Petition — Mont v. United States
Supreme Court brief1983
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SUPREME COURT, US.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM,
UNITED STATES OF AMERICA,
Respondent,
-V.7*
KENNETH THOMAS,
Petitioner.
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
MICHAEL YOUNG, ESQ.
90 Broad Street
New York, New York 10004
Tel.: (2)2) 509-5474
Attorney for Petitioner
No.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM,
UNITED STATES OF AMERICA,
Respondent,
-vV.-
KENNETH THOMAS,
Petitioner.
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
1. Whether the evidence was insufficient to establish
that appellant was guilty of the conspiracy charge.
2. Whether the district court erred in denying
appellant's severance motions.
3. Whether the district court erred in denying
appellant's motion to strike the agents' testimony that they
saw appellant engage in what “appeared to be drug transactions".
4. Whether the district court erred in refusing to
instruct the jury that his charge on aiding and abetting was
not applicable to the conspiracy charge.
5. Whether the district court erred in allowing the
government to introduce into evidence the testimony that when
appellant was arrested, he was in possession of a small vial
and some cellophane envelopes, some of which contained a residue
TABLE OF CONTENTS
Questions presented... ++ ++++eee ee eee
DRGs. 6 © 0 ¢ 66 6 6 6 0 e 6 eee wee
Jurisdiction. ..-+++s+s*seerreere ee &
Statement of the Case... +++ +e ee ee ee ®
Reasons for granting the writ. . +++ +++ se *
Concl us ion . . . . . . . . . . . . . . . . . . . . .
Appendix A - Decision of the United States Court of
Appeals for the Second Circuit...
TABLE OF AUTHORITIES
Cases
Blumenthal v. United States, 332 U.S. 539 (1948) ..
Cohen v. Western Hotels, Inc., 276 F.2d 26
(9th ese. 1960) .* . * . . . .* * . . . . .* . . . .
Duff v. Page, 249 F.2d 137
(9th Cir. 1957) . . . . . . . . . . . . . . . . .
Schillie v. Atchison, Topeca and Sante Fe Railroad,
222 F.24 810 (8th Cir. 1955) «+++ + ee ee
Glasser v. United States, 315 U.S. 60 (1942) . « © «
Kotteakos v. United States, 328 U.S. 750 (1946) . -«
United States v. Alexander, 415 F.2d 1352
(7th Cir. 1969), cert. denied, 397 U.S.
1014 (1970) . . * . . . . . . . 7 J .* . . . _ * .
United States v. Aviles, 274 F.2d 179
(24 Cir. 1960) . . . . . . . . . . . . . . . o -
United States v. Benedetto, 571 F.2d 1246
(24 Cir. 1978) . . . . . >. . . . . . * . . . . .
United States v. Burgos, 579 F.2d 747
(24 Cir. 1978) . . . . . . . . . . . . . . . . .
United States v. Cox, 633 F.2d 871
(9th cir. 1980) . >. >. - . . * .* * > . . . * . * .
United States v. DeNoia, 451 F.2d 979
ee-Gae., 207k) ce eo ee wor wr eee eee ee
United States v. Falley, 489 F.2d 33
(24 Cir. 1973) . . . . * . . . . 7 . * . * . . .
United States v. Fantuzzi, 463 F.2d 683
(24 cir. 1972) > > . > >. . . > . * * . . . > . *
United States v. Hysohion, 448 F.2d 343
(24 Cir. 1971) . . . . * . . . * . . . . a7 * . .
United States v. Kelly, 349 F.2a 720
(24 Cir. 1965), cert. denied,
384 U.S. 947 (1966) * * ° . . . . . * . . . * . °
o £4
. . .
wn FY
33,36
24,27
40,49
22
43
24,25,27
40,49
22
19,22,47
33,34,35
United
TABLE OF AUTHORITIES
Cases (Cont.)
States v. Mardian, 546 F.2d 973
(D.C.Cir. 1976) . . . . . . - . . . .
United
States v. Reina, 242 F.2d 302 (2d
cert. denied, 354 U.S. 913 (1957) . .
United
States v. Sampol, 636 F.2d 621
.6.Gae. 2068) «© ec e ee oeeaeeves
United
(24
United
(24a
United
(24
States v. Torres, 503 F.2d 1120
Cir. 1974) * . .* * . . . J * . .
States v. Tramunti, 513 F.2d 1087
Cir. 1975) . . . * .* * . . . J .
States v. Ziegler, 583 F.2d 77
cir. 1978) . . . . . . * . . >. .
Rule 403, F.R.Evid. * . * . . . . . . .
Rule 404(b), F.R.Evid. ES ae ee
Rule 602, F.R.Evid. >. . . . . . . . . .
Rules 701-706, F.R.Evid. o* 7) oe) ee ee re
Weinstein, Evidence, §701[2) ..-++-+s+-s.
Page
33,34,35
20,26
35
22
24,25,
26,47
40
39
39,40
41
42
43
TO THE HONORABLE, THE CHIEF JUSTICE OF THE UNITED
STATES AND THE ASSOCIATE JUSTICES OF THE UNITED STATES SUPREME
COURT.
Petitioner Kenneth Thomas respectfully prays that a
writ of certiorari issue to review a judgment of the United States
Court of Appeals for the Second Circuit which affirmed a judgment
of conviction of the United States District Court for the
Southern District of New York.
OPINION BELOW
The opinion of the Court of Appeals is not officially
reported; a copy is annexed as Appendix A.
JURISDICTION
The judgment of the Court of Appeals was entered on
March 4, 1983.
The Court's jurisdiction is invoked pursuant to
Title 28, United States Code, §1254(1).
STATEMENT OF TiS CASE
Appellant Kenneth Thomas was indicted on October a3,
1981 along with eighteen other defendants in a fifteen count
indictment charging various violations of the federal narcotics
i Thomas was named only in Count One, which charged all
laws.
nineteen defendants with conspiracy. He was named in only one
of the thirty-two overt acts listed by the government in that
count (Overt Act #31). The remaining fourteen counts charged
various of appellant's co-defendants with substantive narcotics
offenses.
The government proceeded to trial against appellant
Thomas and three of his co-defendants — Yvette Carson, Lemuel
Mont and Gay Burnetta Galloway.” The trial lasted over three
weeks and involved twenty-four witnesses, one pound of drug
evidence and several dozen documents and other exhibits. The
government conceded at trial that the evidence it was presenting
was an amalgamation of three separate Drug Enforcement Adminis-
tration ("DEA") investigations (T. 299, et seq.).° Most of that
V/ ae is set forth in appellants’ Joint Appendix
ata 0.
2/ The remaining fifteen defendants either entered guilty
pleas or could not be brought to trial because they had not
been apprehended.
3/ References preceded by "T" are to pages of the trial tran-
script; references preceded by "A" are to appellants’ Joint
Appendix in the United States Court of Appeals for the Second
Circuit.
evidence had nothing to do with appellant Thomas; in fact, only
two of the witnesses made any mention of him in their testimony.
All the rest of the evidence in this lengthy trial concerned the
three co-defendants on trial or the fifteen other defendants
not on trial.
A. The Evidence Pertaining to Other Crimes Committed by
Other Defendants
According to the government's witnesses, the first
investigation relevant to this case began in June, 1980. On
the ninth of that month, DEA Agent Coleman, acting in an under~-
cover capacity, purchased one and one-half ounces of heroin from
Anthony and Phillip Pegues and a third, unidentified individual
for $1,000 (T. 32-33). Counsel for appellant Thomas objected
to this evidence on the ground that none of the participants
in this transaction had anything to do with appellant Thomas
(T. 33). The court took the evidence "subject to a motion to
strike” in the event that it was never connected to appellant
Thomas (T. 33-34).
On June 20, 1980, Agent Coleman phoned Anthony Pegues
and told him that she was interested in purchasing better heroin,
and in larger quantities (T. 569). Pursuant to that conversa~
tion, Coleman met Anthony Pegues on June 23, 1980 and was intro-
duced to Guy Wilkins, whom Pegues identified as his source
(T. 568-569). Coleman then discussed with Wilkins the possi-
bility of buying larger amounts of heroin, which Wilkins said
-3-
he could supply. The conversations ended with Coleman tellang
Wilkins that she would get back to him. The following morning,
Coleman again phoned Anthony Pegues and told him that she warted
to buy a “spoon” (one-quarter ounce) of heroin. That conversa~
tion had been recorded and was played to the jury, again over
appellant Thomas’ objection that it was irrelevant and prejudi-
cial as to him (T. 577). Pursuant to that conversation, Coleman
met with Anthony Pegues and Guy Wilkins that afternoon and pur-
chased one-quarter ounce of heroin from them for $2,700 (T. 583).
According to Coleman, Wilkins used a child to deliver the drugs
(v. 582-583). The drugs from this transaction were introduced
into evidence, again over Thomas’ objection that they had
nothing to do with him (T. 46-47).
After further discussions, Coleman and DEA Agent Baker
met with Guy Wilkins, his brother Michael Wilkins (a/k/a Michael
Green) and Shawn Lovett on July 1, 1980 and purchased one-half
ounce of heroin from them for $10,000 (T. 49-58). Again, the
agents emphasized that children, one of them a “pre-teen”, were
used to deliver the drugs (T. 54-55). Moreover, Agent Baker
quoted Wilkins as saying that his operation was a "family busi-
ness", a reference to the fact that he was working with his
brother (T. 54). The drugs from this transaction were likewise
4/ The trial court ruled at this point that any objection made
any defense counsel would apply to all defendants unless
e court stated otherwise.
introduced into evidence, with the court giving appellant Thomas’
counsel a “continuing reserved motion to strike” if the evidence
was never connected to his client (T. 59).
On July 17, 1980, Agents Coleman and Baker had a con-
versation with Guy Wilkins concerning further, larger purchases
of heroin, during which Wilkins said that he had several Italian
sources, including one Vinnie Martino (T. 70). The following
day, Wilkins sold the agents one ounce of heroin for $13,500,
saying that this heroin, as well as the heroin he had sold to
them on July 1, 1980 had come from the owner of the Our Place
Bar (T. 76). The drugs from the July 18 transaction were intro-
duced into evidence (T. 78).
Baker thereafter severed his relations with Wilkins
when the latter, during a subsequent conversation, asked to see
his driver's license (T. 82).
The agents resumed relations with Wilkins on August 12,
1980, and on August 13, purchased four grams of heroin from him
for $2,200 (T. 87-92). This heroin was introduced into evidence,
again over appellant Thomas’ objection (T. 93).
Baker and Wilkins next had discussions concerning the
possibility that Baker would sell quinine to Wilkins and his
supplier. Pursuant to these discussions, Baker, on September 9,
1980, gave Wilkins a sample of quinine (T. 95). During this
exchange, Wilkins said that his source, the owner of the Our
Place Bar, used his sister as a courier between himself and the
Italians (T. 97).
On September 12, 1980, the agents first met with
Anthony Pegues, who gave them his phone number and told them
that he had a new source of supply (T. 99). The agents then met
Wilkins and drove around with him while he was distributing his
heroin. during which ride the agents discussed the possibility
of selling some allegedly stolen liquor to the owner of the
Our Place Bar (T. 99-100). When Agent Baker told Wilkins that
he was going to Atlanta, Georgia, on vacation, Wilkins gave him
the number of an individual named Sam, whom, Wilkins said,
Baker would be interested in meeting (T. 101).
In Atlanta, Baker got in touch with Sam, who, it turned
out, had only marijuana for sale. At Baker's request, however,
Sam got in touch with Wilkins’ sister in New York to try to
line up a heroin source for them. Sam also suggested that Baker
go to “Lam", the owner of the Our Place Bar. Lam was later
identified as defendant Lemuel Mont (T. 100-105).
After Baker returned to New York, he and Coleman again
met with Wilkins and on September 29, 1980, purchased two ounces
of heroin for $20,000 from Wilkins and a person named “Frog”
(later identified as Arthur Collins). During this transaction,
Wilkins identified his brother David as the source of the heroin
being sold (T. 108). That heroin was introduced into evidence
(T. 118).
On October 3, 1980, Baker met defendant Mont and sold
him fifteen cases of purportedly stolen liquor (T. 106-107, 124-131).
Ascording to Baker, two of the bills Mont used to purchase the
liquor were bills which Baker had used to purchase heroin from
Wilkins on September 29 (T. 131-132). Those bills were intro-
duced into evidence, again over the objection of appellant
Thomas that they were not shown to be relevant to him (T. 132).
The list of the serial numbers of the bills used in the September
29 transaction was also received into evidence over the same
objection (T. 145).
On October 23, 1980, the agents had a discussion with
Wilkins about the possibility of selling him ten pounds of
quinine, during which conversation Wilkins indicated that he
had a new source of supply. The agents also talked with de-
fendant Mont that day about the possibility of selling him
quinine in return for heroin (T. 147-152).
The following day, the agents again met with Wilkins
to discuss the possible purchase of one ounce of heroin. During
this conversation, Wilkins again mentioned the fact that he had
a new source of supply (T. 153). On October 27, 1980, the
agents again discussed with Mont the possibility of exchanging
heroin for quinine, and the following day Mont bought a one~
pound sample of quinine from the agents for $400 (T. 154-156).
During this transaction, Mont said that Wilkins sometimes used
his name for clout (T. 157).
On October 29, 1980, the agents went to the Our Place
Bar and asked Mont for a sample of his heroin. While they were
waiting, Wilkins came in end told them that he had gotten the
- 7 =
= ay
ee Sf.
quinine they had sold to Mont. Wilkins also said that he had
severed relations with both Mont and his brother, and reminded
them that he had a new source of supply (T. 164-166).
Pursuant to subsequent discussions with Wilkins, the
agents on October 31, 1980 purchased a sample of heroin Wilkins
had obtained from his new source for $900. This sample was
introduced into evidence, over appellant Thomas' continuing
objection (T. 170-181).
On November 5, 1980, the agents, in a recorded con-
versation with Wilkins which was played for the jury, made
arrangements to meet Wilkins' new source (T. 184-187). There-
after, the agents met Wilkins in the vicinity of St. Clare's
Hospital. While Baker talked outside with Wilkins’ associate,
Arthur Collins, about Thai sticks, Agent Coleman went inside
the hospital with Wilkins and was introduced to his new supplier,
Fred Chaffin (T. 192-194). Thereafter, the agents bought one
ounce of heroin from Wilkins and Collins for $14,000 and two
pounds of quinine. The heroin was introduced into evidence
(T. 194-197).
On December 18, 1980, the agents had a conversation
with Chaffin concerning their interest in purchasing five kilo-
grams of heroin. Chaffin said that such a transaction would
be no problem (7. 199). On February 23, 1981, the agents also
spoke to Wilkins concerning the possibility of such a trans-
action. Wilkins explained that Chaffin, after some problems,
had re-established himself with tue Italians and now had a
black partner (T. 202). On May 20, 1981, the agents told Wilkins
that they had raised the money to make the purchase (T. 205).
Pursuant to a conversation with Chaffin on May 22,
1981, the latter had Wilkins give the agents a sample of heroin
on May 27 (T. 206-212). This sample was introduced into evidence
over Thomas' objection (T. 217-219). Chaffin told the agents
during this transaction that he had two biack partners. When
Baker told Chaffin that he wanted to buy into the partnership,
Chaffin said that he would check with his partners (T. 215).
On May 28, 1981, Baker waited with Chaffin while
Agent Williams was taken by Wilkins and a female to purchase
four ounces of heroin for $45,000 (T. 220). On June 23, 1981,
the agents paid the remaining $5,000 on this purchase to Chaffin
(T. 229). On June 22 and 23, the agents also had discussions
with Chaffin concerning the possible purchase of three to four
kilograms of heroin, with Chaffin responding that he could get
such an amount in fifteen minutes and giving the agents his phone
number (T. 224-229). The agents also discussed with Chaffin
the possibility of setting up a quinine selling business (T. 229).
