Petition — Guippone v. United States

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Office - Supreme Court, U.S.

83-1684 FILED

AUG 1983

No. A-1018. ALEXANDER L STEVAS.

Lo oi

In the

Supreme Court of the United States.

OctToser Term, 1983.

ROBERT ANGELO CUIPPONE anp

ANTHONY MICHAEL PORCELLI,

PETITIONERS,

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the United States Court

of Appeals for the Second Circuit.

Martin G. WEINBERG,

LitcuiaAN A. WILMORE,

Orern!, Weinserc & Lawson,

75 Blossom Court,

Boston, Massachusetts 02114.

(617) 227-3700

BATEMAN & SLADE, INC. BOSTON . MASSACHUSETTS

Table of Contents.

Proceedings below

Jurisdiction

Introduction

Questions presented

Constitutional and statutory provisions involved

Statement of the case

A. The district court repeatedly denied petitioners’

request that their expert be allowed access to the

original tape recordings for independent analysis

B. The burden of proof to present plausible evidence

indicating an alteration or distortion of the tape

recorded evidence was placed on the defendants as

a condition precedent to their being allowed the

opportunity to examine the original tape recordings

C. The Court of Appeals’ findings of fact on the cri-

tical issue of access to the original tape recordings

and the absence of plausible evidence indicating

tampering with the tapes are clearly erroneous and

without support in the record

Reasons for granting the writ

I. Where a conviction rests on tape recordings of a

defendant’s communications and access to the or-

iginal tape recordings is requested by defendants

and denied by the trial court, Fifth Amendment

principles of due process are violated

A. The imposition of a burden on the defendants

to present plausible evidence indicating an alter-

ation or distortion of tape recordeu evidence as

a condition precedent to their being allowed the

opportunity to examine the original tape record-

ings violated due process

ou £. WN DH

ii TABLE OF CONTENTS.

B. The conflict between the Second Circuit and

the First, Third, Fifth and Seventh Circuits over

the issue of whether a defendant must present

plausible evidence of alteration or distortion of

tape recordings prior to being granted access to

the originals of such tapes requires authoritative

resolution by this court

II. Fifth Amendment principles of due process and

this court’s powers of supervision require relief

when the Court of Appeals based its decision deny-

ing petitioners’ constitutionally-based contention

relating to their expert’s being denied access to the

original tapes of their intercepted communications

on appellate fact-finding devoid of evidentiary sup-

port

III. The district court’s denial of expert access to the

original tape recordings violated defendants’ right

to confront the government’s witnesses on the issue

of the authenticity of the tapes, by depriving them

of the opportunity to rebut, and constraining them

to stand mute rather than attack the integrity of the

tapes when they were offered as proof

Conclusion

Appendix

Notice of judgment entered in the United States Court

of Appeals for the Second Circuit, affirming con-

victions of petitioners, dated February 22, 1983

Opinion of the United States Court of Appeals for the

Second Circuit, dated February 18, 1983

Order of the Uniied States Court of Appeals for the

Second Circuit, denying Petition for Rehearing,

dated May 2, 1983

TABLE OF AUTHORITIES CITED. iii

Order of United States Supreme Court (Marshall, J.)

extending time to file petition for writ of certiorari

to and including July 31, 1983 Sa

Table of Authorities Cited.

CASEs.

Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975) 13

Bowen v. Eyman, 324 F. Supp. 339 (D. Ariz. 1970) 14

Dennis v. United States, 384 U.S. 855 (1966) 3, 21

Garner v. Louisiana, 368 U.S. 157 (1961) 18

Henry v. Mississippi, 379 U.S. 443 (1965) 18,19

Jacobellis v. Ohio, 378 U.S. 184 (1964) 18

Lopez v. United States, 573 U.S. 427 (1963) 21

Simmons v. United States, 390 U.S. 377 (1969) i)

Spano v. New York, 360 U.S. 315 (1959) 18

Thompson v. City of Louisville, 362 U.S. 199 (1960) 18

United States v. Biggins, 551 F.2d 64 (5th Cir. 1977) 16

United States v. Bright, 630 F.2d 804 (5th Cir. 1980) 17

United States v. Chiarizio, 525 F.2d 289 (2d Cir. 1975) 14

United States v. Clinger, 681 F.2d 221 (4th Cir. 1982),

cert. denied, 103 S.Ct. 221 17n

United States v. Cortellesso, 663 F.2d 361 (lst Cir.

