Petition — Dewees v. United States

METIVE"QUDICING YUL, Vows

FILED

80-2163

JUN 22 1981

IN THE

Supreme Court of the United States

October Term, 1980

DONALD DEWEES,

Petitioner,

—

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

JOSEPH I. STONE

Attorney for Petitioner

277 Broadway

New York, New York 10007

IN THE

Supreme Couri of the United States

October Term, 1980

DONALD DEWEES,

Petitioner,

a

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

To: THE HONORABLE CHIEF JUSTICE OF THE UNITED

STATES AND THE ASSOCIATE JUSTICES OF THE

SUPREME COURT OF THE UNITED STATES:

The Petitioner, Donald Dewees, prays that a writ

of certiorari issue to review the judgment of the United

States Court of Appeals for the Second Circuit entered

against him in the above-entitled case on February 2,

1981, and a petition for re-hearing en banc denied May

18, 1981, (dissent as to petitioner Dewees.)

ii

Questions Presented

1. Whether members of a single distribution network

for substances (mannite and quinine), which are them-

selves legal and uncontrolled but which are used as

agents for cutting heroin, can be prosecuted for one

conspiracy.

2. Can you be guilty of a heroin conspiracy if your

sole intent is to distribute. uncontrolled substances?

8. The laws of uncontrolled substances and narcotics

paraphernalia are so ambiguous and vague that they are

incompatible with the Constitution of the United States.

4. Petitioner-appellant joins in all other arguments

made by co-petitioners for granting certiorari.

iii

TABLE OF CONTENTS

PAGE

te ee b en heave naaneeee ii

pe: 8 rere errr ry rrr 1

Be EN Cavs wieschcdticescccecssvens 1

C. United States Constitution and the Statutes 1

D. Summary Statement of Matters Involved .. 2

E. Reasons For Granting Writ ........... ae

SRI og pho Kove cnps¥ca las toeed Rais bveeece 4

TABLE OF AUTHORITIES

Cases:

Blumenthal v. United States, 382 U.S. 589 (1945) .. 8

Kotteakos v. United States, 328 U.S. 750 (1946) ... 8

United States v. Crimmins, 123 F.2d 271 (2d Cir.,

SED 6 cecdhccadgactavscnwhakaeseseesenées 3

United States v. Falcone, 109 F.2d 579, 581 (2d Cir.),

CG; Gad: Uae BD REPO) Macccvesscasvssess 3

United States v. Ingram, 360 U.S. 672 (1960) ...... 3

United States v. Kissel, 218 U.S. 601, 608 (1910) .. 8

United States Code, Title 28, Section 1254(1) ..... 1

Miscellaneous :

Developments in the Law; Criminal Conspiracy, 72

ee, Ti ees GES IS) os vecncicaddevdsess 3

Federal Treatment of Multiple Conspiracies, 57

eo a a td eer oer 3

A. The Opinion Below

The opinion of the Second Circuit Court of Appeals

is attached hereto as Exhibit A. The defendant was

convicted after trial for violating Sections 18, United

States Code, (2); 18 United States Code, Section 846

(conspiracy to violate the narcotics laws.)

Petitioner Dewees, along with other defendants and

possibly petitioners, Leroy Perry, Arthur Gibbons, Charles

Cameron, Willie Patterson and Leroy Butler, were tried

and convicted in the Eastern District of New York

(Mishler, J.) and sentenced to various terms of imprison-

ment of from probation to fifteen years. The petitioner

had been released on bail pending his appeal to the Second

Circuit Court of Appeals. A motion for a stay of the

mandate and for bail pending ceritorari to the Supreme

Court of the United States was submitted on June 5,

1981. There has been no decision on this application as

of this date.

B. Jurisdiction

The judgment of the Court of Appeals was entered

on May 18, 1981, and the jurisdiction of this Court is

invoked under Rule 19 of the Supreme Court Rules and

Title 28, United States Code, Section 1254(1) on the

ground that the review by the Supreme Court by writ of

certiorari is sought of a judgment of affirmance on appeal

by the United States Court of Appeals for the Second

Circuit.

C. United States Constitution and the Statutes

18 United States Code, Section 2;

18 United States Code, Section 846.

2

D. Summary Statement of Matters Involved

The above petitioner, along with several others, was

arrested in 1979 and charged with violating the federal

narcotic laws. The evidence adduced against petitioner-

appellant Dewees came from co-conspirators Gerald

Gewirtz and Frank Lucas. Lucas admitted dealing in

narcotics from 1964 through 1976 and is currently serv-

ing a 75 year term. He was permitted to testify to re-

ceiving mannite from Dewees in 1974 (prior to the con-

spiracy.) Gewirtz testified that he dealt with Dewees

and sold him a substantial amount of mannite and

quinine.

Photographs were offered showing petitioner had in

his possession several boxes at different times which gov-

ernment witnesses characterized contained mannite. The

only other issue concerning Dewees was a post-arrest

statement where Dewees allegedly stated to the arresting

officer, “This must be for a conspiracy because I haven’t

made any moves lately.” Over objection, the government

witness was allowed to characterize that statement and

interpret it as meaning “Moves mean narcotics and do not

mean dealing in mannite.”

E. Reasons For Granting Writ

This Court should grant a writ of certiorari to clarify

its decision in a Chicago case where certiorari was granted

concerning the fact that drug paraphernalia laws were

vague and unconstitutional. In order for a person to be

convicted for the crime of conspiring to violate the nar-

cotics laws, they must notice the scope and purposes of

the conspiracy. In this particular case, the scope and

purposes of the conspiratorial agreement, if any, between

Dewees and co-conspirator Gewirtz was to sell mannite

and quinine. Under existing laws, mannite and quinine

8

are not violations of the heroin laws and their prohibitive

or permissible use is not clearly defined in existing sta-

tutes. Petitioner’s contention on appeal was that the

prejudicial spillover of evidence introduced at trial de-

prived him of a fair trial and that petitioner Dewees did

not have knowledge of the extent of the conspiracy, if in

fact there was a conspiracy.

As Justice Holmes wrote, a conspiracy is a partner-

ship in criminal purpose, United States v. Kissel, 218

U.S. 601, 608 (1910), but that purpose must be specific,

United States v. Ingram, 360 U.S. 672 (1960), and must

be common to all members of the conspiracy, Blumenthal

v. United States, 332 U.S. 5389 (1945.)

Where a particular defendant lacks either specific

intent to violate the statute which is charged as the object

of the conspiracy, ¢.g., United States v. Crimmins, 128

F.2d 271 (2d Cir., 1941), or where he is a member of

one of a number of separate schemes alleged as a single

conspiracy, Kotteakos v. United States, 328 U.S. 750

(1946), his conviction of conspiracy cannot stand. See

generally Developments in the Law; Criminal Conspiracy,

72 Harv. L. Rev. 920 (1959); Note, Federal Treatment

of Multiple Conspiracies, 57 Colum. L. Rev. 887 (1957.)

And, where specific intent is required, the judge’s

charge must instruct the jury that the element of actual

knowledge must be found, United States v. Falcone, 109

F.2d 579, 581 (2d Cir.), aff'd. 311 U.S. 205 (1940.)