Pursuant to the latter discussion, the agents gave Chaffin a
one-ounce sample of quinine on June 26, 1981 (T. 230).
On July 17, 1981, Baker met with Wilkins, who intro-
duced him to an individual named “Can Do", later identified as
Kenneth Nunes. During this discussion, reference was made to
the fact that Nunes' sister was in the drug business. When
Wilkins explained to Baker that Chaffin had fallen out of favor
with the Italians, Baker offered him $25,000 for an introduction
to Chaffin's former partners (T. 230-233).
When Chaffin's former partners refused to meet Baker,
the latter offered Wilkins $5,000 to point one of them out to
him (T. 237-239). Wilkins then agreed to introduce Baker to
that individual in the context of a purchase of one-eighth
kilogram of heroin. The first time that they went to the Close
Encou'ters, a club in Mount Vernon, New York, for purposes of
this meeting, however, they were met at the door by an individual
(later identified as Peter Larkins), who told them that "Freddy"
was not coming in that night (T. 240-242). While they were
there, however, the agents had a conversation with Wilkins and
Larkins concerning the possibility of selling Freddy and his
partners some quinine (T. 243-244).
On July 24, 1981, the agents met Wilkins at the same
club. This time, Wilkins was accompanied by defendant Yvette
Carson. Wilkins introduced several of the agents to Freddy,
later identified as Fred Galloway, and then explained that
Galloway had sent his daughter, defendant Gay Galloway, to get
the heroin. After Ms.Galloway returned to the club, the agents gave
$42,000 to Wilkins, who, after going into Galloway's office,
returned and delivered one-eighth kilogram of heroin to then.
These drugs were introduced into evidence over Thomas’ continuing
Objection (T. 245-258).
= 10<
On July 28, 1981, Agent Baker met with defendant
Carson at a restaurant called the Jack-in-the-Box in the Bronx,
and discussed with her the possibility both of purchasing heroin
and of becoming her partner and meeting her Italian source.
Carson said that she would speak to her source (T. 261-268).
On July 30, 1981, Baker delivered a barrel of quinine
to Wilkins for him to sell. The following day, Wilkins told
Baker that Carson's Italian source had refused to meet him
(T.268-282).
On August 14, 1981, Baker had a conversation with
Carson concerning rumors in the street that Baker and his
associates were law enforcement officers. On August 20, Baker
had a similar conversation with Wilkins (T. 304-320).
On October 4, 1981, agents arrested Fred Galloway.
The government introduced inte evidence certain items seized
from Galloway at the time of his arrest, including business
cards in the name of Fred Gonzalez of the Close Encounters
Discotheque and a car registration (T. 320-344).
On October 7, 1981, the agents arrested defendant
Gay Galloway. At the time of her arrest, Ms. Galloway admitted
bringing a package to the Close Encounters on July 24, 1981
(7. 345-351).
‘The events outlined in the preceding paragraphs were
described at trial by Agents Baker (T. 31-560), Coleman (T. 560-
785), Hatcher (T. 786-794), Williams (T. 795-968, 1005-1050),
-ll-
Hayward (T. 1065-1105, 1190-1299), and Foley (T. 1112-1129),
as well as numerous other government witnesses. On several
occasions, the district court commented on the extent and cumula-
tive nature of the evidence about persons who were not even on
trial (see, e.g., T- 621, 691, 708).
B. The Evidence Concerning Appellant's Brother, Howard Thomas
While the events described above were taking place,
the DEA was also engaged in a separate, unrelated investigation
which commenced on July 21, 1981 when DEA Agents Kenneth Johnson
and Dannie West, acting in an undercover capacity, were intro~
duced by a confidential informant to one Howard Thomas (herein-
after “Howard” outside the Star Lounge bar (T. 1160). The agents
discussed with Howard the possibility of purchasing one ounce of
heroin, Howard replying that he could provide such an amount.
Howard also stated that his partner (later identified as Thomas
Wilson) had a store on the next block. The agents left but
returned at 7:00 p.m. that evening, at which time Howard took
them to meet Wilson. Together, they all drove to the Bronx,
where Wilson obtained an ounce of heroin and sold it to the
agents for $6,500 (T. 1160-1167, 1201-1211). The heroin was
introduced into evidence (T. 1211).
On August 6, 1981, the agents met again with Howard
and discussed the purchase of another ounce of heroin. That
purchase did not take place, however, because Wilson coulda not
arrange it (T. 1255-1260).
On August 10, 1981, the agents again approached Howard
about purchasing heroin. After some delay waiting for Wilson,
Howard said that he could “turn [the agents] on" to someone else
who could sell them the drugs. When Johnson agreed, Howard
spoke to someone in a Continental parked down the block and
then came back to say that the transaction could be arranged
but that the man would have to go somewhere to get the drugs.
After Johnson eventually agreed to this, the man in the car
drove off. While they were waiting, Howard bucame concerned
that there were police in the area and told the agents to drive
around the corner. After waiting there for fifteen minutes,
they left. Pursuant to a phone conversation with Howard later
that day, however, they returned, at which time Johnson was
introduced to the man who was to sell him the drugs. This
individual turned out to be Kenneth Nunes. Upon recognizing
Johnson, Nunes said that he would first have to call his sister
(Yvette Carson) to approve the deal. Howard explained to the
agents that Carson was Nunes’ “main lady” (T. 1406). After
making a call, Nunes said that his sister 4id not want him to
deal with Johnson because the last time Johnson was with her, he
had asked too many questions. Consequently, no sale took place
(T. 1255-1279).
- l2a -
P Ph - } *
“ oa EP et oR Oa Open 2 PA
Re ee ud epee ty Ae Re eee mean oe See
C. The Evidence Concerning Appellant Thomas
The agents testified that appellant lived in the
vicinity of the Star Lounge (T. 1329). When they first spoke
to Howard Thomas there on July 21, 1981, appellant Kenneth
Thomas was standing on some steps five to ten feet away.
According to the agents, he was just standing there, not doing
anything. He did not participate in any way in the conversa-
tion between Howard and the agents (T. 1163-1164).
When the agents returned later that day, they saw
appellant standing in front of the Star Lounge. While they
were talking to Howard Thomas in their car, they saw appellant
engage in what they characterized as “narcotics transactions”
(T. 1168). According to the agents, this consisted of in-
dividuals handing money to appellant and appellant handing
something to them “in a manner as to hide what was in his hand”
(T. 1168). The agents admitted that they could not see what
appellant handed to the individuals (T. 1307). Nevertheless,
counsel's motion to strike the agents’ characterization of
this conduct as a narcotics transaction was denied (T. 1659).
Agent Johnson testified that when Howard Thomas gave them his
phone number, he told them that they could also get in touch
with him through his brother or the “individual” (apparently
the bartender) in the Star Lounge (T. 1314).
According to Agent West, while they were talking to
Howard, appellant came over to the car on one occastion and
attempted to give Howard some money, but Howard told him to
hold on to it for awhile. West also testified that an unidenti-
fied female came over to the car during their discussion and
asked Howard if he had “anything”. Howard told her to "go down
there”, pointing down the street. According to West, several
people, including appellant, were standing in the direction
Howard pointed (T- 1413, 1472). The agent admitted on cross~
examination that she did not know which particular person Howard
was pointing at (T. 1473).- Appellant did not participate in
any way in the agents’ discussion with Howard Thomas, nor in
the transaction between Howard Thomas, Thomas Wilson and the
agents which took place later that day (T. 1201-1211).
When the agents came to the Star Lounge looking for
Howard Thomas on August 6, 1981, they did not see him, but did
see appellant standing out front. Consequently, Johnson asked
appellant if he could put them in touch with Howard, saying it
was important. Appellant. responded that he could, adding that
he knew what they wanted because his brother had told him.
Appellant then rode around with the agents, attempting to locate
his brother for them. They later found him standing in front
of the Star Lounge. When Howard came over to the car, however,
appellant left. He did not participate in any way in the nar~
cotics discussion that followed (T. 1257-1258).
- 14 -
On August 10, 1981, while the agents were talking to
Howard, they again saw appellant in the area and on two occasions
witnessed him taking money from someone and giving that person
an unidentified object in return (T. 1268, 1399). The agents
also testified that while they were there, they observed an
unidentified woman come up and speak te Howard and appellant,
following which the three of them walked by 4 car in which a DEA
surveillance agent was seated, paused briefly in front of the
car, and then continued down the street. Thereafter, the man
in the Continental, to whom Howard had spoken earlier, walked
over and had a conversation with the surveillance agent. No
evidence was introduced as to the nature of that conversation
OT. 1268-1269).
The agents testified that they never received any drugs
from appellant and never had any discussions with him concerning
such a possibility (T. 1477). They also testified that appellant
was “not a primary subject” but rather a “very tangential sub-
ject of the investigation", and that most of the actions they
attributed to him in their testimony were not even mentioned in
their reports (T. 1303-1305).
The indictment in this case was filed on October 13,
1981. Howard Thomas and most of the other co-conspirators were
arrested prior to that date (T. 1429). Appellant, however, was
not arrested until October 19, 1981. Nevertheless, the govern-
ment was permitted to introduce, over objection from appellant,
ru > , « “ y eS . \
ay = m ‘ t My B . Pa: ha fab
Ree Seg ecaydy Be een eC pe rae , : Hy. toil Naar A ks
ate Py t Fa igh SD ye | Be * he! > ee Nb OP spat 5 RA oe ied Lia eo OR as wae ts » 4 Te ot
proof that when appellant was arrested, he was in possession of
@ small vial and some cellophane envelopes, some of which con-
tained heroin residue. He was also in possession of a small vial
containing residue of cocaine (T. 1415-1438).
Appellant's pre-trial and trial motions for a severance
were denied (T. 1758, et seg.), as were his trial and post-trial
motions for a dismissal and/or a directed verdict based on the
failure to sever and the insufficiency of the evidence (T. 1748,
et seg., 2072-2073; transcript of March 11, 1982). As to the
latter motion, the district court acknowledged that the issue
of sufficiency was a close question, and that appellant's motion
was “non-frivolous" and had to be given serious consideration
(transcript of March 11, 1982).
Following his conviction on the conspiracy count,
appellant was sentenced on March 26, 1962 to fourteen years in-
carceration.
The Second Circuit affirmed appellant's conviction holding
inter alia that the evidence was sufficient to establish his
guilt on the conspiracy charge (Appendix A, slip op. at 2203-
2206), that he was not entitled to a severance (Id., at 2214-
2217), the the trial court's instructions on aiding and abettins
had been proper (Id., at 2217-19), that the contraband seized
from appellant at the time of his arrest was admissible (Id.,
at 2219-20), and that the testifying officers’ expressions of
opinion concerning appellant's alleged street transactions
was admissible (Id., at 2220-2223).
REASONS FOR GRANTING THE WRIT
POINT I
THE EVIDENCE WAS INSUFFICIENT
TO ESTABLISH THAT APPELLANT
WAS GUILTY OF THE CONSPIRACY
CHARGE.
The indictment in this case charged appellant Kenneth
Thomas with knowingly participating in a nineteen-member con-
spiracy “to distribute large quantities of heroin” over a
seventeen-month period. The government's witnesses admitted,
however, that they had never bought any heroin from appellant.
Nor had they ever discussed the possibility of such a trans-
action with him. They liketsise admitted that appellant had not
participated in, or even been within hearing range of, any of
the conversations they had with his brother, Howard Thomas,
concerning drug transactions. Nor had appellant even been
present when the agents actually purchased any drugs. Rather,
the most that the agents could say about appellant was that on
a few occasions over a three-week period they observed him
engage in activities which, at most, suggested that he might
be involved in some undetermined illegal activity, but which
fell far short of establishing beyond a reasonable doubt that
he was a knowing member of the large-scale conspiracy to distri-
bute “large amounts of heroin” which was charged in Count One
of the indictment.
A. The Evidence Failed to Establish that Appellant was a4
Heroin Dealer.
The government's theory was that appellant was a street
seller of heroin which had come from the conspiracy charged. The
government's evidence, however, was insufficient to establish
even that appellant was 4 heroin dealer. The principal proof
in support of this allegation was the agents’ testimony that on
several occasions they had observed appellant engage in what
appeared to be drug transactions — covertly handing something
to someone in exchange for money. The agents conceded, however,
that they had no way of knowing what had been exchanged, and
that it could just as easily been cocaine or some other illegal
item as heroin.
Although appellant was found to be in possession of
a small vial and some cellophane envelopes, some of which con-
tained residue of heroin, when he was arrested, this additional
evidence still did not establish that appellant was 4 heroin
dealer. Possession of such 4 small amount of heroin was merely
evidence of appellant's own addiction to that drug (transcript
of March 26, 1982, at 5); it did not prove that he had been
selling any of that drug, however, particularly since appellant
also had on his person another emall vial containing 4 residue
of cocaine. Consequently, even assuming that the agents were
correct in assuming that appellant was engaged in selling some~
thing illegal when they observed him, there was no way that the
jury could properly have concluded beyond a reasonable doubt
that he was selling heroin, as opposed to cocaine or some other
illegal substance. Since the conspiracy charge alleged only
heroin distribution, it was essential to the government's
theory o the case to prove that appellant was selling heroin,
as opposed to some other drug. [ts failure to do so is alone
sufficient to void appellant's conviction.
B. The Evidence Failed to Establish that Appellant was a
Member of the Conspiracy Charged.
Before appellant could properly be convicted of con-
spiracy, the government was required to prove beyond a reasonable
doubt that he was a member of the conspiracy charged in the in-
dictment. See, e.g., United States v. Hysohion, 448 F.2d 343
(24 Cir. 1971). Consequently, even if this Court concludes
that the proof in this case was sufficient to establish that
appellant was a heroin dealer, that would not be enough to
sustain his conviction unless the government also established
that he was engaging in that activity as a member of the con-
spiracy charged. No such showing was made in this case.
The only alleged conspirator with whom appellant was
shown to have any contact whatsoever was his brother Howard.
Consequently, in order to make it appear that appellant was a
member of the conspiracy charged, the government speculated
that appellant must have been selling heroin which he was receiving
-~ 19 «
from his brother. There was absolutely no evidence, however,
that appellant had ever received any drugs from his brother or
from any member of the conspiracy. Rather, even assuming that
appellant was a drug dealer, the record “was altogether equivocal
as to the source of his supply". United States v. Reina, 242
F.2d 302, 306 (2d Cir.), cert. denied, 354 U.S. 913 (1957).
The government relied for its proof that appellant
must have been getting heroin from his brother solely on the
fact that on one single occasion, while the agents were talking
to the brother, appellant came over to give him some money.
The mere exchange of money between two persons, particularly
brothers, falls far short of proving beyond a reasonable doubt
that the money is a payment for drugs.
Even if this proffer of money is assumed to be 4 pay~
ment for drugs Howard had previously supplied to his brother,
there was no proof that the drug had been heroin, or if it was,
that it had come from the conspiracy, as opposed to some other
source. Moreover, even if it is assumed that appellant was
paying his brother for conspiracy-supplied heroin, there is no
proof in this record that he had sold that heroin (a necessary
element of the conspiracy charge), as opposed to buying it to
support. his own habit. Indeed, it is just as possible on this
record that appellant was selling cocaine and then using the
money he was making to purchase heroin from his brother or some
other source to support his own habit.
The agents also testified that on one occasion while
they were talking to Howard Thomas, a woman came over and asked
him if he had “anything”. According to the agents, Howard told
her to "go down there", pointing down the street. Agent West
testified that several people, including appellant, were standing
in the direction Howard pointed, and that she did not know which
particular person Howard was pointing at. The street was
described as a place where numerous persons sold drugs. There
was no evidence in this exchange that Howard was referring the
woman to his brother or even that the woman was looking for
heroin as opposed to some other drug. There was no proof whatso-~
ever that Howard was referring the woman to his brother so that
she could purchase heroin which Howard had previously supplied
to him and which had come from the conspiracy charged.