1981) 14, 16

United States v. Craig, 573 F.2d 455 (7th Cir. 1977) 16

United States v. Diadone, 558 F.2d 775 (Sth Cir. 1977) 17n

United States v. Diana, 605 F.2d 1307 (4th Cir. 1979),

cert. denied, 444 U.S. 1102 (1980) 17n

iv TABLE OF AUTHORITIES CITED.

United States v. DiMuro, 540 F.2d 503 (1st Cir. 1976) 15

United States v. Durant, 545 F.2d 823 (2d Cir. 1976) 13

United States v. Falcone, 505 F.2d 478 (3d Cir. 1974),

cert. denied, 420 U.S. 955 (1975) 17n

United States v. Fuentes, 563 F.2d 527 (2d Cir. 1977),

cert. denied, 434 U.S. 950 (1977) 12, 14, 15,

16, 17n, 20

United States v. Gaultney, 606 F.2d 540 (5th Cir. 1979),

rev'd on other grounds, 451 U.S. 204 (1981) 14,19

United States v. Gigante, 538 F.2d 502 (2d Cir. 1976) l7n

United States v. Johnson, 696 F.2d 115 (D.C. Cir. 1982) 17n

United States v. Knohl, 379 F.2d 427 (2d Cir. 1967),

cert. denied, 389 U.S. 973 (1967) 16

United States v. Lawson, 545 F.2d 557 (7th Cir. 1975) 17n

United States v. Starks, 515 F.2d 112 (3d Cir. 1975) 16

United States v. Williams, 613 F.2d 560 (5th Cir. 1980) 19

White v. Maggio, 556 F.2d 1352 (5th Cir. 1977) 14

CONSTITUTIONAL AND STATUTORY PROVISIONS

AND FEDERAL RULES.

United States Constitution

Fifth Amendment 4,5, 13, 18

Sixth Amendment 3, 5, 20

Federal Rule of Criminal Procedure 16(a)(1)(A) 6,15

Federal Rule of Criminal Procedure 16(a)(1)(C) 6,15

18 U.S.C. Section 2518(8) (a) 17

21 U.S.C. Section 851 2n

28 U.S.C. Section 1254(1) 2

TABLE OF AUTHORITIES CITED. Vv

Title III of the Omnibus Crime Control and Safe Streets

Act 17

LEGISLATIVE MATERIALS.

2 United States Code Congressional & Administrative

News, Senate Report 1097, 90th Congress, 2d Session

(1968) 18

MISCELLANEOUS.

Weiss, M. and Hecker, M., “The Authentication of

Magnetic Tapes: Current Problems and Possible

Solutions,” Report of the National Commission for

the Review of Federal and State Laws Relating to

Wire Tapping and Electronic Surveillance (1976) 3n

No. A-1018.

In the

Supreme Court of the United States.

Octoser TERM, 1983.

ROBERT ANGELO GUIPPONE anp

ANTHONY MICHAEL PORCELLI,

PETITIONERS,

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the United States Court

of Appeals for the Second Circuit.

Robert Angelo Guippone and Anthony Michael Porcelli

petition for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Second Circuit entered

in this case on February 22, 1983 and May 2, 1983.

Proceedings Below'

Following a jury trial in the United States District Court for

the Southern District of New York (Owen, J.), both petitioners

were convicted on two counts: conspiracy to possess heroin

and cocaine with intent to distribute (Count 1), and possession

with intent to distribute and distribution of three-quarters of a

kilogram of cocaine (Count 7). In addition, petitioner Porcelli

was also convicted of possession with intent to distribute and

distribution of one-eighth of a kilogram of heroin (Count 9).