Judge Hand’s decision in United States v. Crimmins,

supra, stated, “Where the crime charged is conspiracy, a

conviction cannot be sustained unless the government es-

tablishes beyond a reasonable doubt that the defendant

had the specific intent to violate the substantive statute.”

4.

CONCLUSION

in conclusion, the writ of certiorari should be

granted and the court, in the exercise of its power,

should order the judgment of conviction reversed.

Respectfully submitted,

JOSEPH I, STONE

Attorney for Petitioner

Member of the Bar of the

Supreme Court of the United States

Office & P.O. Address

277 Broadway

New York, New York 10007

APPENDIX

la

Opinion of Oakes, Circuit Judge

JEROME H. FIELD, Brooklyn, N.Y., for Ap-

pellant Leroy Perry.

LAWRENCE K. FEITELL, New York, N.Y.

(Ozro T. Wells, New York, N.Y., on the

brief), for Appellant Leroy Butler.

LAWRENCE K,. FEITELL, New York, N.Y., for

Appellant Charles Cameron.

IRVING PERL, New York, N.Y., for Appel-

lant Donald Dewees.

MARGUERITE SPENCER HINES, New York,

N.Y., for Appellant Arthur Gibbons.

PETER J. MALONEY, New York, N.Y. (Harold

B. Foner, Brooklyn, N.Y., on the brief),

for Appellant Willie Earl Patterson.

LAURENCE A. URGENSON, Assistant United

States Attorney (Edward R. Korman,

United States Attorney for the Eastern

District of New York, Harvey M. Stone,

Victor J. Rocco, Assistant United States

Attorneys, on the brief), for Appellee.

OAKES, Circuit Judge:

This case, dealing with the Comprehensive Drug

Abuse Prevention and Control Act of 1970, 21 U.S.C.

$$ 841(a) (1), 846, is here on appeal from judgments of

conviction in the United States District Court for the

Eastern District of New York, Jacob Mishler, Judge.

This appeal presents a novel question—whether mem-

bers of a single distribution network for substances

(mannite and quinine), which are themselves legal un-

controlled but which are used as agents for cutting

5

2a

Opinion of Oakes, District Judge

heroin, can be prosecuted for one conspiracy by virtue

of their common source, their knowledge of one

another’s position in the network, and their intent that

the uncontrolled substances would be used as cutting

agents, despite the fact that the conspirators were simul-

taneously involved in different independent networks

which distributed the illegal element, heroin. Put an-

other way, where the raw heroin utilized for manu-

facture of the final “street” product did not come from a

common source or from a new common pool, may there

be conspiratorial liability for selling uncontrolled dilutant

compounds to the different and, so far as appears, un-

connected heroin dealers? My colleagues affirm on the

basis that appellants were properly convicted under 21

U.S.C. § 846 for conspiracy to violate 21 U.S.C. § 841

by aiding and abetting the distribution of heroin.’ I

disagree, but because two of the principal alleged co-

1The appellants were sentenced as follows:

On December 7, 1979, appellant Willie Earl Patterson

was sentenced to a prison term of seven years, a special

parole term of five years, and fined $10,000. Appellant

Charles Cameron was sentenced to a prison term of five

years and a special parole term of five years. The court

suspended imposition of sentence upon appellant Leroy

Perry and imposed a five-year term of probation to run

concurrently with a special parole term imposed on May

11, 1978, in the Southern District of New York, see United

States v. Gibbons, 602 F.2d 1044 (2d Cir.), cert. denied,

444 U.S. 950 (1979).

On December 14, 1979, appellant Arthur Gibbons was

sentenced to a prison term of thirteen years, five months,

and a special parole term of life'to run concurrently with

a sentence imposed on May 9, 1978, in the Southern Dis-

trict of New York, see Gibbons, supra.

On December 21, 1979, appellant Leroy Butler was sen-

tenced to a prison term of fifteen years, a special parole

term of ten years, and fined $25,000. Appellant Donald

Dewees was sentenced to a prison term of eight years and

a special parole term of twelve years.

3a

Opinion of Oakes, District Judge

conspirators were themselves substantial heroin dealers

I would hold that any error as to them (and their re-

spective confederates) was harmless. I would, however,

reverse as to appellant Donald Dewees.

FACTS

The facts need not be spelled out in great detail.

One Canadian pharmaceutical source of mannite and

quinine, Joel Merling, sold vast quantities of these un-

controlled substances which are, and in certain cases were

proven to be, used as heroin cutting agents, or “dilutants”

(although they can be used, respectively, for laxative or

medicinal purposes), to a New Yorker, Hyman Lieber-

man. Lieberman stored the substances in his store on the

lower East Side of Manhattan and resold them with the

aid of Israel (Paddy) Pollack. Pollack was friendly with

and had access to various members of the black com-

munity in Harlem, including the appellants and other

people in the drug business.

In July of 1974 Lieberman and Pollack employed

Gerald Gewirtz to pick up and unload incoming ship-

ments of mannite and quinine, and to make deliveries

to Pollack’s customers. Gewirtz, apprehended on another

charge in June 1976, became an informant and there-

after for six months made deliveries of some seventy-

four boxes of mannite weighing twenty pounds each to

appellants, their apartments, their vehicles, their stores

or shops, and, in the case of Leroy Butler, his New

Jersey home. These deliveries were monitored, that is,

they were under police surveillance. Sales prices to appel-

lants totaled tens of thousands of dollars, and credit was

extensively used. Gewirtz testified as to heavy mannite-

quinine traffic and his deliveries in late 1976 were sub-

stantiated by photographs and tape recordings.

The other chief Government witness was Frank Lucas,

the well-known Harlem drug trafficker who is currently

4a

Opinion of Oakes, District Judge

serving consecutive federal and state prison terms totaling

seventy years. Lucas testified as to transactions with

appellant Butler throughout 1974 in which Butler gave

him mannite and quinine in exchange for heroin. These

transactions took place at the Audubon Garage in

Washington Heights. The garage was owned by a cor-

poration in which Butler was a stockholder and on behalf

of which appellant Arthur Gibbons at one point served

as a leasing agent. Lucas on occasion played cards with

Butler and Pollack at the Audubon Garage, and Gewirtz

made a number of mannite-quinine deliveries there.

Lucas’s and Butler’s dealings were arranged during

meetings either at a Harlem social club or at the Bridge

Apartments (located across the street from the Audubon

Garage) where Butler had an apartment and where, from

time to time, Gewirtz also brought mannite and quinine

to Butler or to Willie Earl Patterson. Lucas testified to

three sales of heroin to Butler in 1974: one in late spring

or early summer of a half kilo paid for by Butler with

$€* 900 and an amount of mannite and quinine; a second

in n.id-summer of a half kilo delivered to Butler at the

Bridge Apartments; and a third sale in late 1974 of a

half kilo paid for in “cash and cut.”