The fact that appellant was frequently seen in the
area when the agents came to talk to his brother is likewise
not proof that appellant was 4 member of the conspiracy charged.
It was perfectly natural for appellant to be in that area since,
as the agents conceded, he lived there. Moreover, presence
and even association with conspirators with knowledge of their
criminal activities, is not sufficient to make one a member of
a conspiracy. See, @-g-» United States v. Torres, 503 F.2d 1120
(24 Cir. 1974); United States v. Fantuzzi, 463 F.2d 683 (2d Cir.
1972); United States v. Burgos, 579 F.2d 747, 749 (24 Cir. 1978).
The district court seemed to feel that the fact that
appellant helped the agents to find his brother on August 6,
1981, saying that he knew what they wante4, was sufficient to :
make him a member of the conspiracy, because this meant that he
had made the conspiracy "something he wished to succeed" (tran-
script of March 11, 1981, at 8). Appellant submits, however,
that this case is governed by the line of decisions which hold
that the mere fact that 4 defendant knowingly facilitates 4
drug transaction does not make him a member of a drug ecnspiracy.
See, @-9-» United States v. Hysohion, 448 F.2d 343, 347 (2d Cir.
1971). In Hysohion, that Court found that the fact that one of
the defendants, himself a drug dealer, had introduced two other
drug dealers to each other for the purpose of enabling them to
engage in a drug transaction was insufficient to establish that
he had become a member of any conspiracy:
The fact that (defendant) Rimbaud told
Everett, a willing buyer, how to make
contact with a willing seller does not
necessarily imply that there was an
agreement tween that seller, who was
Roupinian, and Rimbaud.
oe - 22 - P
That conclusion is even more compelling here since in Hysohion
the conspiracy charge centered around the transaction which
Rimbaud had facilitated, whereas here the August 6 discussions
between the agents and Howard Thomas after he had been located
by his brother constituted only a miniscule event in the activi-
ties of the conspiracy charged.
Finally, the fact that appellant, his brother and an
unidentified woman walked over and stood for thirty seconds in
front of a surveillance agent's car on August 10, 1981 before
walking down the street was not proof that appellant was a
member of the conspiracy charged. That agent was not even called
by the government; consequently, there was not even any evidence
that this conduct was intended to intimidate that agent, as
the government maintained. Even if it was, however, there was
no proof that appellant was engaging in that conduct in order
to further his brother's interests; assuming that the government
was correct in maintaining that appellant was selling something
illegal on the street, it was just as possible that he was en-
gaging in this conduct to protect his own, independent ventures.
In order to convict, the government was required to
present clear and convincing proof that appellant was a member
of the conspiracy charged. The government presented no direct
proof of such membership. Nor was the proof of appellant's
peripheral activities when the agents were dealing with his
brother sufficient to support an inference of such membership.
Consequently, appellant's conviction for conspiracy must be set
aside.
= 23 <
C. The Government Failed to Prove Beyond a Reasonable Doubt
that Appellant was Sufficiently Knowledgeable of the
Overall Scope of the Conspiracy Charged to be Considered
a Member of it.
Even if this Court concludes that appellant's activi-
ties were sufficient to make him a participant in the agents’
unsuccessful efforts to purchase heroin from Howard Thomas
in early August, 1981,° such a finding would still not be
sufficient to establish beyond a reasonable doubt that appellant
was guilty of the conspiracy charged. Although a defendant
need not be shown to know all of the participants in a conspiracy,
he cannot properly be convicted of that crime unless the govern-
ment at least establishes that he had knowledge of the overall
scope of the conspiracy in which he was supposed to be partici-
pating. United States v. Tramunti, 513 F.2d 1087, 1112 (2d
Cir. 1975); United States v. DeNoia, 451 F.2d 979, 981 (24 Cir.
1971); United States v. Aviles, 274 F.2d 179, 190 (2a Cir. 1960).
The record in this case is totally devoid of such evidence.
The only member of the conspiracy with whom appellant was shown
to have any contact whatsoever was his brother. Appellant never
made any statements suggesting that he had knowledge of a broader
conspiracy (compare United States v. DeNoia, supra, 451 F.2d
at 981 [as to defendants Jacovino and Scorzello)). Nor was he
5/ Appellant did not participate in any way in the agents'
purchase of drugs from Howard Thomas and Thomas Wilson on
July 21, 1981. j)
- 24
present when statements indicating the scope of the conspiracy
were made by other conspirators (compare United States v.
Tramunti, supra, 513 F.2d at 1112 [as to defendant Salley)).
Appellant was not even present when any transactions or dis-
cussions about transactions took place. Consequently, it cannot
even be argued that he should have known from the size of those
transactions that some broader conspiracy existed (compare United
States v. DeNoia, supra, 451 F.2d at 981 [as to defendants
Jacovino and Scorzello)).
Indeed, the proof that appellant was sufficiently
knowledgeable of the overall scope of the conspiracy charged
to be considered a member of it was substantially weaker in this
case than it was in numerous other cases which courts have re-
versed for insufficiency of proof as to this element. In United
States v. Tramunti, supra, for example, the evidence showed that
one of the defendants, Alonzo, actually bought two ounces of
"conspiracy heroin” from one of the conspirators. Moreover,
he made statements establishing that he had been a dealer in
the past and he intended to start dealing again. Furthermore,
he was present in an apartment where one of the conspirators
delivered heroin to another conspirator. Nevertheless, the
Court found the evidence insufficient to establish that Alonzo
had knowledge of the “broader conspiracy”. In so holding, the
Court noted that the size of the conspiracy alleged by the govern-
ment is a major factor to be considered in determining whether
>
a Hu! anes
the isolated actions of a peripheral defendant will support
the inference that he had knowledge of the overall scope of the
conspiracy charged. In other words, less evidence will be re-
quired to support such an inference if the conspiracy charged
is small. United States v. Tramunti, supra, 513 F.2d at 1112,
fn. 27. Where, as here and in Tramunti, however, & sizable
conspiracy is alleged, clear proof of the defendant's knowledge
as to the actual scope of that conspiracy is required. The
Court's holding as to Alonzo in Tramunti is equally applicable
here:
Viewed in the entire context of the
conspiracy, his act qualitatively is
miniscule ... . When the Government
throws out its big conspiracy next to
catch the big fish in the criminal sea,
it has to be aware that an occasional
minnow may wriggle free.
United States v. Tramunti, supra,
5 a 112.
In United States v. Reina, supra, 242 F.2d at 306,
defendant Valentiwas shown to have actually sold drugs to someone
in a transaction arranged by a co-conspirator. The government
argued that this was sufficient to establish that he was a know~
ing participant in the conspiracy charged. That Court rejected
that argument, saying:
We would accept this reasoning if we
thought that Valenti's sale of the
gue to Pocoroba was evidence that
was cooperating in the series of
importations that made up the conspiracy
charged. His sale was indeed not incon-
sistent with that knowledge; but it was
equally consistent, so far as we can
see, with his being an independent
peddler of narcotics, whom [conspirator]
Shillitani selected as the most immediately
available source of supply for Pocoroba's
needs.
Likewise, in United States v. Aviles, supra, 274 F.2d at 179,
the Court found that defendant Rodriquez’ guilty of the con-
spiracy charged had not been proven despite the fact that he
had been shown to have actually purchased drugs from a conspira-
tor:
We may assume that Rodriquez knew that
the narcotics were illegally imported,
but there is insufficient basis in the
evidence for assuming that he knew that
Cantellops [the seller] was an agent
for an existing conspiracy. So far as
appears, Rodriquez had no knowledge
whatever as to how Cantellops came into
possession of the drugs.
And in United States v. DeNoia, supra, 451 F.2d at 981, the
evidence was held to be insufficient as to defendant DeNoia,
Gespite the fact that he had been shown on one occasion to have
Gelivered heroin for the conspiracy:
As to DeNoia, however, we find no in-
dependent evidence linking him to the
conspiracy. DeNoia's delivery of the
heroin is not the kind of single trans-
action which itself supports an inference
of knowledge of a broader conspiracy
{citations omitted].
In the present case, there is even less evidence to Support such
an inference, since appellant was never shown to have bought
or sold any conspiracy-originated drugs or even to have had any
contact with any conspirators other than his brother.
ie
PM
The district court made no reference to this knowledge
requirement in ruling on appellant's sufficiency motion (tran-
script of March 11, 1982). Rather, it seemed to feel that all
_that was necessary was to show that appellant did something
(i.e., helping the agents to find his brother) which indicated
that he was knowingly facilitating a drug transaction. All of
the defendants in the above-cited cases were also knowingly
facilitating drug transactions, however. Indeed, in each in-
stance, the defendant was a principal party to the transaction.
The evidence in each case was insufficient, however, because
despite their knowing participation in drug transactions, there
was no evidence that the defendants had knowledge of the overall
scope of the conspiracy charged. Since there was likewise no
evidence of that essential element in appellant's case, his
conspiracy conviction should be vacated.
D. Conclusion
At worst, the government's proof suggested that appel-
lant might be a street vendor of some illegal item. Once a
jury suspects that, however, they are almost certain to convict,
regardless of whether the proof was sufficient to establish
that the defendant was guilty of the particular crime with which
he is charged. In such circumstances, the judiciary bears a
special responsibility to insure that convictions which are not
supported by sufficient evidence are not permitted to stand.
Even if appellant's activities, as described by the
agents, suggest that he was selling something illegal to people
on the street, that does not make him guilty of the large-scale
heroin conspiracy charged in this indictment. There is no
proof in this record even that appellant was selling heroin,
let alone that he was selling heroin supplied by the conspiracy
charged in the indictment, and selling it with knowledge of the
overall scope of that conspiracy. Absent such proof, appellant's
conspiracy conviction must be set aside.
POINT II
THE DISTRICT COURT ERRED
IN DENYING APPELLANT'S
SEVERANCE MOTIONS.
Even before the trial began in this case, it was
clear that appellant would be severely prejudiced by being
tried with the other defendants. The indictment charged nine-
teen defendants with fifteen narcotics offenses, many of which
were alleged to be substantial drug transactions involving
tens or even hundreds of grams of heroin. Appellant, however,
was named only in Count I, which charged all nineteen defendants
with membership in a broadly sketched conspiracy. Moreover,
even as to that charge, the disproportionality of allegations
was striking. Many of the co-defendants were named repeatedly
throughout the thirty-two overt acts, which charged them with
having participated in numerous large heroin transactions over
a sixteen-month period. Appellant was named in only one overt
act (#31), in which he was alleged to have sold drugs on 4
single day at the very end of the conspiratorial period.
The conspiracy alleged was so far-flung, and the
number of defendants and crimes charged so unwieldy that the
district court repeatedly urged the government during
the pre-trial proceedings to seriously consider severing por-
tions of its case (see, e.g., transcrip’: of October 22, 1982
at 8-9, 13-14). Although the government: eventually proceeded
- 30 -
to trial against only four defendants, this was not the result
of any severance to avoid prejudicing the defendants; rather,
the government simply proceeded to trial against all those
defendants who had been arrested and who had not entered into
plea agreements. As a result, the defendants on trial ranged
from one end of the alleged conspiracy to the other. Moreover,
the government tried its case as though all nineteen of the
defendants named in the indictment were on trial. Consequently,
a@ vast majority of the government's proof concerned defendants
who were not even in the courtroom, prompting the district
court repeatedly to comment on the cululative nature of the
evidence as to absent defendants (T. 621, 691, 708).
The trial itself took over three weeks to try, and
involved twenty-four witnesses, 4 total of one pound of drug
evidence and several dozen documents and other exhibits. During
that entire period, only two of the government's witnesses made
passing reference to appellant, describing him as a peripheral
figure during their dealings with his brother, Howard Thomas,
on three occasions over a three-week period at the tail end
of the conspiracy.
None of the pound of drug evidence presented to the
jury during trial was shown to have come from appellant.° Moreover,
6/ A vial and some cellophane envelopes containing heroin
residue which were seized from appellant at the time of his
arrest were introduced into evidence.
the evidence against appellant was ambiguous at best (see
Point I, supra). That fact lost perspective, however, in the
deluge of evidence of large-scale transactions and overwhelming
proof as to other defendants. Particularly prejudicial to
appellant was the stress which the government put on convincing
the jury that drugs were 4 "family business". Indeed, one of
the agents quoted Guy Wilkins, the defendant against whom the
government had the most proof of guilt and who, the jury learned,
had pleaded guilty to the charges in this case, as saying exactly
that (T. 54). This claim was substantiated by the fact that
many of the co-defendants against whom the evidence was most
substantial were related to one another. Thus, Anthony and
Phillip Pegues were brothers, Guy Wilkins and Michael Green,
a/k/a Michael Wilkins were brothers, and Yvette Carson and
Kenneth Nunes were brother and sister. There was also evidence
that Guy Wilkins’ sister was involved in drugs. Consequently,
by the time the jury heard the evidence concerning the Thomas
brothers toward the end of the trial, they were already condi-
tioned to assume that fraternal ties were compelling proof of
joint involvement in drug activity, particularly when the evi-
dence against one family member was strong, as it was with
appellant's brother.’
Vv The agents testified that Howard Thomas had participated
in three discussions concerning drug purchases and one actual
sale. Moreover, his statements to the agents clearly estab-
lished that he was a dealer in substantial amounts of heroin.
Given the substantial disparity in the charges and
the evidence, appellant's severance motions should have been
granted. A defendant in a joint trial has a recognized right
to a “severance of defendants or whatever other relief justice
requires” if it appears that he is “prejudiced by a joinder of
offenses or of defendants in an indictment. . . OF by such
joinder for trial together”. Rule 14, Federal Rules of Criminal
Procedure; United States v. Kelly, 349 F.2d 720, 759 (2d Cir.
1965), cert. denied, 384 U.S. 947 (1966). In applying this
rule, the courts have always kept in mind the problems inherent
in trials of conspiracy cases involving numerous defendants.
As the Supreme Court noted, in such cases the “liberal rules
of evidence and the wide latitude accorded the prosecution may,
and sometimes do, operate unfairly against an individual de-
fendant ... ." Glasser v. United States, 315 U.S. 60, 76
(1942). The “dangers of inference of guilt” are such that 4
court should use “every safeguard to individualize each defendant
in his relation to the mass". Kotteakos v. United States, 325
U.S. 750, 774 (1946); see also, Blumenthal v. United States,
332 U.S. 539, 559-560 (1948); United States v. Mardian, 546 F.2d
973, 977 (D.C.Cir. 1976).
The Courts have long recognized that the danger of
transference of guilt is particuiarly significant in conspiracy
cases where, as here, there is a great disparity in the weight
of the evidence, strongly establishing the guilt of some defendants
but not that of the party seeking severance. In such cases,
the Courts held, the danger persists that the guilt of the
more clearly incriminated defendants will “rub off” on others.
United States v. Kelly, supra, 349 F.2d at 756-759. After
acknowledging that severance is among the most important safe-
guards available to minimize such prejudice, the Second Circuit, in
what has become known as the Kelly doctrine (see, @.g., United
States v. Mardian, supra, 546 F.2d at 977), ruled that severance
is required when the evidence against one or more defendants
is far more damaging than the evidence against the moving
party.
There can be no serious doubt that such was the
situation with regard to appellant in the present case. He
was charged in only one of the fifteen counts in the indictment,
and named in only one of the overt acts in that conspiracy charge.
As such, the disproportionality in the charges was considerably
greater than that which was found to mandate severance in other
cases (see, e.g., United States v. Mardian, supra, 546 F.2d at
977-978 [defendant named in five out of forty-five overt acts));
ited States v. Kelly, supra.