Both petitioners were sentenced to a term of thirty years im-

prisonment for each count,* to be served concurrently.? On

February 22, 1983, the United States Court of Appeals for the

Second Circuit affirmed their convictions on all counts. The

court’s opinion is reported at 702 F.2d 299 (2d Cir. 1983) and

is reproduced in the appendix at 2a-52a. A timely petition for

rehearing was denied on May 2, 1983 (53a-54a infra). The

time for filing a petition for writ of certiorari was extended tc

and including July 31, 1983 (55a, infra).

Jurisdiction.

The jurisdiction of this Honorable Court is invoked pursu-

ant to 28 U.S.C. § 1254(1).

' The parties to the proceeding in the court whose judgment is sought to be

reviewed were Willard Williams, Saint Julian Harrison, Clarence Haynes,

Onzelo Markum, Eric Nalven, Willie Terry, Paul Jenkins and petitioners

Robert Angelo Guippone and Anthony Michael Porcelli. Supreme Court

Rule 21.1(b).

*Each was sentenced pursuant to 21 U.S.C. § 851.

*In addition, each was sentenced to a life-time special parole and to fines

of $50,000 for each count.

Introduction.

Petitioners Robert Guippone and Anthony Porcelli respect-

fully present this Honorable Court with three issues of pro-

found significance in the highly-charged area of invasion of

privacy by resort to advanced electronic technology. They

seek the wisdom of this Court in the definition and application

of standards for testing the authenticity and accuracy of evi-

dence obtained through the bugging of their conversations. In

particular, petitioners claim that their right of access to the

originals of the tape recordings used against them for purposes

of independent expert analysis was requested and wrongfully

denied.

The Sixth Amendment right to confront the evidence is at

the heart of the American system of justice. “In our adversary

system for determining guilt or innocence, it is rarely justifi-

able for the prosecution to have exclusive access to a storehouse

of relevant fact.” Dennis v. United States, 384 U.S. 855, 875

(1966). The authentication of magnetic tapes for legal pur-

poses‘ is not a task for “untrained ears,” nor can it be confined

to the storehouse of the government where said tapes are the

sole device by which alleged crimes are proved and precious

liberty is lost.

Because of the increasing resort to electronic surveillance in

federal and state law enforcement, and because of the express

intent of Congress that such evidence be received in pure form

and that its integrity be preserved as such, it is essential that

this Court clarify the questions arising in this case where the

defendants Guippone and Porcelli clearly raised a colorable

claim that the evidence against them was tampered with. The

‘See Weiss, M. and Hecker, M., “The Authentication of Magnetic Tapes:

Current Problems and Possible Solutions,” Report of the National Com-

mission for the Review of Federal and State Laws Relating to Wire Tapping

and Electronic Surveillance (1976); especially see pp. 219, 222-224.

trial court wrongfully placed on them the burden of proving

such tampering, then calculated the weight of the burden far-

beyond any reasonable probability standard, and finally,

withheld access to the original tapes so that the burden could

not be met. Fundamental fairness and due process require the

guidance and supervision of this Court for the benefit of all

citizens.

Questions Presented.

I. Do Fifth Amendment principles of Due Process permit a

conviction to rest on tape recordings of defendants’ communi-

cations when access to the original tape recordings is requested

by the defendants and denied by the trial court?

A. Did the imposition of a burden on the defendants

to present plausible evidence indicating an alteration or

distortion of tape recorded evidence as a condition prece-

dent to their being allowed the opportunity for their ex-

pert to examine the original tape recordings violate Due

Process?

B. Does the conflict between the Second Circuit, on

one hand, and the First, Third, Fifth and Seventh Cir-

cuits, on the other hand, over the issue of whether a de-

fendant must present plausible evidence of alteration or

distortion of tape recordings prior to being granted access

to the originals of such tapes require authoritative resolu-

tion by this Court?

C. Did the Court of Appeals’ sanctioning of the bur-

den imposed upon the defendants by the trial court,

which included requiring the defendants to provide

sworn evidence as to the specific conversations that were

omitted from the tape recordings deviate so far from all

other decisions as to mandate this Court’s deciding proper

standards governing a defendant's access to evidence pos-

sessed by the government?

II. Do Fifth Amendment principles of Due Process and this

Court’s powers of supervision require relief when the Court of

Appeals based its decision denying petitioners’ constitutional-

ly-based contention relating to their expert not being provided

with access to the original tapes of their intercepted com-

munications on appellate fact-findings devoid of evidentiary

support?