Lucas also testified to appellant Charles Cameron’s

association with Butler, as well as Cameron’s own state-

ments about delivering “bundles” (packages containing

tifty-five bags of heroin) for Butler, later distributing

them in Washington, D.C., and Miami, and meeting with

a source for heroin passingly familiar to regular readers

of Wecond Circuit opinions.? In addition, Gewirtz testified

2We refer to Ralph “The General” Tutino, who appeared

among the dramatis personae in, e.g., United States v. Barnes,

604 F.2d 121 (2d Cir. 1979), cert. denied, 446 U.S. 907 (1980);

United States v. Tramunti, 513 F.2d 1087 (2d Cir.), cert. denied,

423 U.S. 832 (1975).

5a

Opinion of Oakes, District Judge

that Pollack told him that Cameron was a heroin dealer

whose payment was guaranteed by Butler and to whom

Pollack sold as a favor to Butler, thus tying Cameron to

Butler during the period of the indictment. Cameron

himself also stipulated that he received three boxes of

mannite in 1976 intending to sell and distribute it with

knowledge and intent that it would be mixed with heroin.

Lucas further testified to purchases of mannite and

quinine from appellant Donald Dewees and his sale to

Dewees of an eighth of a kilo of heroin in 1974, as well

as Dewee’s complaints about needing higher quality

heroin. The record given no indication, however, that

during the period of the conspiracy Dewees was a heroin

dealer,’ though he was tied to Cameron, who, immediately

after the first delivery to him by Gewirtz, went to one of

Dewees’s bicycle stores at 125th Street and Fifth Avenue.

Dewees was also linked to Butler by way of a payment

book in Butler’s possession bearing the name Arthur

Dewees, Arthur being appellant’s middle name. After

his arrest and Miranda warnings Dewees commented that

his arrest “must be for conspiracy because he hadn’t made

any moves [i.e., purchases or sales of narcotics] for a

long time.” And in the course of three deliveries of

mannite or quinine by Gewirtz, Dewees gave him or

Pollack a total of $20,400 for Pollack or Lieberman.

Appellant Patterson, who owned a variety shop at

125th Street and Fifth Avenue,‘ was even more closely

tied to Butler. On four occasions deliveries were made

to him at the Bridge Apartments garage between 178th

*In one conversation, when Gewirtz got too friendly for De-

wees’s taste, Dewees stated that he just made pennies and did

not know what his customers did with the mannite.

* Patterson’s variety store apparently was a few doors away

from one of appellant Dewees’s bicycle shops.

6a

Opinion of Oakes, District Judge

and 179th Streets, across from the Audubon Garage where

Gewirtz had previously delivered, and was subsequently

to deliver, mannite for Butler. When stopped on one

occasion after leaving the Bridge Apartments garage,

Patterson claimed that the boxes (of mannite) in his car

trunk contained popcorn. Testifying in his own defense

Patterson conceded that he had known Butler and had

been at Butler’s New Jersey home (where various de-

liveries were made), though not in 1976, despite the fact

that a detective observed his brown Cadillac there on

October 14, 1976. Patterson also testified to being at

the Butler-owned Audubon Garage (where some deliveries

were made to Butler), but only to use the parking facili-

ties.

Gibbons, who owned Joe’s Barbershop and was him-

self a street dealer, and Leroy Perry, the “old man” who

worked for Gibbons, bought large quantities of mannite

and quinine from Pollack for which Gibbons was often

in debt. Gibbons and Perry are tied if at all to the Butler

heroin enterprise only by the following facts: on one oc-

casion Gewirtz picked up a bag of quinine from Perry

at the Eighth Avenue and 131st Street barbershop, which

he delivered together with a box of mannite on an “emer-

gency” basis (according to Pollack) to Dewees; Gibbons

stated after his arrest (and Miranda warnings) that he

had bought heroin from Pollack at the Audubon Garage,

well uptown from the barbershop; Gibbons stipulated that

he had leased the Audubon Garage in 1974 on behalf of

the 264 Audubon Corporation to one Ellie Williams and

one Isaac Hamilton, indicating a possible garage re-

lationship between Gibbons and Butler.’

5 Gibbons and Perry also stipulated to separate conversations

in 1977 with others relating to heroin or mannite sales. Gibbons’s

conversations were with two of his codefendants in United States

v. Gibbons. 602 F.2d 1044 (2d Cir.), cert. denied, 444 U.S. 950

(1979).

Ta

Opinion of Oakes, District Judge

DISCUSSION

A. Jury Instructions

The appellants object to that portion of the jury

charge quoted in the margin’ on the basis that it failed

to restrict the conspiracy of which they were accused

to a conspiracy whose object was the distribution of

heroin.’ Judge Mishler did tell the jury that “[t]he con-

spiracy charged in this indictment is a conspiracy to deal

in heroin.” He advised the jury that neither mannite nor

quinine was a controlled substance, and that the charge

was conspiracy to distribute a controlled substance or to

possess with intent to distribute a controlled substance.

The court also repeatedly charged, however, that “(t]he

conspiracy charged in this indictment is limited to the

alleged conspiratorial activity relating to dealing in

®*The conspiracy charged in this indictment is limited to the

alleged conspiratorial activity relating to dealing in manite

[sic] and quinine, and imported by Lieberman and Pollack, and

then sold and distributed by Lieberman, Pollack and Gewirtz

to Butler, Patterson, Donald Dewees, Andre’ Dewees, Arthur

Gibbons, Leroy Perry and Charles Cameron.

This is the conspiracy the government is required to

prove.

What the evidence in this case must show . . . is that the

members [of the conspiracy] in some way .. . came to a

mutual understanding to deal in the manite [sic] and/or quinine

that was exported from Canada... .

* The indictment also could be viewed as ambiguous as to the

conspiracy charged. The indictment states that it was part of the

conspiracy both that “certain of the defendants and co-conspira-

tors . . . would receive quantities of mannite and quinine to be

mixed with heroin” and that “various defendants and co-con-

spirators would knowingly and intentionally distribute quantities

of heroin.” However, we believe that these specifications should

be read solely as alleged as overt acts, and that in any event

Judge Mishler’s charge to the jury resolved any possible ambi-

guity.

8a

Opinion of Oakes, District Judge

manite [sic] and quinine,” and that the Government had

to prove that the defendants had agreed “to deal in

manite [sic] and quinine with the intent and with the

knowledge that it was to be used for mixing with heroin.”

After careful review of the charge as a whole we

essentially agree with appellants’ assertion and con-

clude that the jury charge centers on the allegation that

the appellants had agreed to distribute diluents with the

intent that they be used in heroin distribution, rather

than on the allegation that they had agreed directly to

distribute heroin. We believe that the intention on the

part of the appellants that their concerted efforts aid the

distribution of heroin defines what the trial judge meant

when he said that the conspiracy charged was “a con-

spiracy to deal in heroin,” and that no juror could

reasonably have understood those instructions to mean

that in order to convict the jury had to find that the de-

fendants were all part of one heroin distribution network.

Thus we conclude, on the basis both of the charge and the

eolloquy preceding it, that the defense attorneys were

not misled as to the elements which Judge Mishler

deemed the Government must prove. Having so con-

cluded, we reach the principal question, whether those

elements charged constitute a conspiracy in violation of

21 U.S.C. § 846.

In addition, the judge properly included in the jury

charge the possibility of multiple conspiracies, in langu-

age which we substantially approved in United States v.

Cambindo Valencia, 609 F.2d 608, 625 (2d Cir. 1979);

United States v. Taylor, 562 F.2d 1345, 1851 (2d Cir.),

cert, denied, 482 U.S. 909 (1977); and United States v.