The evidence at trial likewise mandated the application
of the Kelly doctrine to this case. Even in terms of time, while
the government's evidence described continuous involvement of
many defendants over the sixteen-month period during which the
conspiracy was alleged to have operated, appellant's activities
were limited to three isolated occasions during a three-week
period at the tail end of that span. (Compare United States
v. Mardian, supra, 546 F.2d at 978 [one month of activity during
a twenty-month conspiracy)).
The quantity of evidence was equally disproportionate.
Weeks of testimony and a score of drug transactions went by
before appellant was even mentioned. (Compare United States
v. Kelly, supra; United States v. Mardian, supra.)
The quality and type of the evidence against appellant's
co-defendants was also highly disproportionate. Tape recorded
evidence and testimony directly involved them in numerous drug
discussions and/or transactions. No such evidence existed as
to appellant. (Compare, United States v. Sampol, 636 F.2d 621,
646 (D.C.Cir. 1980); United States v. Mardian, supra.)
Moreover, the nature of that evidence — showing
sizable sales of heroin, and the frequent employment of children as
couriers — undoubtedly had a negative influence on the jury.
As such, the Court's words in Kelly are equally applicable here.
In that case, the Court noted that the large amount of evidence
establishing the “shameless fraudulent practices [of appellant's
co-defendants) . . . must have stamped them in the eyes of the
jurors as unscrupulous swindlers of the first rank. That some
of this rubbed off on [appellant] we cannot doubt". (Id., 349
F.2d at 759; see also, United States v. Sampol, Supra, 636 F.2d
at 646-647).
e 38 -
i eos.
wba ‘ j ' Moe, y
‘eh a Se eo | See ee
The need for severance was particularly pressing
because the evidence against appellant was so sparce. As the
Supreme Court said in Glasser v. United States, supra, 315 U.S.
at 67:
In all cases the constitutional safe-
guards are to be jealously preserved
for the benefit of the accused, but
especially is this true where the
scales of justice may be delicately
poised between guilt and innocence.
Then error, which under some circum-
stances would not be ground for re-
versal, cannot be brushed aside as
immaterial...
Here, the weeks of testimony, the bags of heroin
evidence, and the overwhelming proof of guilt as to many of
appellant's co-defendants could not help but have had an
adverse effect on the jury's evaluation of appellant's guilt
or innocence. Particularly if the jury suspected that the
agents’ testimony about appellant's covert exchanges meant
that he was involved in some illegal activity, they were likely
to overlook the lack of proof as to appellant's alleged member~-
ship in the conspiracy or the government's claim that he was
selling conspiracy-supplied heroin, and convict him on the
basis of the overwhelming evidence of his brother's guilt and
the equally overwhelming evidence of the guilt of other family
teams. Appellant was entitled to have the small amount of
evidence concerning him evaluated by a jury which was not
tainted by such prejudicial spill-over. The fact that he was
denied that right requires that he be granted a new trial.
POINT I1x
THE DISTRICT COURT ERRED iN
DENYING APPELLANT'S MOTION TO
STRIKE THE AGENTS' TESTIMONY
THAT THEY SAW APPELLANT ENGAGE
IN WHAT "APPEARED TO BE DRUG
TRANSACTIONS".
Although the government insisted that appellant was
@ drug dealer, none of its witnesses had ever bought or even
discussed buying drugs from him. The government's agents
testified, however, that while they were talking to appellant's
brother, they observed appellant on several occasions engage
in what “appeared to be a drug transaction”.
The district court was apparently uncertain as to the
admissibility of this conclusory testimony. On several occa-
sions when the agents expressed such an opinion, the district
court sustained defense counsel's objection and ordered the
characterization stricken (T. 1167-1168, 1268). On several
other occasions, however, the agents nevertheless persisted in
claiming that appellant was engaging in “drug transactions"
(T. 1168, 1399. 1412), despite the fact that they were not
parties to the alleged transactions and had no actual knowledge
as to what was being exchanged. All they actually saw was
appellant exchanging an unidentified object in return for money
in such a way as to hide what was in his hand (see, e-g-,
T. 1168). The agents insisted, however, that they knew these
were drug transactions because of their “experience” (T. 1168).
Despite its periodic rulings to the contrary, the district
court denied appellant's motion to strike these characteriza-
tions as well as the underlying testimony about the covert ex-
changes (T. 1659, see also 1152-1153, 1173, 1179). The prose-
cutor was then permitted to rely on these characterizations
in summation:
{The Assistant United States Attorney):
And you remember that they [the agents)
saw Kenneth Thomas, who was pointed out
to them and he was just standing on the
corner doing what appeared to be heroin
transactions.
What did that mean?
Mr. Mogulescu: Objection, your Honor.
The Court: Overruled.
(emphasis added) (T. 2103)
The admission into evidence of both the agents' testimony
about covert exchanges and their expressions of opinion that
these exchanges were drug transactions was prejudicial error.
A. The Testimony Concerning the Covert Exchanges
The issue before the jury in this case was not
whether appellant was engaged in some criminal activity or
even whether he was a drug dealer, but whether he was selling
heroin which had been supplied to him by the conspiracy charged.
The agents had no factual basis for claiming that that was
what he was doing during the exchanges they described at trial.
Rather, all they could truthfully convey to the jury was that
- 38 -
appellant was exchanging something for money in such a way that
the agents could not see what was in his hand. Since there was
no evidence that appellant's brother or any other conspirator
had ever given appellant any heroin and since the agents testi-
fied that they could not see what was being exchanged, the jury
had no factual basis whatsoever for assuming that these exchanges
constituted transactions in conspiracy-supplied heroin. Rather,
the most that this evidence could do was to create the impression
with the jury that appellant must have been doing something
illegal since the agents insisted that he was doing it ina
covert fashion. Even if the jurors adopted the agents’ specu-
lation that such exchanges were drug transactions, there was no
evidence whatsoever that they were sales of heroin, or more parti-
cularly, conspiracy-supplied heroin, as opposed to some other
drug.
In this posture, this evidence amounted to proof of
unspecified criminal activity, never connected to the heroin
conspiracy charged in the indictment, but devastatingly preju-
dicial to appellant. As such, it should have been excluded
under Rule 404(b) and 403 of the Federal Rules of Evidence.
Under those rules and the decisions of the courts,
evidence of criminal activity which is never shown to be re-
lated to the crimes charged is admissible only if the government
first establishes 1) that the evidence is relevant to a specific,
Gisputed issue at trial, and 2) that its probative value outweighs
@ 39 -
ee ae ee. oe a
- x ™ - .
Pre Pere ener Taree" et DEM me ORO 9-000 pear Pun Ae pn enee are YT IY A : ewe — ~~ me
its prejudicial effect on the jury. United States v. Ziegler,
583 F.2d 77, 82 (24 Cir. 1978); United States v. Benedetto, 571
F.2d 1246 (24 Cir. 1978); United States v. Falley, 489 F.2d 33,
37-38 (24 Cir. 1973). The disputed issue in this case, and
the issue on which the government had no proof (see Point I,
supra), was whether appellant was receiving heroin from the
conspiracy charged in the indictment. The fact that he was
selling something illegal, or even that he was a drug dealer,
was not proof of that essential element of the crime charged.
What such evidence tended to do, however, was to overshadow
that issue in the jury's minds. Once they became convinced
that appellant was engaged in some illegal activity, or that
he was a drug dealer, they were likely to convict regardless
of whether he was ever shown to be a member of the conspiracy
charged. As such, the teal value of this evidence was
to accomplish the goal forbidden by Rule 404(b) — to convince
the jury that appellant was a criminal and thet he should
therefore be convicted regardless of whether the evidence
satisfied them that he was guilty of the specific crime
charged. United States v. Benedetto, supra; United States v.
Ziegle:, supra. Since that was the only purpose served by
this evidence, it should have been excluded at the trial below.
B, The Agents’ Opinion Testimony
The prejudicial impact of the testimony concerning
the covert exchanges was further aggravated by the agents’
repeated expressions of their opinion that those exchanges
must have been drug transactions. Even if one assumes that
the possibility that appellant was engaging in sales of drugs
he had received from unknown sources was of some probative
value in this case, the question of whether that was what he
was doing when the agents observed him was a question for the
jury, not the agents, to decide. The agents’ insistence that
appellant must have been engaging in drug transactions, parti-
cularly when coupled with their suggestion that they were more
competent than the jury to draw that conclusion because of their
expert knowledge in this field, violated the Federal Rules of
Evidence and deprived appellant of his right to have his guilt
or innocence decided by the jury rather than the DEA.
Since the agents admittedly had no personal knowledge
as to what appellant was exchanging, their testimony that he
must have been exchanging drugs violated Rule 602 of the
Federal Rules of Evidence, which provides that:
A witness may not testify to a matter
unless evidence is introduced sufficient
to support a finding that he has personal
knowledge of the matter... -
- 41 -
es
r
SO ET ee RET EES Be me Se em “ —< " ort TE ee a
The testimony also violated the Federal Rules re-
lating to the expression of opinions by witnesses (Rules 701-
706). The learning of those rules is that opinions, whether
given by an expert or a lay witness, are not admissible unless
the proponent establishes that they have a sufficient factual
basis. This requirement is particularly mandated when the
opinions being expressed are not based on some specialized
knowledge or experience. Thus, Rule 701 states that:
If the witness is not testifying as
an expert, his testimony in the form
eof opinions or inferences is limited
to those opinions or inferences which
poet nl ym ge ial
Although the agents sought to portray their opinions as those
of experts so as to give them greater impact with the jury, in
fact no experience or training was specified by the witnesses,
nor can any be imagined by counsel, which would have given
these agents the clairvoyance to know what appellant was ex-
changing. Their insistence that it was drugs was not based on
expert knowledge or personal observation, but rather on unjusti-
fied speculation.
The agents’ expressions of opinion also failed to
satisfy the second requirement of Rule 701, which provides that
opinions may be expressed by a witness only if they are:
. « « (b) helpful to a clear under-
standing of his testimony or the
determination of a fact in issue.
The cases and authorities have consistently held that this re-
quirement is not met where the opinion expressed is not based
on expert knowledge but merely tells the jurors the conclusion
which the witness believes they should reach on a disputed
question of fact. Thus, as Judge Weinstein explains, if a
legal controversy centers around the question of whether a
particular object is a chair, the witness should not be per-
mitted to testify that the object is a chair. Rather, he
should be limited simply to describing the object, without
advancing that opinion as to the ultimate issue. Weinstein,
Evidence, §701[02], pages 701-715, quoting from King & Pillinger,
Opinion Evidence in Illinois 5, (1942). Put somewhat differently,
when the validity of a particular inference is one which common
knowledge would enable a juror to decide, it is not a proper
subject for expert testimony. Cohen v. Western Hotels, Inc.,
276 F.2d 26 (9th Cir. 1960); Duff v. Page, 249 F.2d 137 (9th
Cir. 1957); Schillie v. Atchison, Topeca and Santa Fe Railroad,
222 F.2d 810 (8th Cir. 1955). Here, the jurors were just as
capable as the agents to decide whether the latters' observations
were sufficient to justify the inference that appellant was
selling drugs. They should have been permitted to do so free
of the taint of the agents’ speculations.
In this regard, this case is similar to United States
v. Cox, 633 F.2d 871, 875-876 (9th Cir. 1980), in which the
district court permitted a witness who had testified that the
defendant had told her that he knew of someone who would blow
up cars for fifty dollars, to further testify that it was her
impression from this statement that the defendant had been
involved in a particular bombing. The Court of Appeals held
that the admission of this opinion had been error since the
validity of such an inference was for the jury, not the witness,
to decide.
In United States v. Alexander, 415 F.2d 1352, 1356-
1357 (7th Cir. 1969), cert. denied, 397 U.S. 1014 (1970), a
mail embezzlement case, the Court of Appeals held that a
security officer's testimony that he had observed the defendant
sitting in a car attempting to take some unidentified object
from under his clothes was admissible because it “did not refer
to the stolen mail or other matters beyond the immediate ob-
servations of the witness". Here, to the contrary, the agents’
testimony did refer to such matters.
o * *
Given the paucity of the government's proof, the case
against appellant, assuming it was sufficient, was at most a
borderline showing. In this context, the evidence that appellant
had engaged in covert exchanges of unspecified items, particularly
when coupled with the testimony by DEA “experts” that these were
drug transactions, would certainly have had a substantial, and
possibly a deciding, influence on the jurors. Since this evidence
“A failed to satisfy the tests set forth in the Federal Rules of
Evidence, its introduction at appellant's trial requires that
his conviction be set aside.
POINT IV
THE DISTRICT COURT ERRED IN
REFUSING TO INSTRUCT THE JURY
THAT HIS CHARGE ON AIDING AND
ABETTING WAS NOT APPLICABLE
TO THE CONSPIRACY CHARGE.
As part of his charge to the jury, the district court
instructed them that anyone who "aids, abets, counsels, commands,
induces ... procures... assisted... knowingly and wil-
fully associated himself or herself in some way with the criminal
venture and intentionally participated in it as something he
or she wished to bring about and had a stake in the outcome .
for] knowingly and wilfully seek by some act to make a criminal
venture succeed" is punishable as a principal (A 080-082).
He later repeated this instruction in response to a note from
the jury asking for “clarification of what intent means 4s
stated in the indictment” (T. 2347-2351).
That word was used repeatedly in the conspiracy charge
in the indictment and it could well have been in connection with
their deliberations on this count that the jurors were seeking
this clarification. Nevertheless, the district court refused
appellant's repeated requests for the court to clarify to the
jurors that his instructions on aiding and abetting were not
to be considered in connection with the conspiracy count (T. 2317,
2405).
he
An individual can properly be convicted of the crime
of conspiracy only if the government, establishes beyond a
reasonable doubt that he intentionally became 4 member of that
conspiracy (see, @-g-» United States v. Hysohion, 448 F.2d 343
(24 Cir. 1971) and that he aid so with knowledge of its overall
scope (see, e.g., United States v- Tramunti, 513 F.2a 1087,
1111 (24 Cir. 1975). Although the court did instruct the jury
as to those elements of the crime of conspiracy, his later in-
structions on aiding and abetting, coupled with his instruction
that aiders and abettors are punishable as principals, clearly
suggested that even if someone was not shown to be a member of
the conspiracy charged, he could be convicted of that crime if
it was shown that he had aided and abetted someone who was &
member .
This instruction was particularly prejudicial to
appellant. By applying it to the conspiracy count, the jury
could have convicted him even though they felt that the evi-
dence was insufficient to establish his knowing membership in
the conspiracy, simply because he had aided and abetted one of
its attempted sales by helping the agents to locate his brother
on August 6, 1981. Such 4 finding would have made appellant
merely a casual fscilitator rather than a conspirator;
consequently, his conviction on that basis would have been
improper. United States v. Hysohion, supra. Since the judge's
instructions permitted the jury to convict on such a theory,
appellant's conviction must be set aside.
6 ee ale
— Ae
POINT V
THE DISTRICT COURT ERRED IN ALLOWING
THE GOVERNMENT TO INTRODUCE INTO EVI~
DENCE THE TESTIMONY THAT WHEN APPELLANT
WAS ARRESTED, HE WAS IN POSSESSION OF
A SMALL VIAL AND SOME CELLOPHANE EN~-
VELOPES, SOME OF WHICH CONTAINED A
RESIDUE OF HEROIN.
The last evidence pertaining to appellant in this
case concerned August 10, 1981. In legal terms, the conspiracy
ended on October 13, 1981, the date on which the indictment was
filed (A 010). It was also over in practical terms by that date,
since most of the conspirators, including appellant's brother,
had already been arrested. Nevertheless, the government was
permitted to introduce into evidence over appellant's objection
testimony of the agents who arrested appellant that when he was
searched incident to that arrest, he was found to be in possession
of a small vial and several cellophane envelopes, some of which
contained a residue of heroin.
