 130
Clarkson Avenue. These, and additional statements re-
garding extortion practiced upon narcotics dealers in
Philadelphia, the slaying of “one of Frank Matthews
lieutenants,” and Cameron’s view that the drug business
was “all over” because the “guys that are in it are stuck in
it, but there ain’t no new guys coming in,” tended to show
Cameron’s familiarity with the Matthews operation and
narcotics activity in general. We accordingly uphold the
admissibility of the statements.
33a
Appendix A—Opinion of the Court of Appeals
We have carefully considered the remaining two claims
advanced by Bates, and John Darby’s additional point,
and we find them to be without merit.
Judgment of conviction reversed as to Hinton, with
instructions that the indictment be dismissed as to her;
judgment affirmed as to all other appellants.
34a
APPENDIX B
Amendment V—Capital Crimes; Double Jeopardy;
Self-Incrimination; Due Process; Just Compensation
For Property
“No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or in-
dictment of a Grand Jury, except in cases arising in the
land or naval forces, or in the Militia, when in. actual
service in time of War or public danger; nor shall any
person be subject for the same offence to be twice put in
jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process
of law; nor shall private property be taken for public use,
without just compensation.”
35a
APPENDIX B(1)
Federal Rules of Criminal Procedure, Title 18 U.S.C.
“Rule 52. Harmless Error and Plain Error
(a) Harmless error. Any error, defect, irregularity
or variance which does not affect substantial rights shall
be disregarded.”
36a
APPENDIX B(2)
Judiciary and Judicial Procedure, Title 28 U.S.C.
2111. Harmless error.
On the hearing of any appeal or writ of certiorari in
any case, the court shall give judgment after an examina-
tion of the record without regard to errors or defects
which do not affect the substantial rights of the parties.”
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.