Tramunti, 518 F.2d 1087, 1107 (2d Cir.), cert. denied,

423 U.S. 832 (1975).*

® The court charged, “to find a defendant guilty you must find

that he was a member of that conspiracy charged in the indict-

[Footnote continued on following page]

9a

Opinion of Oakes, District Judge

B. Conspiracy

On the key question in the case my colleagues are

of the opinion that appellants were all shown to have

agreed to distribute diluents with the intent that they

be mixed with heroin and distributed by one or more

heroin networks and that this was sufficient to sus-

tain a conviction under 21 U.S.C. § 846 for conspiring

to violate 21 U.S.C. § 841 by aiding and abetting the

distribution of heroin. They hold that the knowing

supply of a raw material necessary for the commis-

sion of a crime by another constitutes aiding and

abetting that crime. Under 18 U.S.C. §2(a) whoever

“aids, abets, counsels, commands, induces or procures”

the commission of a crime is punishable “as a principal,”

and under 18 U.S.C. § 2(b) whoever “causes” the com-

mission of a crime is likewise punishable “as a principal.”

While conspiracy is a crime distinct from the substantive

crime which is the object of the conspiracy, 18 U.S.C.

§ 2 does not create a separate crime. It simply makes an

aider and abettor a principal, and one who aids and abets

a violation of a statute has violated that statute. Nye &

Nissen v. United States, 336 U.S. 613, 618-20 (1949);

United States v. Oates, 560 F.2d 45, 53-55 (2d Cir. 1977).

They point to other circuits that have affirmed con-

victions for conspiracy to aid and abet a crime, United

States v. Marino, 617 F.2d 76, 87 (5th Cir. 1980)

(affirming a “conviction for unlawfully conspiring to

aid and abet the crime of bail jumping”), or conspiracy

to “cause” another to commit a crime. United States v.

Giese, 597 F.2d 1170, 1179 (9th Cir.) (conspiracy to

cause others to destroy government property), cert. de-

ment and not some subsequent conspiracy” (emphasis added).

The word “subsequent” was used here in place of the word

“other” in the charge approved in other cases, but the defendants

did not object to this.

10a

Opinion of Oakes, District Judge

nied, 444 U.S. 979 (1979) ; United States v. Lupino, 480

F.2d 720, 724 (8th Cir.) (conspiracy by at least four indi-

viduals to cause one of them to receive a firearm unlaw-

fully), cert. denied, 414 U.S. 924 (1973); United States

v. Lester, 368 F.2d 68, 72-73 (6th Cir. 1966) (conspiracy

to violate civil rights by causing a false arrest), cert.

denied, 385 U.S. 1002 (1967). In these cases the con-

spiracy was a violation of the general statute, 18 U.S.C.

§ 371, making it a crime to conspire “to commit any

offense against the United States.” The courts reasoned

that an act made criminal by 18 U.S.C. § 2 is an “offense”

against the United States and had no difficulty in finding

a conspiracy to commit an inchoate offense. See also

Singer v. United States, 323 U.S. 338 (1945) (holding as

a matter of statutory construction that members of a con-

spiracy to aid one of their number to evade the draft

violated the draft statute).

My colleagues point out that there appear to be no

reported cases involving a conspiracy to aid and abet

violations of the drug laws. But they hold to the view

that there is no reason why the result should be different.

This is because 21 U.S.C. § 846 refers to any conspiracy

whose object is “to commit any offense defined in this

subchapter.” The crucial language is identical to that

used in 18 U.S.C. § 871, and, they maintain, the congres-

sional purpose to strengthen remedies against organized

drug traffic, United States v. Bommarito, 524 F.2d 140,

144 (2d Cir. 1975), hardly suggests a narrower reading.

The conspiracy need not be, their argument runs, to

aid only one identified heroin distribution network. To

show a violation of 18 U.S.C. §2 it is not necessary to

identify any principal at all, provided the proof shows

that the underlying crime was committed by someone.

United States v. Gleason, 616 F.2d 2, 20-21 (2d Cir.

1979), cert. denied, 444 U.S. 1082 (1980), and cases

cited. Moreover, a defendant who simultaneously aids

lla

Opinion of Oakes, District Judge

more than one criminal venture may be found guilty for

aiding each. A single conspiracy may have more than

one criminal object, and there is no reason why a single

conspiracy whose objects are to aid and abet different

heroin distributors should not be encompassed by 21

U.S.C. § 846.

It is true, my colleagues state, that the indictment

and the jury instructions did not spell out in so many

words that defendants could be found guilty of “con-

spiring to aid and abet” the distribution of heroin.

Nor were those words mentioned by the prosecutor.

But the precise language, they hold, is unimportant

provided that all the elements necessary to find a

conspiracy to aid and abet were fairly put to the jury.

Certainly, they maintain, the provisions of 18 U.S.C.

§2 can be read into an indictment which specifically

charges only a substantive offense. Jin Fuey Moy v.

United States, 254 U.S. 189 (1920); United States v.

Walker, 621 F.2d 163, 165-66 (5th Cir. 1980); United

States v. Knickerbocker Fur Coat Co., 66 F.2d 388, 390

(2d Cir.), cert. denied, 290 U.S. 673 (1933).

To convict a defendant as an aider and abettor the

Government must show only “that he in some sort associ-

ate himself with the venture, that he participate in it

as in something that he wishes to bring about, that he

seek by his action to make it succeed.” United States v.

Peoni, 100 F.2d 401, 402 (2d Cir. 1988). The elements

of the offense are: the commission of the underlying offense

by someone, a voluntary act or omission, and a specific

intent that such act or omission promote the success of the

underlying criminal offense.

In a conspiracy to aid and abet, my colleagues’ position

continues, two different specific intents must be shown:

that the individual intentionally agreed with the other

conspirators and that one of their common objects was

an intent to further the underlying offense. Chief Judge

12a

Opinion of Oakes, District Judge

Mishler’s charge to the jury contained both of these ele-

ments, and required the jury to find that the defendants

intended that the diluents be used in the making and

distribution of heroin.

To find such a conspiracy it is, of course, necessary

to show that the defendants have agreed to pursue a

common criminal objective. It is my colleagues’ position

that as in the case of any other conspiracy involving a

drug related “enterprise,” the agreement to pursue the

objective of aiding several heroin distribution networks

can be inferred from each individual’s knowledge that

others were performing related tasks and his conscious

dependence on them for his own profits. This in turn can

be inferred from the nature of the operation and the

individual’s place within it. United States v. Barnes, 604

F.2d 121, 154-55 (2d Cir. 1979), cert. denied, 446 U.S.

907 (1980); United States v. Taylor, 562 F.2d 1345,

1352 (2d Cir.), cert. denied, 482 U.S. 909 (1977). The

jury was entitled to draw these inferences, although they

may be less compelling in the case of a diluent distribu-

tion network than in the case of a single network dis-

tributing heroin. It would of course be insufficient to find

merely that different members of a group were each aid-

ing different heroin distributors. To show a conspiracy

it is not enough to prove that a group of individuals had

similar criminal aims. Kotteakos v. United States, 328

U.S. 750 (1946).