Since the conspiracy had already ended, appellant's
possession of these items could in no way have been an act in
furtherance of that conspiracy. Moreover, the government in-
troduced no proof that the heroin residue on the items found
on appellant's person had come from conspiracy sources. To
the contrary, since appellant's brother, who the government
was insisting was appellant's only source of conspiracy heroin,
had been in jail for over a week, there was little or no
possibility that said residue had come from conspiracy drugs.
There was not even any evidence that appellant, himself a heroin
addict, was selling the heroin found on his person as opposed
to using it himself.
As such, this evidence amount to proof of an uncharged
crime — possession of a controlled substance. It was not
relevant to any element of the crime charged; rather, it served
only to convince the jury that appellant was a criminal who
should be convicted regardless of his guilt or innocence of the
crime charged. Rule 404(b), Federal Rules of Evidence. More-
over, as *he only drugs ever connected to appellant, this evi-
dence was highly prejudicial. Rule 403, Federal Rules of Evidence;
United States v. Falley, 489 F.2d 33, 37-38 (2a Cir. 1973).
Since the evidence was not relevant to the crime charged, and
since it was so prejudicial, appellant's conviction should be
set aside. United States v. Falley, supra; United States v.
Benedetto, supra.
CONCLUSION
FOR THE REASONS SET FORTH ABOVE,
THE PETITION FOR A WRIT OF CERT~-
IORARI SHOULD BE GRANTED.
Respectfully submitted,
MICHAEL YOUNG, ESQ.
90 Broad Street
New York, New York, 10004
212-509-5474
ATTORNEY FOR PETITIONER THOMAS
UNITED STATES COURT OF APPEALS
For THE SECOND Circuit
——__~+}—_-——
Nos. 149, 150, 151—August Term, 1982
(Argued October 19, 1982 Decided March 4, 1983)
Docket Nos. 82-1109, 82-1113, 82-1115
—_——~)—_—_
UNITED STATES OF AMERICA,
Appellee,
—
Yvetre Carson, Lemuet Mont, a/k/a “Lam,” and
KENNETH THOMAS, a/k/a “Kenneth Davis,”
Deferdants-Appellants.
—a—
Before:
: Oakes and Winter, Circuit Judges,
and MacManon, District Judge.*
—_a—
* — Of the Southern District of New York, sitting by designation.
2185
Keoenche. A
Appeals from judgments of conviction entered in the
United States District Court for the Southern District of
New York after a four-week jury trial before Brieant,
Judge, for conspiracy to distribute and possess with
intent to distribute heroin, in violation of 21 U.S.C.
§ 846, and for distribution and possession with intent to
distribute heroin, in violation of 21 U.S.C. §§ 812,
841(a(1), (bIMA), and 18 U.S.C. § 2.
Affirmed.
—a—
Parricia ANNE WILLIAMS, New York, New
York (John S. Martin, Jr., United States
Attorney for the Southern District of
New York, Roanne L. Mann and Walter
P. Loughlin, Assistant United States
Attorneys, New York, New York, on the
brief), for Appellee.
Victor J. Herwitz, New York, New York,
for Defendant-Appellant Carson.
Barry A. SCHWARTZ, New York, New York
(Hermena Perlmutter and Salvatore A.
Quagliata, New York, New York, of
counsel), for Defendant-Appellant Mont.
MICHAEL YOUNG, New York, New York, for
Defendant-Appellant Thomas.
——
2186
MacManon, District Judge.
Yvette Carson, Lemuel Mont and Kenneth Thomas
appeal from judgments of conviction entered in the
United States District Court for the Southern District of
New York after a four-week jury trial before Honorable
Charles L. Brieant, Judge.
The fifteen-count indictment charged Carson, Mont,
Thomas and sixteen co-defendants with violations of the
federal narcotics laws. Count | charged all defendants
with conspiracy to distribute heroin and to possess it with
intent to distribute from June 1980 until October 1981, in
violation of 21 U.S.C. § 846 (1976).' The remaining
counts (Counts 2 through 15) charged various defendants
with distribution of heroin and possession with intent to
distribute, in violation of 21 U.S.C. §§ 812, 841(aX1),
(b)1MA) (1976), and 18 U.S.C. § 2 (1976).? Carson was
———
1-21 U.S.C. § 846 provides:
both which may not exceed the bed
for the offense, the commission of which was the object of the
attempt or conspiracy.
2 21 U.S.C. 16 B41aK 1), (OKIMA) provide:
(a) Except as authorized by this subchapter, shall be unlaw-
ful for any person knowingly or intentionally —
charged in three substantive counts (Counts 13 through
15) and Mont in seven counts (Counts 3 through 9).
Thomas was named in the conspiracy count only.
Trial commenced against Carson, Mont, Thomas and
co-defendant Gayburnetta Galloway.’ At the close of the
government's case, Judge Brieant dismissed Count 13
against Carson and Counts 3 through 6 against Mont and
consolidated Counts 8 and 9 which named Mont.
After deliberating for three days, the jury found Car-
son guilty of the conspiracy count and one of the remain-
ing substantive counts (Count 15), but found her not
guilty on the other substantive count (Count 14). Mont
was found guilty on the conspiracy count, the consoli-
dated substantive count (Count 8), and the remaining
years, a fine of not more than $25,000, or both. If any
person commits such a violation after one of more prior
convictions of him for an offense punishable under this
paragraph, or for a felony under any other provision of
this subchapter or subchapter II of this chapter or other
Ruane, or ern parson shall be sentenced 10 8 term of
imprisonment of not more than 30 years, @ fine of not
more than $50,000 or both. Any sentence imposing a term
of
(a) Whoever commits an offense against the United States or
aids, abets, counsels, commands, induces or procures its com-
mission, is punishable as a principal.
(>) Whoever wilfully causes an act to be done which if directly
performed by him or another would be an offense agains! the
United States, is punishable as a principal.
’ Of the remaining fifteen defendants, eleven have pleaded guilty and
are serving their sentences. Four defendants remain at large.
substantive count (Count 7). The jury found Thomas
guilty on the conspiracy count. Galloway was found not
guilty on the conspiracy count, and the jury was unable to
reach a verdict as to her on the substantive count (Count
15).*
Viewed most favorably to the government, the proof
showed a loosely-knit organization engaged in the distri-
bution of heroin. Initially occupying the upper echelon
were Fred Galloway and Fred Chaffin, who received
heroin from sources identified as “the Italians” and
distributed it through their network of associates. Chaffin
was ultimately supplanted by Carson, who was affiliated
with Guy Wilkins. Prior to his ouster in the summer of
1981, Chaffin served as both source and partner to the
conspirators at the next level of distribution, Carson,
Mont, and, at times, Guy Wilkins. These individuals cut
heroin for further distribution and engaged in wholesale
transactions as well. Carson’s subordinates included her
brother, Kenneth Nunes; Thomas Wilson; appellant
Thomas and his brother, Howard Thomas; and the
workers in Carson’s cutting mill located at her residence.
Wilkins’ subordinates were Arthur Collins; Wilkins’
brother, Michael Green; and Anthony and Philip Pegues.
Working as distributors for Mont were Shawn Lovett;
David Wilkins; and, prior to his advancement through
the organization, Guy Wilkins. The roles of the various
4 Judge Brieant sentenced Carson to consecutive terms of imprison
mane af fifteen and five years on Counts | and 15, respectively, 10 be
ae ots by a special parole term of three years, Mont was sentenced
as a second felony offender, pursuant to 21 U.S.C. § 851, to concur
a. terms of imprisonment of thirty years on Counts |, 7 and 8, to be
followed by lifetime special parole. Thomas was sentenced 10 fouriess
years on Count | Gayburnetta Galloway emered into a deferred
prosecution with the government following trial with re-
spect to the substantive charge.
2189
defendants became apparent during the course of sixteen
months of undercover investigative work by agents of the
Drug Enforcement Administration (“DEA”), who made
fourteen purchases of high-quality heroin for approxi-
mately $151,400, and two pounds of quinine.
The principal evidence linking each appellant to the
conspiracy is:
MONT
The evidence demonstrated that Mont was @ major
distributor of heroin. He was vai jousty described as
owning or operating the Our Place Bar,’ a heroin market-
place. Thus, on several occasions, Guy Wilkins sold
heroin to DEA Agents Baker, Coleman and Williams at
or in the vicinity of the Our Place Bar. On August 13,
1980, Wilkins sold a sample to the agents and informed
them that he and his brother, David Wilkins, received
their heroin from the same source—the owner of the Our
Place Bar.* During this sale, the agents indicated that they
could sell quinine to Wilkins’ source, and Wilkins agreed
to arrange a meeting between his source and the agents.
On September 29, 1980, Guy Wilkins sold the agents two
ounces of heroin for a price of $20,000 at the Our Place
Mont’s heavy involvement in the heroin business was
solidly shown by his dealings with the agents in October
ee
s The Our Place Bor was legally owned by an entity whose sole offset
described
1980. On October 3, Agents Baker and Coleman met with
Mont at the Our Place Bar, and he agreed to purchase
liquor from them.” En route to Queens to pick up the
liquor, Baker told Mont that he was unhappy with the
Wilkins brothers and was seeking a reliable source of
heroin. Baker also offered to sell some quinine. Mont
replied that he had heroin connections and could supply
the four ounces that Baker wanted. After picking up the
liquor, they returned to the bar, where Mont paid Baker
$900 for the liquor in $100 bills. The serial numbers on
two of the bills matched those on two of the bills that the
agents had paid to Guy Wilkins for the heroin the agents
bought on September 29. Mont stated that his connection
was returning that evening and that the agents should
remain at the bar. After a wait of two hours, nobody
appeared and the agents left.
On October 27, Mont asked Baker about the quinine
that Baker had offered on October 3. Baker replied that
he had ten pounds left Mont was interested and said he
would speak to his connection about selling heroin to
Baker. The following day, Guy Wilkins called Agent
Coleman seeking immediate delivery of @ pound of
quinine for David Wilkins and Mont. Wilkins stated that
he, his brother David, and Mont were partners in the
heroin business. That evening, Agents Baker and Wil-
liams sold the pound of quinine to Mont at the Our Place
Bar for $400. When informed as to what Wilkins had said
about Mont's partnership with Guy and David Wilkins,
Mont replied that Guy Wilkins used Mont’s name when
Wilkins wanted “some clout in his commitments.” When
’ The possibility of selling “stolen” liquor to Mont was raised fiw by
Agents Baker and Coleman in a September 12, 1980 meeting with Guy
Agents Bavikims agreed 10 mention the liquor 0 “the owner of the
RT eR»
Baker asked Mont about purchasing heroin, Mont indi-
cated that he would have his connection bring a sample to
the bar the next day.
On the following day, October 29, Agents Baker and
Coleman arrived at the Our Place Bar, where they ob-
served Mont, David Wilkins and Shawn Lovett convers-
ing. David Wilkins went to the telephone, and Mont told
the agents (hat he was trying at that very moment to get
his heroin connection to bring a sample to the bar. David
Wilkins and Lovett left the bar after again speaking with
Mont. Guy Wilkins arrived and told the agents that he
had received the quinine that they sold to Mont, that
David Wilkins had given Mont the money io pay for the
quinine and that Mont had recently sold David Wilkins
an eighth of a kilogram of heroin.
CARSON
Carson’s role in the conspiracy was shown in a series of
meetings between the conspirators and the agents. On
July 21, 1981, Wilkins agreed with the agents to arrange
their purchase of heroin from Fred Galloway. Subse-
quently, on July 25, the agents went to the Flash Inn at
the appointed time and place. When Wilkins arrived, he
was accompanied by Carson, whom he introduced as his
“partner.” Carson told the agents that she had met
Wilkins through Fred Chaffin and acknowledged that she
and Wilkins were now partners. Wilkins, Carson and
Agent Johnson discussed the irony of Wilkins’ dealing
Carson’s narcotics over a year, although neither was
known to the other. Wilkins stated that Carson had an
overseas heroin connection," and Johnson asked Carson
6 On July 1’, 1981, Guy Wilkins told Agent Baker, when Baker
inquired about sources of heroin, that he, Wilkins, had “made con-
2192
how it worked. Carson replied that a friend of hers had
the connection, that her friend employed overweight
women to carry the heroin into the country on their
person, and offered to act as an intermediary between her
friend and the agents if the agents wanted to buy heroin.
Agent Williams asked Carson if she knew the people
whom they were going to do business with that morning.
Carson stated that she did and that she had met them
through her “old man.”
Later that day, ai Close Encounters Discotheque, where
the sale was consummated, Carson elabofated on her role
in the heroin business.’ She told Agent Williams that her
“old man” was in jail, that she was running his heroin
business, and that she had to be careful because she
wanted to save money to “set him up right” upon his
release from prison. She also stated that she had been
Chaffin’s partner for quite a while and that their partner-
ship had ended “just recently.”
tact” with Carson and another woman. This “other woman,” Wilkins
indicated, imported the heroin. Wilkins also stated that if Baker were
to meet with her, he, Baker, would not need to deal with anyone else
At the July 17 meeting, Wilkins also stated that Chaffin, from
whom the agents had bought heroin, had fallen out of favor with other
conspirators because he owed over $100,000 to “the Italians” and over
$58,000 to “Can Do's” (Kenneth Nunes’) sister, Carson. Carson
said, owed her $58,000 for a heroin package, along with an
additional $12,000. Later, at the discotheque, Carson told Agent
Johnson that Cha was there because he wanted to borrow money,
but that credit was bad because he owed people money, confirming
the figures ¢ Wilkins had stated previously. According to Carson,
“the Italians” had advanced $100,000 worth of heroin to Chaffin
him, but Chaffin failed to repay them
severed her relationship with Chaffin and
ill
fF
i
fuller description of the events of July 25, see the discussion of
+ conviction on the substantive count, infra.
2193
fz
On July 28, 1981, Agents Johnson and Baker met with
Guy Wilkins and Carson’s son, Kevin, at the Flash Inn."°
Wilkins stated that he and Carson each had a half-pound
of heroin and needed quinine. Later that day, Johnson
and Baker met with Wilkins and Carson at a Jack-in-the-
Box restaurant in the Bronx. Carson said that she was
rushed because of the presence of customers from Wash-
ington, D.C., to whom she was selling heroin. She also
told Johnson that she would meet two potential sources
later in the week and that she was “not too sure” about
one but “85 per cent sure” of the other. Baker told
Carson that he wanted to become her partner and asked
her to mention him to her “Italian source,” whom she
planned to meet on July 30. Carson also reiterated the
existence of her partnership with Wilkins.
On July 31, 1981, Agents Baker and Williams met with
Wilkins, and Baker asked Wilkins what had become of
Carson. Wilkins stated that Carson had visited a prison to
obtain a reference for her introduction to some “Italian
sources.” Baker then asked if Carson had spoken to the
“Italian source” regarding Baker’s becoming a partner.
Wilkins replied that the source had refused to meet with
Baker.
The scope of Carson's involvement in the conspiracy
was further evidenced in an aborted heroin transaction
which took place on August 10, 1981. On that date,
Agents West and Johnson met with Howard Thomas at.4
Kenneth Nunes, Carson's brother, to purchase heroin.
Nunes stated that he had to call his sister to approve the
deal, then left the group and placed a telephone call.
0 Baker and Johnson also met with Wilkins a day earlier, on July 27.
Wilkins informed the agents that Carson was unable to attend the
meeting because she had to prepare for a sale of heroin to customers
who had come to New York from Washington, D.C.
2194
Rg 2
rit ie fi BW Ly a
When he returned, Nunes said that his sister did not want
to deal with the agents because Johnson asked “a lot of
questions” the last time he met with her. On that evening,
Howard Thomas also informed Agent West that Nunes
was Carson's brother and that since Johnson knew
Nunes, Johnson could go to Carson's house, which was
the cutting mill. There, Thomas said, Carson employed
six Or more persons to cut and package heroin.
On August 12, 1981, Agent West, accompanied by an
informant, conversed with Howard Thomas regarding
Nunes’ refusal to deal with the agents on August 10.
Thomas indicated that Nunes had told him that Carson
did not want to conduct business with Agent Johnson
because the agents had asked “too many questions” on
July 25. Thomas, apparently referring to the July 25 sale,
also said that Carson had done a prior deal with Agents
Johnson and West, and that Nunes was a runner and
cutter for Carson.
KENNETH THOMAS
Evidence tying Thomas to the conspiracy is as follows:
On July 21, 1981, Agents Johnson and West negotiated
with Kenneth’s brother, Howard Thomas (“Howard”),
for the purchase of one ounce of heroin. During the
course of the negotiations outside the Star Lounge, the
agents observed Thomas engaging in what appeared to
them to be drug transactions, /.¢., individuals approached
furtively handed to them by Thomas. Later that day,
Howard introduced the agents to Thomas Wilson
(“Hillside”), who sold them approximately one ounce of
On August 6, 1981, Agents Johnson and West returned
to the vicinity of the Star Lounge, where they asked
2195
Thomas if he could locate Howard. Thomas replied that
Howard had told him what the agents wanted. Thomas
then entered the agents’ car and directed their search for
Howard, whom they eventually found at the Star
Lounge. Howard approached the car and Thomas left,
positioning himself on a street corner. A short time later,
Thomas approached Howard and attempted to hand him
some money; Thomas was told to wait, and he returned
to the corner. Thereafter, a woman approached Howard
and asked if he “had anything:” Howard directed her to
the corner where Thomas and others were standing.
On August 10, 1981, the agents again returned to the
vicinity of the Star Lounge, where they met Howard.
Howard indicated that his sources were temporarily out
of heroin but would be resupplied that evening. Later,
while waiting for Wilson to arrive, Howard told Agent
Johnson that Wilson was one of only six or eight people
who could go to the mill where the heroin was cut and
that he, Howard, had been there only eight times during
the past two and one-half years. While waiting, the agents
watched Thomas, Howard and others engaging in numer-
ous furtive exchanges which appeared to the agents to be
narcotics transactions.
Later that evening, Howard suggested that the agents
buy heroin from another source, which he indicated as
someone sitting in a Lincoln Continental parked in front
of the agents’ car. When the agents seemed reluctant,
Howard assured them that this person’s heroin was from
the sarne source as that provided by Wilson. The agents
agreed to buy the heroin from the person in the Lincoln
Continental, but the transaction did not take place be-
cause Thomas, Howard and a young woman spotted a
surveillance vehicle across the street, walked toward it,
and stood facing the vehicle for a short time. The driver
2196
of the Lincoln Continental spoke briefly to the surveil-
lance agent, who thereupon drove away from the area.
Howard then advised the agents that there were a lot of
police nearby.
On October 20, when Thomas was arrested, he had
upon his person two small glass vials (one with traces of
heroin and another with traces of cocaine), one cel-
lophane bag containing traces of lactose, and several
small empty cellophane bags.
DISCUSSION
A. Claim Common to All Appellants:
Single v. Multiple Conspiracies.
Mont argues that the evidence established multiple
conspiracies rather than the single conspiracy charged in
the indictment. Carson and Thomas adopt this argument;
in addition, they challenge the sufficiency of the evidence
supporting their convictions on the conspiracy count.
Judge Brieant charged the jury on the issue of multiple
conspiracies, and no appellant claims error in the charge.
Our inquiry, therefore, is directed to whether the evidence
supports the jury’s finding tha: the government proved
the conspiracy charged in Count 1 and each defendant's
participation in it." United States v. Alessi, 638 F.2d 466,
normally
instructed jury. United Stores v. Abtsi, 638 F.2d 466, 472 (24 Cir
1980); United States v. Murray, 618 F.2d 892, 902 (2d Cir. | o
980)
United , MrGrath, 613 F.2d 361, 367 (2d Cir. 1979); United
States v. Taylor, 4,2 F.2d 1345, 1351 (2d Cir.), cert. denied sub nom.
Salley v. United $ tates, 432 U.S. 909, 97 S.Ct. 2958, $3 L.Ed.2d 1083
(1977); United § ates v. Armedo- , $45 F.2d 785, 789 (2d Cir.
pit cert. denied, 490 U.S. 917, 97 S.Ct. 1330, 51 L.Ed.2d 595
(1977). °
2197
472-73 (2d Cir. 1980); United States v. Taylor, 562 F.2d
1345, 1351 (2d Cir.), cert. denied sub nom. Salley v.
United States, 432 U.S. 909, 97 S.Ct. 2958, 53 L.Ed.2d
1083 (1977).
The law regarding claims that the proof demonstrates
multiple conspiracies was recently summarized by us in
United States Vv. Alessi, supra, 638 F.2d at 472-73. We
inquire whether the evidence
supports a finding that the alleged conspiracy was
proved and that each appellant was @ member of it
and, if not, whether the variance substantiaily preju-
diced any of the appellants. Having in mind that “the
gist of the offense remains the agreement,” United
States v. Borelli, 336 F.2d 376, 384 (2d Cir. 1964),
cert. denied sub nom. Mogavero V. United States,
379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965),
we must, in order to resolve these issues, examine the
evidence to determine what kind of egreement or
understanding could reasonably have been found to
exist as to each appellant. This requires a review of
the defendants’ activities as a whole in order to
determine the scope of the criminal enterprise OF
enterprises and whether any of them fits the pattern
of the conspiracy alleged in the indictment. The next
step is to review each appellant’s conduct and state-
ments to determine whether it could reasonably be
inferred that he participated in the alleged enterprise
with a consciousness of its general nature and ex-
tent. . . - Proof of an appellant’s membership de-
pends upon the extent of his knowledge, given the
scale of the criminal enterprise (citations omitted).
Count 1 charged the defendants with a conspiracy,
extending from June 1980 through October 1981, to
2198
possess with intent to distribute and to distribute heroin.
There was evidence from which the jury could have found
the existence of a single conspiracy. When viewed in the
light most favorable to the government, the proof showed
that Fred Galloway and Fred Chaffin distributed large
quantities of heroin that they received from sources
identified only as “the Italians.” The connection be-
tween Galloway and Chaffin, on the one hand, and Guy
Wilkins,” on the other, was evidenced during a sale of
$45,000 worth of heroin to the agents on May 28, 1981.
The agents paid $40,000" to Wilkins, who placed it ina
shoulder bag. After the sale, Chaffin entered the resi-
2 The importance of the “Italian connection” was illustrated in May
1981, when heroin was in short supply. On May 20, Guy Wilkins
informed the agents that there was no heroin available because of the
death of one of “the Italians” and a resulting reorganization. The
jon, Wilkins said, involved Chaffin and a friend of Chaf-
fin’s, for whom “the Italians” had purchased a discotheque in West-
chester County. On May 27, 1981, Wilkins and Chaffin each toid the
agents that Chaffin had two partners with direct connections to “the
Italians” and that these partners received their heroin in fifteen-kilo-
gram lots. Later, on July 17, 1981, Wilkins told the agents that Fred
Galloway received his heroin from the same source—“the Italians” —
as Chaffin did.
” Initially, Guy Wilkins sold the agents heroin that he had obtained
from Mont and David Wilkins. However, David Wilkins, suspecting
that the agents were agents, was reluctant to deal with them, and Guy
Wilkins began searching for new sources of heroin. Guy Wilkins found
his new source in Chaffin, and together they dealt with the agents from
Novernber 1980 to June 1981. Thereafter, Chaffin fell out of favor
with ‘the Italians” and others, and Guy Wilkins began his partnership
with Carson.
Additional evidence of a Guy Wilkins-Fred Galloway connection is
an aborted sale of quinine by the agents ‘0 Galloway, which took place
on August 4, 1961. On that date, Agents Baker and Johnson, along
with Guy Wilkins, delivered a barrel of quinine to the Close Encoun-
ters Discotheque. Galloway, refusing to speak directly with the agents,
sent word through Wilkins that he did not need quinine at that time
and preferred cash payments for heroin.
14 ~—s- The remaining $5,000 was paid on June 23, 1981.
2199
dence of Galloway carrying th bag but emerged shortly
thereafter without it."” The relationship between Chaffin
and Carson was admitted by Carson—by her own ac-
count, they had been partners. Moreover, Carson and
Wilkins admitted to a partnership relation between them
after the ties between Carson and Chaffin had been
severed. It was at this time that Carson established direct
connections to “the Italians.” The outlines of the con-
spiracy at its lower levels was also established at trial:
Mont served as source and partner to David Wilkins, and
as a source to Guy Wilkins prior to his rise through the
organization. Moreover, there is evidence that Carson
operated a heroin mill out of her home and employed
“Hillside,” the Thomas brothers and others as lower-level
distributors.
Denying any connection between Chaffin and himself
and claiming that Guy Wilkins had multiple unrelated
sources, Mont argues that the proof showed multiple
conspiracies. There was evidence, however, from which a
ber 1980, when Wilkins introduced Chaffin to the agents
as his new source, Wilkins, nevertheless, indicated that
Mont and Chaffin were affiliated and further stated that
Mont and David Wilkins did not wish to be cut out of
their profit as intermediaries. This suggests strongly that
Mont had been receiving heroin from Chaffin. Moreover,
on February 23, 1981, Shawn Lovett, who worked for
David Wilkins, spoke with Chaffin immediately prior to
picking up a kilogram of heroin for David. During this
period, Mont and David Wilkins were partners in (he
heroin business. Finally, both Carson and Guy Wilkins
——
3 Thereafter, Chaffin, Wilkins and an unidentified female drove to ‘he
residence of Carson, from which Chaffin and Wilkins emerged after #
acknowledged the irony of Wilkins’ dealing Carson's
narcotics for over a year when neither knew the other
personally. During this period, Wilkins was distributing
heroin for Mont and Carson was Chaffin’s partner.
In any event, there was substantial cooperation be-
tween Mont and Guy Wilkins even after Wilkins ¢s-
tablished his relationship with a “new” source of heroin,
Chaffin, in October 1980. Wilkins obtained some of the
quinine that Mont and David Wilkins had purchased
from the agents and used it to cut heroin he received from
Chaffin. David's arrangement to pick up heroin from
Chaffin in February 1981 further demonstrates the mu-
tual assistance between Mont and David Wilkins, on the
one hand, and Chaffin and Guy Wilkins on the other. In
short, the proof at trial “revealed the existence of . . .
unlawful operations by functional interlocking groups
_ who were virtually dependent on one another for
overall success.” United States v. Alessi, supra, 638 F.2d
at 473. The inference that there was one loose-knit con-
spiracy as alleged is justified. See United States v. Pane-
bianco, $43 F.2d 447, 452-53 (2d Cir. 1976), cert. denied,
429 U.S. 1103, 97 S.Ct. 1128, $1 L.Ed.2d 533 (1977);
United States v. Tramunti, $13 F.2d 1087, 1106-07 (2d
Cir.), cert. denied, 423 U.S. 32, 96 S.Ct. 54, 46 L.Ed. 50
(1975); United States v. Sperling, 506 F.2d 1323 (2d Cir.
4974); United States v. Bynum, 485 F.2d 490, 495-97 (2d
Cir. 1973), vacated and remanded on other grounds, 417
U.S. 903, 94 S.Ct. 2598, 41 L.Ed.2d 209 (1974).
Turning to appellants’ knowledge and participation,
there was sufficient evidence to sustain the jury’s convic
tion of Mont, Carson and Thomas on the conspiracy
charge. The proof shows that Mont conducted a substan-
tial heroin business from the Our Place Bar. \n addition
to the transactions outlined above, there was testimony
2201
from which the jury could infer that Wilkins and his
brother David received from Mont and sold a kilogram of
heroin every week. Moreover, in his conversation with
Agent Baker, Mont indicated that he anticipated no
problem in satisfying Baker’s demands for heroin. Mont
had suvordinates, such as David and Guy Wilkins, who
assisted him in the distribution chain. Mont also observed
the advancement of Guy Wilkins through the organiza-
tion, providing him with assistance in the form of
quinine. The evidence, therefore, sustains the jury's find-
ing that Mont had knowledge of the outlines of the
enterprise, United States v. Alessi, supra, 638 F.2d at 474,
and ‘‘knew from the scope of [its] operation that others
were involved in the performance of functions vital to the
success of the business." United States v. Sisca, 503 F.2d
1337, 1345 (2d Cir.), cert. denied, 419 U.S. 1008, 95 S.Ct.
328, 42 L.Ed.2d 283 (1974) (quoting United States v.
Bynum, supra, 485 F.2d at 496; United States v. Calabro,
467 F.2d 973, 982-83 (2d Cir. 1972), cert. denied, 410
U.S. 926, 92 S.Ct. 978, 30 L.Ed.2d 801 (1973)). The
government, of course, was under no obligation to show
that Mont ‘‘knew every other member or was aware of all
acts committed in furtherance of it.’’ United States v.
Alessi, supra, 638 F.2d at 473."
6 Mont argues that “the record is conspicuously silent of [sic] even the
slightest reference to Mont from October 31, 1980 to October 4, 1981,
the day Mont was arrested” (reply brief at 14). However, it is well
settled that “participation in a conspiracy may continue beyond the
performance of an overt act by the alleged conspirator, if the con-
spiracy continues in existence thereafter,” United States v. Cianchetti,
315 F.2d $84, $89 (2d Cir. 1963), and that a turnover in personnel does
necessarily terminate a conspiracy, United States v. Penebianco,
Regarding Carson’s involvement, she was, by her own
admission, a partner of Chaffin, and then Wilkins, in the
heroin trade. Carson’s initial partnership with Chaffin
dissolved after Chaffin became substantially indebted to
both Carson and ‘‘the Italians.’’ She also admitted deal-
ing directly with customers from Washington, D.C.
Moreover, the evidence showed that Carson used her
residence aS @ cutting mill, where six or more people
diluted and packaged heroin, and that she employed
Hillside and the Thomas brothers as lower-level distribu-
tors. The jury was warranted in concluding that Carson
knowingly participated in the conspiracy.
Evidence of Thomas’ participation in the conspiracy is
less compelling. However, the standard for appellate
review of an insufficiency claim placed a “‘very heavy
burden” on the appellant. United States Vv. Losada, 674
F.2d 167, 173 (2d Cit), cert. denied, __._ U.S. _—_ 102
S.Ct. 2945, —— 1.86.26 0 (1982). Our inquiry is
whether the jury, drawing reasonable infezences from the
evidence, may fairly and logically have concluded that the
defendant was guilty beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 317, 9 S.Ct. 2781, 2788, 61
F.2d 121, 157 (2d Cir. 1979), cert. denied, 446 U.S. 907,
100 S.Ct. 1833, 64 L.Ed.2d 260 (1980). In making this
determination, we "ust view the evidence in the light
most favorable to the government, Glasser v. United
States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680, 704
(1942), and construe all permissible inferences in its
favor, United States v. Dazzo, 672 F.2d 284, 288 (2d
Cir.), cert. denied, _. U.S. __, $03 6.Ci. Gi,
L.Ed. ___ (1982). Moreover, participation in a con-
spiracy may be proven by circumstantial evidence. See
United States v. Barnes, supra, 604 F.2d at 156 and cases
cited therein. Applying these standards, we hold that the
evidence supporting Thomas’ guilt on the conspiracy
charge is sufficient.
Indicative of Thomas’ membership in the conspiracy
were, of course, his furtive street-corner activities, which
the jury could infer were drug transactions. Although this
proof, taken alone, is insufficient to support the conclu-
sion that Thomas was dealing conspiracy heroin, there is
more. Thomas’ activities on August 6, 1981 are of great
significance. The agents, as noted above, were looking
for Howard Thomas pursuant to a prearranged agrec-
ment to purchase heroin from him. Fully aware of the
agents’ purpose, because Howard had told him, Thomas
successfully assisted the agents in their search. From this,
the jury was entitled to conclude that Thomas was know-
ingly facilitating a heroin sale between Howard Thomas
and the agents.