The evidence examined in the light most favorable to

the Government is sufficient—in my colleagues’ view—to

support a verdict finding appellants guilty of a conspiracy

to aid and abet the distribution of heroin. The existence

of a conspiracy was amply demonstrated by the testimony

of Gewirtz as to his suppliers and deliveries of the dilu-

ents and by inference from each customer’s constructive

knowledge that other customers and suppliers were in-

13a

Opinion of Oakes, District Judge

volved. The singularity of the conspiracy is evidenced,

my colleagues maintain, by the single distribution network

and the ties among the various defendants (particularly

the close connections among Butler, Cameron, Patterson

and Dewees, and between Perry and Gibbons), the opera-

tion by Pollack, a supplier, for a time out of Butler’s

garage, and the emergency delivery of quinine from Perry

to Dewees. That the appellants’ object and intent was

to aid the distribution of heroin through the distribution

of diluents is evidenced by the connections they individ-

ually possessed to heroin distribution networks, the mas-

sive quantities in which they dealt, and the various

stipulations (Cameron) or inculpatory statements (De-

wees, Gibbons, Perry) relating to their knowledge and

intent. The particular heroin distribution networks aided

were those of Butler and Gibbons. It is unnecessary to

show that the conspiracy actually aided any particular

sale of heroin since a conspiracy can be found though its

object has not been achieved.

My colleagues do point to a difference between punish-

ing an agreement to commit an act intended to aid

another crime (a “conspiracy to aid and abet”) and

imposing conspiratorial liability on one who, without

agreement, merely assists conspirators in achieving their

object (an “aiding and abetting of a conspiracy’). While

the first is appropriate, they say, the second is not.

United States v. Middlebrooks, 618 F.2d 273, 278-79 (5th

Cir.), modified in part, 624 F.2d 36 (5th Cir. 1980). But

in this case, they hold, there is clear evidence that a con-

spiracy existed whose object was to aid and abet a crime

and that the defendants intended to assist in bringing

about that crime through their concerted actions.

My own approach is entirely different. I would not

reach the question whether these appellants could have

been found guilty of conspiracy to aid and abet the distri-

14a

Opinion of Oakes, District Judge

bution of heroin. This was not the charge under the

indictment or the instruction of the court. Rather, we

look to the evidence to determine whether it was sufficient

to submit the issue of single-multiple conspiracies to the

jury, as we said is “ordinarily” for the jury in United

States v. Armedo-Sarmiento, 545 F.2d 785, 789 (2d Cir.

1976), cert. denied, 480 U.S. 917 (1977).

On the key question in the case I start with the propo-

sition that an individual, knowing the nature of the

enterprise and the interdependence of its members, can

become a member of a heroin conspiracy merely by sup-

plying legal diluent chemicals to it. See United States

v. Barnes, 604 F.2d 121, 154-55 (2d Cir. 1979), cert.

denied, 446 U.S. 907 (1980). Presumably such a supplier

could also be convicted of (although these appellants were

not charged with) a substantive narcotics offense as an

aider and abettor under 18 U.S.C. §2. But in each such

case the Government must show evidence of the particular

narcotics operation that the supplier aided. See United

States v. Licursi, 525 F.2d 1164, 1167 (2d Cir. 1975) ;

Developments in the Law—Criminal Conspiracy, 72 Harv.

L. Rev. 920, 984 (1959). The question here in my view

then becomes whether the appellants can be convicted for

an agreement to distribute uncontrolled substances’ to

various heroin operations.”

To be sure, there were some “horizontal” links among

appellants: Perry and Gibbons were associates, as were

® There is some evidence in the legislative history of the Com-

prehensive Drug Abuse Prevention and Control Act of 1970 that

Congress was urged to control diluents, but it did not do so. See

Controlled Dangerous Substances, Narcotics and Drug Control

Laws: Hearings on H.R. 18583 Before the House Comm. on Ways

and Means, 91st Cong., 2d Sess. 329-30 (1970).

10 At the very least, the heroin operations of Butler and Gib-

bons were not shown to be the same.

15a

Opinion of Oakes, District Judge

Butler, Cameron, and Patterson, and Perry gave some

quinine back to Gewirtz when Dewees needed it. But it

is clear to me that the basic structure of this “enterprise,”

see United States v. Cambindo Valencia, 609 F.2d 603,

623 (2d Cir. 1979), cert. denied, 100 S. Ct. 2163 (1980),

is that of a “spoke” conspiracy, see Kotteakos v. United

States, 328 U.S. 750 (1946), with diluents going from

a central source to two or more distributors who operated

independently of one another. The cases dealing with

narcotics conspiracies, however, all involve combinations -

in which there was a common unlawful element—either a

controlled dangerous drug coming from a common source

and distributed by a combination, or a common narcotic

pool drawn from various sources and utilized by the com-

bination. See, e.g., United States v. Taylor, 562 F.2d

1245, 1850-54 (2d Cir.), cert. denied, 4382 U.S. 909

(1977) ; United States v. Tramunti, 513 F.2d 1087, 1105-

07 (2d Cir.), cert. denied, 423 U.S. 882 (1975). None

involves a common source of diluents and various narco-

tics networks. A single conspiracy cannot be constructed

in my view where the source is distributing diluents—

legal substances—which ultimately go out to “spokes”

that are the agents of different heroin conspiracies. See

Kotteakos v. United States, 328 U.S. 750 (1946) (simi-

larity of illegal purpose of each spoke in dealing with hub

does not constitute a common purpose and a conspiracy

among the spokes).

Thus here, as in United States v. Cambindo Valen-

cia, 609 F.2d 608, 626 (2d Cir. 1979), cert. denied, 100

S. Ct. 2163 (1980), the Government appears to have

presented a series of transactions involving at least two

groups who were, if anything, “friendly” competitors in

the Harlem drug trade, and who were not fused into a

single enterprise despite receiving diluents from the same

distributor. Although the indictment charges only one

l6a

Opinion of Oakes, District Judge

conspiracy, the proof shows more than one. But this

variance is not necessarily fatal and does not automatic-

ally require reversal. See United States v. Miley, 513

F.2d 1191, 1207-08 (2d Cir.) (affirming convictions de-

spite variance), cert, denied, 423 U.S. 842 (1975). “The

true inquiry ... is not whether there has been a variance

in proof, but whether there has been such a variance as

to ‘affect the substantial rights’ of the accused.” Berger

v. United States, 295 U.S. 78, 82 (1935). It therefore

in my view becomes necessary to inquire, as in Cambindo

Valencia, into the possible prejudice against particular

defendants from being tried as members of a single

conspiracy, the strength of the evidence offered to show

the existence of particular conspiracies, and the member-

ship of each defendant in one or more of such conspiracies

involving the actual sale of heroin.

Appellant Butler is readily identifiable as a large-scale

trafficker in heroin over a long period of time. Gibbons

is also clearly the operator of a separate enterprise. The

question, then, is whether the prejudice from evidence

relating to the discrete Butler conspiracy spilled over to

affect the charge against Gibbons and his confederate

Perry, or vice versa, Without such prejudicial spillover,

there is merely a variance between the single conspiracy

charged and the two proved at trial, which would not

warrant reversal. Only if prejudicial spillover is shown

must a conviction be reversed. See Cambindo Valencia.

609 F.2d at 628-29; United States v. Bertolotti, 529 F.2d

149, 155-58 (2d Cir. 1975).

On the spillover question I have no problem whatso-

ever with Butler and his confederate Cameron. There

was substantial evidence that they were engaged in a

joint criminal enterprise involving the sale of heroin as

to which the purchase of diluents was a necessary pre-

liminary step in the manufacture of the street product.