The same conclusion could be drawn with respect to
Thomas’ participation in an aborted heroin sale on
August 10. On that occasion, Thomas, along with How-
ard Thomas and an unidentified woman, approached and
stared at a DEA agent parked across the street from the
heroin seller who occupied the Lincoln Continental.
Thereafter, Howard cautioned the agents concerning the
police presence. This “seemingly innocent act, when
viewed in the context of surrounding circumstances,”’
justified ‘‘an inference of complicity.’’ United States v.
2204
' ; etna ~— fe yay: SN ae
rp “Ss v, te pit - ier As re, os me ET BS
Ts ae Ee GO SO TE OT Ae ae OY Ue ees
Calabro, 449 F.2d 885, 890 (2d Cir. 1971), cert. denied,
404 U.S. 1047, 92 S.Ct. 428, 30 L.Ed.2d 735 (1972).
When this evidence of knowing assistance is viewed in
conjunction with Thomas’ street-corner activities, which
take on color in light of Howard's extensive heroin
dealing, United States v. Tramunti, supra, $13 F.2d at
1108-09, it was reasonable for the jury to conclude that
Thomas was a member of the conspiracy, albeit at the
retail level. This inference is strengthened upon considera-
tion ef evidence that the location where Thomas trans-
acted his business was a heroin market—thus, the
presence on this block of the heroin supplier in the
Lincoln Continental and the proximity of the grocery
store operated by Howard's heroin partner, ‘*Hillside.”’
Thomas urges exculpatory explanations for each strand
of evidence. However, “‘pieces of evidence must be
viewed not in isolation but in conjunction." United States
v. Geaney, 417 F.2d 1116, 1121 (2d Cir. 1969), cert.
denied, 397 U.S. 1028, 90 S.Ct. 1276, 25 L.Ed.2d 539
(1970). In this case, as in United States v. Monica, 295
F.2d 400, 401 (2d Cir. 1961), cert. denied, 368 U.S. 953,
82 S.C). 395, 7 L.Ed.2d 386 (1962), ‘each of the episodes
gainea color from each of the others.”” See also, United
States v. Stanchich, $50 F.2d 1294, 1300 (2d Cir. 1977).
The government's proof need not “exclude every reason-
able hypothesis, other than that of guilt”’ to support a
conviction. Holland v. United States, 348 U.S. 121,
139-140, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954); United
States v. Taylor, 464 F.2d 240, 244 (2d Cir. 1972); see
also, United States v. Lubrano, $29 F.2d 633, 636 (2d
Cir. 1975), cert. denied, 429 U.S. 818, 97 S.Ct. 61, 50
L.Ed.2d 78 (1976).
Thomas also contends that the government has failed
to prove that he had knowledge of the overall conspiracy
2205
in which he participated. However, Thomas’ membership
was evidenced by continuing street-corner sales along
with isolated instances in which he attempted to further
or protect the business. Therefore, “‘[t]he jury could
properiy infer that [Thomas] had knowledge of others
above him in the chain of distribution and that he was
dependent on their activities. . . ."’ United States v.
Barnes, supra, 604 F.2d at 159. See also, United States v.
Taylor, supra, 562 F.2d at 1352-53, 1354; United States v.
Tramunti, supra, $13 F.2d at 1110, 1112. Thus, the
“single act’’ doctrine upon which Thomas relics, see
United States v. Torres, $03 F.2d 1120, 1123-24 (2d Cir.
1974) and cases cited therein, is inapposite here. More-
over, there is evidence that Thomas was aware of drug
transactions in which he did not participate directly—
those involving his brother Howard and the agents. In
short, ‘“‘it could reasonably be inferred that [Thomas]
participated in the alleged enterprise with a consciousness
of its general nature and extent.’’ United States v. Alessi,
supra, 638 F.2d at 473. Again, it is not the government’s
burden to prove that Thomas knew all the conspirators or
each of their activities.
Even if a variance existed between the conspiracy
charged and the conspiracies proved at trial, we would
reverse as to an appellant only upon a showing that he
had suffered substantial prejudice. Kotteakos v. United
States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 1247-48, 90
L.Ed. 1557, 1566-67 (1946); Berger v. United States, 295
U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314, 1318
(1935). There is no such showing here. There was no
charge here based on Pinkerton v. United States, 328
U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), which
allows one member of a conspiracy to be convicted for
substantive crimes if committed by another in furtherance
2206
of the conspiracy. We have found no hearsay statements
uttered by a member of one of the conspiracies that was
used to the detriment of a member of another. United
States v. Miley, $13 F.2d 1191, 1208 (2d Cir.), cert.
denied sub nom. Vavrigos v. United States, 423 U.S. 842,
96 S.Ct. 75, 46 L.Ed.2d 662 (1975). There was also no
prejudicial ‘‘spillover effect.” Evidence that each appel-
lant conspired to distribute heroin was substantial. More-
over, although nineteen defendants were indicted, only
four went to trial, and there were at most two conspira-
cies. Thus, the number of persons tried together was
small enough to enable the jury to give individual consid-
eration to each. See, United States v. Alessi, supra, 638
F.2d at 475 (ten defendants, conviction affirmed); United
States v. Ricco, $49 F.2d 264, 271 (2d Cir.), cert. denied
sub nom. Indiviglia v. United States, 431 U.S. 905, 97
S.Ct. 1697, $2 L.Ed. 389 (1977) (twelve indicted, three
unindicted co-conspirators, five went to jury, two con-
, conviction affirmed)."
That the defendants were accorded such consideration
‘appears from the verdicts: Carson was acquitted on one
of the two substantive counts against her, and the jury
acquitted Gayburnetta Galloway on the conspiracy count
and was unable to reach a verdict on the substantive
count against her. United States v. Alessi, supra, 638 F.2d
at 475; United States v. Toliver, $41 F.2d 958, 963 (2d
Cir. 1976). Finally, no ‘shocking or inflammatory” evi-
dence was introduc against any of the defendants. See,
United States v. Alessi, supra, 638 F.2d at 475; ef. United
”
Cf. K v. United States, 328 U.S. 759, 733, 6 S.Ct. 1239,
1242, 90 L.£4.2d 1557, 1560 (1946) (thirty-two indicted, nineteen tried
together, thirteen went to jury, conviction reversed); States v.
Bertolotti, $29 F.24 149, 156 Od Cir, 1975) (iwenty-nine indicted,
thirty-one unindicted co-conspirators, seventeen went to jury, at least
four conspiracies, conviction reversed).
2207
States v. Bertolotti, $29 F.2d 149, 158 (2d Cir. 1975).
Rather, ‘the crimes of the various appellants were not
markedly different,"’ United States v. Miley, supra, $13
F.2d at 1209, and the evidence introduced at trial against
all defendants consisted mainly of real and testimonial
evidence pertaining to drug transactions. See, United
States v. Ricco, supra, 549 F.2d at 271.
B. Claims of Mont.
Mont argues that the court below erroneously admitted
a hearsay statement implicating him in the distribution of
heroin. Finding this claim without merit, we affirm
Mont’s conviction on all counts.
During his testimony, Agent Baker recounted a conver-
sation he had in Atlanta with an individual named
““Sam.”’ Baker met Sam at Guy Wilkins’ suggestion and
used the occasion to identify sources of heroin. Sam
indicated that he did not deal in heroin but made two
telephone calls in an unsuccessful attempt to locate a
source. Sam then asked, ‘‘Why don’t you go to Lam?"""
Baker inquired, ‘‘Who is Lam? Is he the owner of the
Our Place Bar?”’ Sam replied, ‘Yes, he is probably doing
the largest amount of heroin in Manhattan."’ Sam said he
would go to New York and, if Baker had difficulty
meeting Lam, he, Sam, would introduce them. Mont
contends that these statements were inadmissible because
Sam’s membership in the conspiracy was not indepen-
dently established and because the statements were not
within any exception to the rule against hearsay. See,
Fed.R.Evid. 801(d)(2E); United States v. Geaney, su-
pra, 417 F.2d at 1120. The government responds that
‘s “Lam,” of course, is a nickname for Mont, whose initials are
“L.A.M.” See note 6 supra.
2208
Mont failed to preserve this issue for appellate review and
argues further that Sam's statements were admissible as
statements of a co-conspirator, as verbal acts, and as an
aid to the jury's understanding of background events
leading to the agents’ investigation of Mont. Finally, the
government argues harmless error. We conclude that if it
were error to admit these statements, it was harmless
because (1) the jury already had twice heard the substance
of Sam's remarks, and (2) there was substantial addi-
tional evidence of Mont’s guilt.
There was earlier evidence that when Agent Baker
purchased heroin from Guy Wilkins on July 18, 1980,
Wilkins indicated that his source was the owner of the
Our Place Bar’® and that the owner would soon receive
part of a two-hundred pound shipment of heroin.
Similarly, there was earlier testimony that on Septem-
ber 9, 1980, when Agents Baker and Coleman gave Guy
Wilkins an ounce of quinine and Baker announced he
wanted to trade quinine towards the cost of heroin,
especially with ‘the Our Place Bar source of supply,”
Wilkins replied ‘“‘that’s possible,” because that source
was one of the largest dealers of heroin in Manhattan and
would probably need the quinine. Baker asked whether
that source had received part of the two-hundred pound
shipment of heroin, and Wilkins answered that it had not.
In short, Sam's statements merely corroborated what
Wilkins, a member of the conspiracy well acquainted with
Mont, had already said. Since the statements of Wilkins
were admitted as statements of a co-conspirator in
furtherance of the conspiracy, it is unlikely that those of
Sam were significant factors in the jury’s decision. Our
——
” Guy Wilkins repeated this statement in an August 12, 1981 converse-
tion with Agent Baker.
2209
conclusion that the error, if any, was harmless is rein-
forced by the fact that the evidence of Mont’s guilt is
compelling, as noted above.”
C. Claims of Carson.
In addition to challenging the sufficiency of the evi-
dence supporting her conviction on the conspiracy count,
Carson argues that there is insufficient evidence to sustain
her conviction on a substantive charge. She also claims
error in the trial court's charge respecting the effect that a
finding of guilt on a substantive count should have on the
jury's consideration of the conspiracy count. Finding no
merit in these claims, we affirm Carson's convictions.
1. The Substantive Count.
Carson contends that there is insufficient evidence to
support her conviction on Count 15, which charged her
with possession with intent to distribute, and with distri-
bution of, heroin in a July 25, 1981 sale to Agents Baker,
Johnson and Williams. Ti:¢ question for us is whether
there was evidence from whch the jury could have found,
beyond a reasonable doubt, that Carson knowingly parti-
cipated in the sale. We conclude that the evidence was
sufficient and affirm jer conviction on Count 15.
On July 21, Wilkins had agreed to act as an interme-
diary in a heroin sale between the agents and Fred
Galloway. There was no mention of Carson, but four
days later, on July 25, when Wilkins arrived at the Flash
Inn to meet the agents as planned, he was accompanied
by Carson, whom he introduced as his “partner.” Ac-
knowledging the relationship, Carson confirmed the de-
tails of the partnership with Wilkins and discussed the
heroin business. The partners—Carson and Wilkins—
then drove with Agent Williams to the Close Encounters
Discotheque. Enroute, Carson engaged in a narcotics-re-
lated conversation from which there can be no doubt that
she was fully aware that the agents’ purpose in going to
the discotheque was to buy heroin from Galloway and
Wilkins. When they arrived at the discotheque, arrange-
ments were made for Gayburnetta Galloway to go some
place, pick up the heroin and return with it. During
Gayburnetta’s absence, a fight broke out among patrons.
Fearful that the police would arrive, Carson remarked to
Agent Johnson that Galloway, whom she had greeted
earlier, was stupid for allowing a fight to go on when he
was “taking care of business.”
Fully aware that delivery of the heroin was imminent
and that the police were likely to arrive on the scene
momentarily to deal with the fight, Carson went outside
with the agents and was later joined by Wilkins. When
Gayburnetta arrived, Wilkins said, “the dope’s here.
*s go inside,” and the group, including Carson, reen-
tered the discotheque. Gayburnetta brought the heroin to
an office in the discotheque. After conversing with Gallo-
way and receiving $42,000 cash from the agents, Wilkins
retrieved a paper bag from the office and handed it to
Agent Baker.
Agent Baker gave the bag to Agent Johnson, who left
to perform a field test on its contents. The test indicated
heroin, and Johnson returned to the discotheque. Having
earlier assured the agents that she could supply heroin if
2211
they wanted it, Carson gave Agent Johnson her telephone
number upon his request. She then warned Agent John-
son that police were in the discotheque, and the agents
left.
The jury could reasonably conclude from this evidence
that Carson knowingly participated in the July 25 heroin
transaction and assisted in its successful completion. In
particular, her fear of police intervention, her warnings to
Agent Johnson, and her participation in the outside
watch for Gayburnetta, permit the inference that Carson
acted as a lookout. As Wilkins’ “partner,” she had a clear
interest in the success of the transaction. The jury was
warranted in finding that her appearance with Wilkins at
the Flash Inn on the morning of July 25 was not as an
innocent companion but as a sophisticated partner in the
planned sale. Cf. United States v. Calabro, supra, 449
F.2d at 890. Her presence enabled her to observe and size
up the customers and assure them that they were dealing
with an established and reliable source of supply with a
view to promoting and successfully completing the pend-
ing, as well as future, heroin deals.” This conclusion is
supported by Carson's later refusal to deal with the
agents because they “asked too many questions” on the
night of the sale. This evidence, considered in light of the
circumstances, permitted the jury to conclude, beyond a
reasonable doubt, that Carson knowingly assisted in the
a __
sale, participated in it as something she wished to bring
about, had a stake in its success, and sought by her
actions to make it succeed. It was therefore reasonable
for the jury to conclude that she was an aider and abettor
in the sale. 18 U.S.C. § 2; United States v. Barton, 647
F.2d 224, 239 n.12 (2d Cir.), cert. denied, 454 U.S. 857,
102 S.Ct. 307, 70 L.Ed.2d 152 (1981); United States v.
Clemente, 640 F.2d 1069, 1078-79 (2d Cir.), cert. denied,
454 U.S. 820, 102 S.Ct. 102, 70 L.Ed.2d 91 (1981);
United States Vv. Bommarito, 524 F.2d 140, 145 (2d Cir.
1975); United States v. Pui KanLam, 483 F.2d 1202,
1207-08 (2d Cir. 1973), cert. denied, 415 U.S. 984, 94
S.Ct. 1578, 39 L.Ed.2d 881 (1974).
2. The Jury Charge.
During its deliberations, the jury sent @ note to the
court, stating: “The jury requests to know whether a
decision of guilt on @ substantive count automatically
denotes guilt on the count of conspiracy.” Answering the
note, Judge Brieant instructed: “The answer to your
question, in two words, is ‘absolutely not ’” Carson
argues that “[a}ithough the trial judge charged the jury
that conviction on Count 1 should not be ‘automatic’ if
they found Carson had committed the acts charged
against her in Count XV, as a practical matter, the jury's
verdict finding Carson guilty on Count XV virtually
automatically had te result in a guilty verdict as to Count
1 as well.” (Br. at 23.) This argument is frivolous.
Although Judge Brieant did charge that a finding of
guilt on a substantive charge could be considered by the
jury in evaluating the conspiracy count, he repeatedly
stressec that the elements of the crime were different, that
each count had to be considered separately, and that each
element of the crime had to be proven beyond a reason-
able doubt before a verdict of guilt could be rendered on
any count. Moreover, the court instructed the jury to
decide each count of the indictment separately as to each
defendant who was named in the count.
In view of the foregoing, Carson's conviction on the
conspiracy count is also affirmed.
D. Claims of Kenneth Thomas.
Challenging his conviction on the conspiracy count,
Thomas raises four issues on appeal in addition to his
claim that the evidence was insufficient. He argues that
the district court erred in denying his motion for a
severance, in refusing to instruct the jury that the charge
on aiding and abetting was not applicable to the con-
spiracy count, and in erroneously admitting into evidence
contraband found in his possession at the time of his
arrest, along with the agents’ testimony that Thomas had
engaged on numerous occasions in what appeared to be
drug transactions. We find these claims to be without
merit and affirm Thomas’ conviction on the conspiracy
count.
1. Severance.
Thomas’ claim that the district court erred in denying
his motion for a severance is based on two arguments.
First, he asserts that the disproportionate charges and
proof against him, as compared to his co-defendants,
caused substantial prejudice. Second, he contends that
the jury convicted him on the basis of guilt by association
because there was substantial proof that the heroin con-
spiracy was a family business in which his brother, How-
2214
me Pe
! sy . y : }
a lt A lc PS gh kde lla IO 5 ni Sith ath ia San iS
ard Thomas, was culpably involved.” Thus, in essence,
Thomas argues that he was unfairly prejudiced by the
introduction of evidence concerning his co-defendants,
which spilled over into the jury's consideration of the case
against him. We disagree.
In United States v. Losada, supra, we recently noted
the “heavy burden of persuasion” that an appellant bears
in urging reversal o? a trial court’s decision not to grant @
severance. 674 F.2d at 171. “[T]}he decision to grant or
deny a severance pursuant to Rule 14 is within the broad
discretion of the trial court and will not be overturned on
appeal absent some showing that the defendant suffered
substantial prejudice due to the joint trial.” /d. (quoting
United States v. Weisman, 624 F.2d 1118, 1129-30 (2d
Cir.), cert. denied, 449 U.S. 871, 101 S.Ct. 209, 66
L.Ed.2d 91 (1980)). That the defendant would have had a
better chance of acquittal at a separate trial does not
constitute substantial prejudice. United States v. Soto-
mayor, $92 F.2d 1219, 1228 (2d Cir.), cert. denied sub
nom. Crespo v. United States, 442 U.S. 919, 99 S.Ct.
2842, 61 L.Ed.2d 286 (1979); United States v. Stirling,
$71 F.2d 708, 733 (2d Cir.), cert. denied, 439 U.S. 824, 99
S.Ct. 93, 58 L.Ed.2d 116 (1978). Moreover, in determin-
ing whether a trial court’s decision was correct, “a re-
viewing court should consider the need for judicial
economy and the extent to which the judge instructed the
jury to consider the evidence separately with respect to
2 In addition to the fact that numsrous defendants were related, there
was other evidence indicating that the conspiracy was a “family
business.” Thus, during # heroin sale to the agents on June 24, 1980,
each defendant.” United States v. Losada, supra, 674
F.2d at 171.
There is no question that Thomas played a less promi-
nent role in the conspiracy than many of his co-defen-
dants. However, differing levels of culpability and proof
are inevitable in any multi-defendant trial and, standing
alone, are insufficient grounds for separate trials. United
States v. Aloi, 511 F.2d $85, 598 (2d Cir.), cert. denied,
423 U.S. 1015, 96 S.Ct. 447, 46 L.Ed.2d 386 (1975).
Moreover, the fact that evidence may be admissible
against one defendant but not another does not necessar
ily require a severance. United States v. Losada, supra,
674 F.2d at 171; United States v. Lyles, $93 F.2d 182, 190
(2d Cir.), cert. denied, 440 U.S. 972, 99 S.Ct. 1537, 59
L.Ed.2d 789 (1979); United States v. Aloi, supra, 511
F.2d at $98. Here, the trial court instructed the jury on
numerous occasions to accord each defendant separate
consideration. United States v. Losada, supra, 674 F.2d at
171-72; United States v. Weisman, supra, 624 F.2d at
1130. The evidence against Thomas was simple enough
for the jury to consider without significant spillover
effect. United States v. Losada, supra, 674 F.2d at 171;
United States v. Barton, supra, 647 F.2d at 241; United
States v. Weisman, supra, 624 F.2d at 1130. That the jury
did so appears from the verdicts, as noted above. United
States v. Weisman, supra, 624 F.2d at 1130; United States
vy. Barnes, supra, 604 F.2d at 161. Thus, the disparity in
the proof and charges did not unfairly prejudice Thomas.
Nor does it appear that the jury was unable to distin-
guish among family members in finding guilt or inno-
cence. Gayburnetta Galloway was acquitted even though
her father, who pled guilty prior to trial, testified to his
criminal involvement. In any event, proof of Howard
Thomas’ heroin-related activities would have been admis-
2216
:
sible against Thomas in a separate trial to establish the
existence of the conspiracy. See, United States v. Praeto-
rius, 622 F.2d 1054, 1063 (2d Cir. 1979), cert. denied sub
nom. Lebel v. United States, 449 U.S. 880, 101 S.Ct. 162,
66 L.Ed.2d 76 (1980). Consequently, the joint trial did
not result in substantial prejudice to Thomas.
2. The Court’s Instructions on Aiding and Abetting.
The trial judge charged that anyone who “aids, abets,
counsels, commands, induces or procures” the commis-
sion of a federal offense is punishable as a principal. This
instruction was repeated in response to a note from the
jury asking for clarification of the meaning of “intent” as
stated in the indictment. Thomas argues that this charge
on aiding and abetting was unfairly prejudicial because it
permitted the jury to convict him as an aider and abettor
while finding iasufficient evidence of his knowing mem-
bership in the conspiracy. This claim is also without merit.
In its main charge, the court had consistently discussed
the conspiracy and substantive counts separately, and
clearly specified and defined each of the elements of the
conspiracy charge, including knowing participation. Be-
fore defining “aiding and abetting,” the court instructed
at the outset that the concept could be considered in
connection with the counts then under discussion, /.é.,
the substantive counts. Previously, the court had cau-
tioned that Thomas was charged only with conspiracy
and not with any subs*antive crimes. The court construed
the jury’s note as @ request for clarification of the
meaning of “intent” as relating to the phrase “possession
with intent to distribute,” and concluded its response to
the note as follows:
A person possesses with intent to distribute if she
aids or abets some other person in selling or possess-
2217
-
iy
ing with intent to distribute or distributing heroin,
and does so knowingly and wilfully.
I instruct you that you may find intent from consid-
ering all of the evidence in the case. However, spe-
cific criminal intent must be proved beyond a
reasonable doubt before a person may be convicted
of any of these substantive crimes in this indictment
with respect to possession or intent to distribute.
(Emphasis added.)
Counsel for Thomas did not object to this charge. Nor
did he request that the court distinguish between substan-
tive crimes and the conspiracy charge at this point.
Objection came to the court’s response to a later note
from the jury requesting assistance regarding the liability
of a defendant for acts committed by a co-conspirator.
The court responded by instructing that:
In deciding the substantive count you decide whether
the person whose case you are then considering in the
substantive count knowingly and wilfully either com-
mitted all the elements or knowingly and wilfully
aided and abetted someone else to do the crime. An
aider and abettor is accountable for the criminal acts
of the principal. That | did tell you. But a member of
the conspiracy is not on the theory of this case
accountable for a substantive crime committed by a
member of the conspiracy, by another member, in
furtherance of it. (Emphasis added.)
Counsel for Thomas then requested the court to instruct
that the charge on aiding and abetting was not applicable
to the conspiracy count, and the court refused.
The court’s charges on aiding and abetting, whether
viewed separately of, as they should be in the context of
2218
the entire charge, United States v. Scacchetti, 668 F.2d
643, 649 (2d Cir. 1982), were correct. In short, there is
little likelihood that the jury was misled into believing
that one who was not shown to be a knowing member of
the conspiracy could be convicted as a member on a
theory of aiding and abetting. The jury’s lack of confu-
sion is evidenced by its acquittal of Galloway on the
conspiracy count while failing to reach a verdict on the
substantive count. See, United States v. Sanzo, 673 F.2d
64, 69 (2d Cir. 1982).
3. Admissibility of the Seized Contraband.
When Thomas was searched incident to his arrest, two
vials containing traces of heroin and cocaine and several
cellophane envelopes were found in his possession, and
these items were received in evidence at trial.” Thomas
argues that the admission of the contraband was so
prejudicial that it should have been excluded because it
was proof of similar uncharged crimes and that the period
of one week between the filing of the indictment (October
13, 1981) and his arrest (October 20, 1981) was too
lengthy to permit an inference of his participation in the
conspiracy.
As we have often observed, the trial judge has broad
discretion in ruling on the admissibility of relevant evi-
dence: “the preferable rule is to uphold the trial judge’s
exercise of discretion unless he acts arbitrarily or irra-
tionally.” United States v. Robinson, $60 F.2d 507, 515
(2d Cir. 1977) (en banc), cert. denied, 435 U.S. 905, 98
S.Ct. 1451, 55 L.Ed.2d 496 (1978). There has been no
showing that the trial judge was either arbitrary or irra-
v After Judge Brieant ruled that the heroin was admissible, counsel
for Thomas insisted that the cocaine be admitted as well.
2219
tional in balancing the probative value of this evidence
against its prejudicial effect. Quite the contrary. Even if
we assume that the contraband proved similar uncharged
crimes, glassine envelopes and vials containing narcotics
are tools of the drug trade, and evidence of possession of
them at a closely related time is relevant to the conspiracy
charge and not a mere showing of bad character, even if
they relate to transactions outside the scope of the con-
spiracy. See, e.g., United States v. Barnes, supra, 604 F.2d
at 166-67; United States v. Viserto, 596 F.2d 531, 537-38
(2d Cir.), cert. denied, 444 U.S. 841, 100 S.Ct. 80, 62
L.Ed.2d $2 (1979).
Standing alone, the one-week lapse of time between the
filing of the indictment and seizure of the contraband was
not so lengthy as to render the evidence too remote from
the crime to preclude an inference that Thomas partici-
pated in the conspiracy, even if Thomas’ source, his
brother Howard, was arrested on October 4, 1981, sixteen
days before the seizure. See, United States v. Taylor,
supra, 562 F.2d at 1358; United States v. Bermudez, 526
F.2d 89, 95-96 (2d Cir. 1975), cert. denied, 425 U.S. 970,
96 S.Ct. 2166, 48 L.Ed.2d 793 (1976); United States v.
Tramunti, supra, $13 F.2d at 1115-16; United States v.
Mallah, $03 F.2d 971, 981 (2d Cir. 1974), cert. denied, 420
U.S. 995, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1975).
4. Testimony Regarding Street-Corner Transactions.
Thomas argues that the district court erred in allowing
Agents Johnson and West to testify concerning their
observations of Thomas engaging in what appeared to
them to be narcotics transactions. First, he claims that the
testimony did not relate sufficiently to the conspiracy
charged and, thus, constituted inadmissible proof of
other crimes under Fed.R.Evid. 404(b). In addition,
2220
Thomas contends that the agents should not have been
permitted to testify as to their opinions regarding the
nature of Thomas’ activities. We find no error in the trial
judge's ruling on these evidentiary points.
Johnson and West made their observations during the
course of their undercover activities. Each agent testified
that he observed Thomas covertly passing something to
people on the street in exchange for cash. During John-
son's testimony, counsel for Thomas objected to John-
son’s conclusion that these exchanges appeared to him to
be drug transactions. Counsel did not object or contend
that Johnson's description consitituted proof of other
crimes. Nor did he move to strike it on that basis.
Moreover, counsel did not object at all to West's testi-
mony concerning his observations and conclusions.
Having failed to object to this testimony on the ground
now urged, Thomas waived an objection that the testi-
mony constituted inadmissible evidence of other crimes.
See, United States v. Hutcher, 622 F.2d 1083, 1087 (2d
Cir.), cert. denied, 449 U.S, 875, 101 S.Ct. 218, 66
L.Ed.2d 96 (1980). Moreover, as we have said earlier,
evidence of Thomas’ apparent drug-related activities was
relevant to the conspiracy charge, even if it proved other
crimes. See, United States v. Barnes, supra, 604 F.2d at
166; United States v. Viserto, supra, $96 F.2d at 536,
§37-38. Thus, the trial court did not abuse its discretion in
failing to strike the testimony. The admissibility of this
evidence was not dependent on direct proof that the drugs
sold by Thomas were of conspiracy origin. As we noted in
Viserto, supra, “(narcotics is ® business, though an
illegitimate one, and evidence that the defendants were in
the business at a closely related time is relevant, and is not
a mere showing of bad character.” 596 F.2d at §37-38.
Thomas also contends that the furtive exchanges may
2221
have related to other illicit activity, but this effects the
weight of the proof and not its admissibility.
Nor was it error for the court to permit the agents to
testify that Thomas’ furtive activity appeared to them to
be sales of narcotics. Under Fed.R.Evid. 702, expert
testimony is admissible if it “will assist the trier of fact to
understand the evidence or to determine a fact in issue.”
The subject of the expert testimony here, i.e., the clandes-
tine manner in which drugs are bought and sold, is
unlikely to be within the knowledge of the average lay-
man. United States v. Johnson, $75 F.2d 1347, 1361 (Sth
Cir. 1978), cert. denied, 440 U.S. 907, 99 S.Ct. 1214, 59
L.Ed.2d 454 (1979). The conclusions of the agents were
based on years of experience investigating narcotics of-
fenses.“ This provided them with specialized knowledge,
not possessed by the jury, of the manner in which drug
transactions are conducted. Thus, under Rule 702, it was
proper for the agents to recount their observations and
render an opinion based on them. See, ¢.g., United States
v. Borrone-Iglar, 468 F.2d 419, 421 (2d Cir. 1972), cert.
denied sub nom. Gernie v. United States, 410 U.S. 927,
93 S.Ct. 1360, 35 L.Ed.2d 588 (1973) (expert opinion of
DEA agent that coded conversations involved narcotics
transaction admissible); see also, United States v. Mar
tino, 664 F.2d 860, 864 n.3 (2d Cir. 1981); United States v.
Cirillo, 499 F.2d 872, 881 (2d Cir.), cert. denied, 419 U.S.
1056, 95 S.Ct. 638, 42 L.Ed.2d 653 (1974). “[T)he trial
judge has broad discretion in the matter of the admission
or exclusion of expert evidence, and his action is to be
sustained unless manifestly erroneous.” 3 J. Weinstein &
u Agents Johnson and West together served for twenty years, &
officers of the narcotics of the Washington, D.C. police
department.
branch
2222
M. Berger, Weinstein’s Evidence 44 702(02]; McGrego-
Doniger, Inc. v. Drizzle Inc., 599 F.2d 1126, 1138 n.7 (2d
Cir. 1979); Fernandez v. Chios Shipping Co., 542 F.2d
145, 153 (2d Cir. 1976). Again, there is no indication that
the trial court's ruling constituted an abuse of discretion.
CONCLUSION
Finding the judgments of conviction entered below to
be supported by substantial evidence, and finding no
reversible error, we affirm the convictions of all appel-
lants on all counts.
wo. BO-66696 [RECEIVED
TA H1963—
OFFICE OF THE CLERK
IN THE SUPREME COURT. us |
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM,
UNITED STATES OF AMERICA,
Petitioner,
—
-~vVv."
Respondent.
APPLICATION FOR LEAVE TO PROCEED
IN FORMA PAUPERIS
TO THE HONORABLE, THE CHIEF JUSTICE OF THE UNITED STATES
AND THE ASSOCIATE JUSTICES OF THE UNITED STATES SUPREME COURT.
Petitioner, Kenneth Thomas respectfully seeks
leave to proceed here in forma pauperis, without payment of
filing fees ané costs.
Counsel certifies that, in proceedings before the lower
court in this case, petitioner was represented by counsel
assigned pursuant to the Criminal Justice Act.
New York, New York =
CHAEL YOUNG, °
90 Broad Street
New York, New York, 10004
212-509-5474
Attorney for Petitioner
ee a -
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