17a

Opinion of Oakes, District Judge

Butler and Cameron were operating on a large scale,

Cameron sometimes alone to be sure but often as a

lieutenant of Butler.

The evidence is not as clear-cut regarding Gibbons

and Perry. Although Lucas’s testimony—which must

have been quite powerful coming from a substantial drug

dealer himself—strongly indicted Butler and Cameron,

it did not relate at all to Gibbons and Perry. Nevertheless

Gibbons, after being advised of his constitutional rights,

stated to the arresting officers that he was receiving heroin

in eighth of a kilo quantities from Paddy Pollack, that

several of these transactions took place at the Audubon

Garage between 178th and 179th Streets in Manhattan,

that the heroin would be cut into four or five hundred

quarters, and that he made $12,000 from each eighth of

a kilo of heroin. Without such statements, Gibbon’s con-

viction would have to be reversed in my view, but with

them, it does not.’ I would resist the temptation, how-

ever, to tie the Gibbons enterprise to Butler through either

their common source of diluents (the Audubon Garage

locale of the Pollack transactions) or their possible joint

interests in the 264 Audubon Corporation which owned

the garage.

The question would still remain whether the other

appellants’ convictions may properly be upheld. Though

the question is in a sense academic in the light of my

colleagues’ view, I believe that the appellant Patterson

can be tied to the Butler conspiracy. The fact that de-

liveries were made to him at the Bridge Apartments op-

posite the Audubon Garage is not necessarily compelling

to show a link between Patterson and Butler. For all that

1 Of course this assumes that it be found that Gibbons con-

spired with someone else (Perry) to violate 21 U.S.C. § 841 (a) (1).

18a

Opinion of Oakes, District Judge

appears the Bridge Apartments garage was suggested by

Pollack. On the other hand, in testifying in his own

defense, Patterson conceded that he had known Butler

and that he had been at Butler’s New Jersey home, and

the jury could properly have found that he was observed

there by a detective on October 14, 1976. His veracity

was clearly in question by virtue of his claim, when he

was stopped on one occasion after leaving the Bridge

Apartments garage, that boxes of mannite he had in

the trunk of his car contained popcorn. There was also

ample evidence to the effect that Butler’s New Jersey

home was used as a heroin trading center, and I think

the jury could properly infer that Patterson was con-

nected to what I have termed the Butler conspiracy,

without prejudicial spillover from proof as to the

separate Gibbons conspiracy.

Dewees, too, could be tied to Butler—rather loosely

I say—by way of Butler’s payment book bearing

Dewees’s name and by the fact that Cameron, imme-

diately after an observed mannite-quinine delivery, went

to one of Dewees’s bicycle stores at 125th Street and

Fifth Avenue. But I cannot say that Dewees was not

prejudiced by spillover of the evidence as to Gibbon’s

heroin dealings. Therefore I would remand as to Dewees

for a new trial.

As for appellant Perry, who was something more

than a “mule” but something less perhaps than a

lieutenant for Gibbons, he nevertheless plainly knew,

and indeed he stipulated that he knew, the “cut” was

to be used in a heroin operation. Since he worked for

Gibbons, the jury could properly infer that he was in-

volved in Gibbon’s heroin operation, and on this basis

I see no prejudicial spillover from evidence regarding the

Butler conspiracy as to Perry. There remain a number

of other points for discussion, however.

19a

Opinion of Oakes, District Judge

C. Double Jeopardy

Appellants Gibbons and Perry make a_ double

jeopardy argument based on similar locale and a three-

month time overlap between the conspiracy charged here

and the conspiracy for which they were previously tried

and convicted in the Southern District of New York, see

United States v. Gibbons, 602 F.2d 1044 (2d Cir.), cert.

denied, 444 U.S. 950 (1979). But the two indictments

charged separate and distinct crimes. The instant case

involves dealing in mannite and quinine with knowledge

and intent that it be mixed with heroin for distribution,

from July 1974 through December 1976. The Southern

District conviction involved a conspiracy in which Gib-

bons and Perry served as a source of heroin—‘whole-

salers”—for at least two street sellers of heroin (also

charged in the Southern District indictment) from Sep-

tember 30, 1976, through March 2, 1978, a period

essentially subsequent to the termination of the con-

spiracy charged in the instant case. See Gibbons, 602

F.2d at 1046.

The Southern District case did include evidence of

two indictments involving diluents, but both occurred in

1977, falling outside the Eastern District indictment.

Thus, following the “same evidence” test—whether the

evidence required to support conviction in one of the

provecutions would have been sufficient to support con-

viction in the other prosecution—and giving special con-

sideration to the potential for abuse of this test in the

context of conspiracy prosecutions, see United States v.

Papa, 583 F.2d 815, 820 (2d Cir.), cert. denied, 429 U.S.

961 (1976); United States v. Bommarito, 524 F.2d 140,

146 (2d Cir. 1975); United States v. Mallah, 503 F.2d

971, 985-87 (2d Cir. 1974); cert. denied, 420 U.S. 995

(1975), we hold that the 1974-1976 Eastern District

diluent-heroin conspiracy was a crime distinct from the

subsequent 1976-1978 heroin wholesale operation charged

in the Southern District indictment.

20a

Opinion of Oakes, District Judge

D. Search Warrant

Butler argues that evidence seized from his New

Jersey home by officers from New Jersey, from New

York, and from the federal government pursuant to a

New Jersey warrant in June 1979 should have been sup-

pressed. The articles—cocaine paraphernalia, guns, and

$70,975 in cash found under the mattress in the master

bedroom "—were introduced as similar act evidence.

The affidavit supporting the warrant, sworn to by De-

tective Crowley of the Englewood, New Jersey, police

force, described 1976 incidents at the Butler house as

related by informant Gewirtz. It then skipped to 1979,

describing less direct evidence that Butler was still in

the drug business: television cameras at the front, side,

and rear of the house to spot surveillance; automobiles

(the usual Rolls Royces and Mercedes Benzes) linked to

trafficking in the driveway or speeding away upon sight

of the officers; and a statement by Mrs. Butler that,

“t]he Police know what Leroy is doing at the house, he

pays a lot of people, he conducts his business out of

the house every afternoon.” She further stated to the

officers that Butler did not live at the house and that

he just came there every day to conduct his business.

Although the affidavit omitted any reference to the

reliability of the informant Gewirtz, the 1976 infor-

mation was sufficiently corroborated by the 1979 events

to be considered. See, e.g., United States v. Rollins,

522 F.2d 160, 164-65 (2d Cir. 1975), cert. denied, 424

U.S. 918 (1976); United States v. Canestri, 518 F.2d

269, 272-73 (2d Cir. 1975). And staleness was not a

problem because evidence on both sides of the three-year

gap indicated an ongoing narcotics “business.” See Mapp

12 Butler told the searching officers that “they must have put

[the money] there.”

2la

Opinion of Oakes, District Judge

v. Warden, 581 F.2d 1167, 1171-72 (2d Cir.), cert. denied,

429 U.S. 982 (1976). Indeed, when combined with the

fact that Butler was a long-time suspected drug dealer,

the 1979 events alone might have been sufficient to estab-

lish probable cause to believe drugs were on the premises.

Bearing in mind, therefore, the deference accorded to the

magistrate, id. at 1172, we do not reverse his deter-

mination of probable cause to issue the warrant.

Butler also claims that the supporting affidavit was

false in that it referred to Pollack’s Mercedes Benz

being at the New Jersey house in May of 1979, which

was after Pollack had absconded, and that Butler was

entitled to a hearing upon motion under Franks v. Dela-

ware, 428 U.S. 154 (1978), to challenge the veracity of

the affidavit. But this issue was not raised until after

trial and, moreover, the fact that Pollack may have been

a fugitive from a New York narcotics indictment does

not demonstrate that the officer’s observations were mis-

taken.

E. Similar Acts

Appellants Butler and Cameron contend that the

trial judge improperly admitted evidence of certain

similar acts. Specifically, Butler challenges the admis-

sibility of various items seized during the search of

his home, and Cameron challenges the admission of

some of Lucas’s testimony. Even if it were error to

admit the evidence against Butler, on the assumption

that although there was a “knowledge” or “identity”

issue presented at trial of the kind justifying admission of

similar acts, this evidence should have been excluded as

more prejudicial than probative, see United States v.

Figueroa, 618 F.2d 934, 989 (2d Cir. 1980), this error

was harmless because of the nature and amount of other

evidence establishing Butler’s guilt.

22a

Opinion of Oakes, District Judge

As for Cameron’s objection, Lucas’s testimony that

he had had heroin dealings with Cameron in 1969 does

present some difficulty. In order to prevent admission

into evidence of a 1975 conviction Cameron had stipulated

that he had sold mannite on three occasions with know-

ledge of its ultimate use, thus, he argues, conceding the

issue of intent. But Cameron’s defense in this case was

that he had not joined the larger conspiracy charged.

Therefore, it was not knowledge of the use of mannite as

a cutting agent but rather intent to join the Butler heroin

consipracy that was at issue; and Cameron’s stipula-

tion regarding his prior mannite dealings did not dis-

pose of this point. It may seem difficult to under-

stand how 1969 events are relevant to show that in

1976 Cameron agreed to participate with Butler in a

heroin conspiracy, but Cameron’s defense was simply

that he was a little mannite dealer, and the similar act

evidence as to his large-scale 1969 narcotics dealings

with Lucas and Butler contradicted this. Thus, Lucas’s

testimony bore on whether Cameron was part of the

Butler conspiracy, and the district judge properly ruled

the testimony admissible.

F. Severance

Perry, Patterson, and Dewees complain that they

were prejudiced by the admission against the other

defendants of highly damaging evidence, including

inculpatory statements and stipulations as well as the

testimony on similar acts. Accordingly, they claim that

severance was required. We have considered and accepted

this in Dewee’s case. With respect to the other appellants,

however, none of the similar act evidence was likely, in

light of the cautionary instructions given, to prejudice

them. See United States v. Rosenwasser, 550 F.2d 806,

808 (2d Cir.), cert. denied, 484 U.S. 825 (1977). And

a defendant’s right to confrontation under Bruton v.

23a

Opinion of Oakes, District Judge

United States, 391 U.S. 123 (1968), does not come into

play unless the codefendant’s admission inculpates the

defendant as well. United States v. Wingate, 520 F.2d

8309, 318 (2d Cir. 1975), cert. denied, 428 U.S. 1074

(1976). That did not occur here.

G. Summation

Cameron and Patterson complain about numerous re-

marks during the Government’s summation. Absent

flagrant abuse, they can only object now to remarks

objected to below. United States v. Dibrizzi, 393 F.2d

642, 645-46 (2d Cir. 1968). But when appellants did

object below, the court properly gave corrective instruc-

tions. Furthermore, in light of the fact that the defense

lawyers attacked the credibility and honesty of the

Government’s case in their closings, the Government’s

statements vouching for witnesses were understandable if

not laudable; and the Government’s statements describing

the defense’s attack as a “desperate,” “struggling” tactic

were permissible rebuttal. See United States v. Prae-

torius, 622 F.2d 1054, 1060-61 (2d Cir. 1980).

The prosecutor’s closing statement, however, was close

to the line: “I submit to you that these defendants and

their counsel are completely unable to explain away their

guilt.” Although a jury might interpret this statement

as a comment on defendants’ refusal to testify, see United

States v. Bubar, 567 F.2d 192, 199 (2d Cir.), cert. denied,

434 U.S. 872 (1977), we believe that the trial judge’s

curative instructions rendered this harmless, see id. at

200.

H, Juror Requesting Librium

Appellants argue for reversal based on a note sent

from one juror to her mother during deliberations,

stating that she was having stomach problems, was

24a

Opinion of Oakes, District Judge

taking tranquilizers, and needed Librium. The same

juror cried when appellant Dewees was convicted. Ap-

pellants question her mental stability. See United States

v. Dioguardi, 492 F.2d 70, 78 (2d Cir.) (verdict may be

set aside only if there is “clear evidence of a juror’s

incompetence to understand the issues and to deliberate”),

cert. denied, 419 U.S. 873 (1974). Judge Mishler care-

fully made a post-verdict inquiry, see United States v.

Moten, 582 F.2d 654, 666 (2d Cir. 1978), and the juror

explained that she had cried when appellant Dewees was

found guilty because she “felt sorry” for his brother, who

had been a codefendant and was acquitted, and who had

wept openly when the verdict against Donald Dewees was

announced. The juror also recounted that the Librium

referred to in the note to her mother had been prescribed

by her physician three years earlier for an ulcer condition

which caused her discomfort during the trial, and stated

that she neither felt disoriented nor took tranquilizers

during the deliberations. Under these circumstances, and

in light of the judge’s own observations regarding the

juror’s demeanor, he quite properly decided—at least

absent any bizarre behavior by the juror—not to permit

further interrogation by counsel of the juror.

I. Investigator’s Character Evidence

Appellant Perry argues that the district court im-

properly excluded the testimony of a private investigator

hired by his wife, through whom Perry sought to intro-

duce evidence of his good reputation in the Harlem com-

munity. In the judge’s discretion he could properly

exclude this testimony as hearsay, because the private

investigator was merely going to testify as to a few

conversations he had had with one of Perry’s coworkers

at the barbershop, with the minister of Perry’s church,

and with a laundry proprietor. It is well established

that a character witness must be able to demonstrate his

25a

Opinion of Oakes, District Judge

own familiarity with the defendant’s reputation and his

competence to speak for the community. See Michelson

v. United States, 335 U.S. 469, 478 (1948).

J. Statements Pursuant to Plea Agreement

Appellant Perry also argues that his admission con-

cerning receipt of mannite and quinine at Joe’s Barber-

shop was made in connection with his offer to plead

guilty and, therefore, should have been excluded under

Federal Rule of Evidence 410. But when Perry advised

the Government that he would not plead guilty, he

violated his plea agreement, making it null and void. In

the words of the agreement itself, “[a]ny ... prosecution

may be premised upon any information provided by

Leroy Perry during the course of his cooperation and

such information may be used against Leroy Perry.”

Because Perry’s statements were made after the plea

agreement had been negotiated and executed with advice

of counsel, and not as part of an effort to gain further

concessions from the Government, and because the express

provisions in the agreement made the statements usable

against Perry, the court below, relying on United States

v. Stirling, 571 F.2d 708, 730-82 (2d Cir.), cert. denied,

489 U.S. 824 (1978), properly admitted them into evi-

dence.

K. Statements During Investigative Stop

Appellant Patterson argues that the court should have

suppressed the statement he made when stopped on June

17, 1976, that the boxes in the trunk of his car contained

popeorn. At trial the Government introduced evidence

that these boxes in fact contained mannite, and offered

Patterson’s remark as a false exculpatory statement. The

trial court properly held that the officers—who had pre-

viously observed the loading of boxes of mannite into

Gewirtz’s car, had followed Gewirtz to the Bridge Apart-

26a

Opinion of Oakes, District Judge

ments garage, and had seen Patterson exit the garage

shortly thereafter with what looked like two of the boxes

on his rear seat—had probable cause to believe that

Patterson was involved in a drug operation, and there-

fore, could stop his vehicle. In response to the officers’

request for some identification, Patterson had opened his

trunk to retrieve an article of clothing, at which time

three additional boxes, each similar in size to the ones

Gewirtz had just delivered, became visible. It was at

this point, when the police officers observed the boxes and

asked what was inside them, that Patterson replied “pop-

corn.” Because this investigative stop was based on

reasonable suspicion, see United States v. Tramunti, 513

F.2d 1087, 1104-05 (2d Cir.), cert. denied, 423 U.S. 832

(1975), and the officers’ request for identification, in

connection with which the boxes of mannite came into

plain view, was permissible, see United States v. Salter,

521 F.2d 1326, 1829 (2d Cir. 1975), Patterson’s state-

ment need not have been excluded from evidence.

L. Patterson’s Sentence

Appellant Patterson argues that his sentence was

unduly harsh and was not based upon an accurate pre-

sentence report. His sentence, however—a prison term

of seven years, a fine of $10,000, and a special parole of

five years—was well within the limits prescribed by 21

U.S.C. § 841(b) (1) (A), which specifies a maximum term

of fifteen years, a fine of not more than $25,000, and a

special parole term of at least three years. Appellant

Patterson’s argument in essence is that he was dealing

only in mannite and not in heroin. But as we have

recounted above, he was properly found to be a member

of a heroin conspiracy; his sentence for that was not,

as he contends, either cruel and unusual, or unduly harsh;

and of course we cannot, on appeal, review sentences

simply to see whether we would have reached the same

27a

Opinion of Oakes, District Judge

result, see Dorszynski v. United States, 418 U.S. 424,

440-41 (1974).

In connection with Patterson’s presentence report, the

judge struck any information as to Patterson’s alleged

heroin dealings which the Government conceded was in-

accurate. The judge also stated that he would disregard

certain other matters, called to his attention by defense

counsel, which were allegedly misleading or irrelevant.

Thus Patterson’s claim that his sentence was based on an

inaccurate report is without merit.

M. Presence of DEA Special Agent at Government

Counsel’s Table

Appellant Perry argues that the trial court improperly

allowed the Government’s DEA Special Agent Rice to

remain at the counsel table, despite a request under

Federal Rule of Evidence 615 that he be excluded from

the courtroom. But a Government investigative agent

falls within the exception in Rule 615(2) for “an officer

or employee of a party which is not a natural person.”

The legislative history of Rule 615 makes it clear that a

governmental investigative agent, even though he is also

a witness, may be designated to sit at the Government

counsel’s table. See S. Rep. No. 1277, 93rd Cong., 2d

Sess. 26 (1974), reprinted in [1974] U.S. Code Cong. &

Ad. News 7051, 7072-73.

Convictions of all appellants affirmed.

28a

Order to Amend Opinion

UNITED STATES COURT OF APPEALS

For THE SECOND CIRCUIT

79-1407, 79-1456,

79-1458, 79-1477,

79-1486, 79-1496

UNITED STATES OF AMERICA,

Appellee,

Vv.

LEROY PERRY, LEROY BUTLER, CHARLES CAMERON,

DONALD DEWEES, ARTHUR GIBBONS, and WILLIE

EARL PATTERSON,

Appellants.

het atin

The opinion of the court is hereby amended as fol-

lows:

At page 6773 of the printed slip opinion, at lines 13

and 14, the words “Butler heroin conspiracy” are deleted,

and the following words are inserted in lieu thereof:

“conspiracy charged”.

At page 6773 of the printed slip opinion, at lines 18

and 19, the words “Butler in a heroin conspiracy,” are

deleted, and the following words are inseretd in lieu

thereof: “other defendants in the conspiracy charged,”’.

At page 6773 of the printed slip opinion, at line 24,

the words “Butler conspiracy,” are deleted, and the fol-

lowing words are inserted in lieu thereof: “conspiracy

charged,”.

At the bottom of page 6773 and top of page 6774 of

the printed slip opinion, the words “We have considered

29a

Order to Amend Opinion

and accepted this in Dewee’s [sic] case. With respect to

the other appellants, however,” are deleted, and the

following words are inserted in lieu thereof: “While the

author would agree in respect to Dewees, but him only,

my colleagues believe that... .”

At page 6778 of the printed slip opinion, at line 17,

the entire line reading “properly found to be a member

of a heroin conspiracy;” is deleted, and the following

words are inserted in lieu thereof: “properly found to

be a member of the conspiracy charged, in my colleagues’

view, and of a heroin conspiracy, in the author’s; . vv

/s/ JAMES L. OAKES

/s/ ELLSWORTH A, VAN GRAAFEILAND

Circuit Judges.

/s/ EUGENE H. NICKERSON

District Judge.

80a

Order Denying Petitions for Rehearing

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States Court of Appeals

in and for the Second Circuit, held at the United States

Court House, in the City of New York, on the 13th day

of May, one thousand nine hundred and eighty-one.

No. 79-1407

79-1456

79-1458

79-1477

Ra 79-1486

79-1496

heen

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vs.

DONALD DEWEES, JOEL MERLING, ARTHUR GIBBONS,

HYMAN LIEBERMAN, LEROY PERRY, PETER ISRAEL

POLLACK, LEROY BUTLER, CLIFFORD JOSEPH PARAH,

W.E. PATTERSON, CHARLES CAMERON,

Defendants,

LEROY PERRY, ARTHUR GIBBONS, CHARLES CAMERON,

DONALD DEWEES, WILLIE EARL PATTERSON, LEROY

BUTLER,

Defendants-A ppellants.

hata

Petitions for rehearing containing suggestions that the

action be reheard in banc having been filed herein by

counsel for the defendants-appellants, Willie Ear] Pat-

terson, Leroy Butler, and Charles Cameron, Arthur

Gibbons, Leroy Perry, Donald Dewees,

3la

Order Denying Petitions for Rehearing

Upon consideration by the panel that heard the ap-

peal, it is

Ordered that said petitions for rehearing are DENIED,

Judge James L. Oakes dissenting as to appellant Donald

Dewees,

It is further noted that the suggestions for rehearing

in bane have been transmitted to the judges of the court

in regular active service and to any other judge on the

panel that heard the appeal and that no such judge has

requested that a vote be taken thereon.

/s/ A. DANIEL FUSARO

A. DANIEL FUSARO,

Clerk