III. Did the district court’s denial of expert access to the

original tape recordings violate defendants’ right to confront

the government’s witnesses on the issue of the authenticity of

the tapes, by depriving them of any opportunity to rebut and

constraining them to stand mute rather than attack the integ-

rity of the tapes when they were offered as proof?

Constitutional and Statutory Provisions Involved.

The Fifth Amendment to the United States Constitution

provides in pertinent part:

No person shall . . . be deprived of life, liberty, or prop-

erty, withoud due process of law... .

The Sixth Amendment to the United States Constitution

provides in pertinent part:

In all criminal prosecutions, the accused shall enjoy the

right .. . to be confronted with the witnesses against

Federal Rule of Criminal Procedure 16(a)(1)(A) provides,

in pertinent part:

Upon re juest of a defendant the government shall permit

the defendant to inspect and copy or photograph any rel-

evant written or recorded statements made by the de-

fendant... .

Federal Rule of Criminal Procedure 16 (a)(1)(C) provides,

in pertinent part:

Upon request of the defendant the government shall per-

mit the defendant to inspect and copy or photograph

books, papers, documents, photographs, tangible objects

. which are within the possession, custody or control

of the government, and which are material to the prep-

aration of his defense or are intended for use by the gov-

ernment as evidence in chief at the trial, or were obtained

from or belong to the defendant.

Statement of the Case.

A. The District Court Repeatedly Denied Petitioners’ Re-

quest that Their Expert be Allowed Access to the Original

Tape Recordings for Independent Analysis.

On February 18, 1981, an order was issued by the United

States District Court for the Southern District of New York

(Ward, J.) authorizing the interception of oral communica-

tions from the first floor of a duplex at East 89th Street, New

York for up to thirty days. That apartment was the private

residence of Willard Williams (Appellate Appendix 318, here-

after “AA.”). A second order authorizing identical intercep-

tion of oral communications was issued by Judge Ward on

April 2, for an additional thirty days. Video surveillance,

searches of Williams’ garbage, searches of residences and safe

deposit boxes, and physical surveillances were also employed

‘

during this investigation into federal narcotics violations

(AA. 178).

Robert Guippone and Anthony Porcelli were indicted along

with seventeen others in a 25 count indictment on July 31, 1981

(AA. 43). Their defense to the charges against them was that

their relationship with Willard Williams was based on policy

gambling, i.e., numbers, and that they were not involved in

Williams’ drug trafficking schemes and that the tape-recorded

conversations between Williams and themselves would provide

categorical evidence in support of this defense. The entirety of

the evidence from which the government urged conviction on

the substantive counts and the indispensable evidence underly-

ing the conspiracy charge was contained in intercepted conver-

sations between them and Williams in Williams’ apartment.

Guippone and Porcelli contended that the tapes were flawed

by material deletions which distorted the content and import of

their conversations with Williams.° They made repeated at-

tempts to obtain an order from Judge Owen requiring the

government to make the critical original tape recordings

available to them for independent expert analysis (AA.

401-402). The trial court repeatedly ruled that the only basis

upon’ ‘iich the tapes could be subjected to an evaluation would

be if a defendant submitted an affidavit asserting that his words

had actually been changed or if some words had been added

(AA. 402). Since defendants’ claim was that words had been

removed, rather than changed or added, the court would not

permit expert access to the original tape recordings for testing.

During the pre-trial phase, defendants submitted to the

court the affidavit of Arnold Goldberger, an electronic com-

*The prosecution’s own expert on gambling, Officer Murray, conceded

that contrary to the government's transcript, he heard gambling-related con-

versations on two tapes (AA. 1247-1248; Trial Tr. 3388-3389). Other evi-

dence of ¢ relationship based on gambling was adduced (AA. 1459-1460,

calculations consistent with numbers, not drugs).

munications expert, who stated that he had “listened to and

preliminarily examined” certain copies or three tape record-

ings of defendants’ intercepted communications with Williams

and found “[s]ignificant aberrations, which seriously call[ed]

into question the authenticity of these recordings ... and

warrant([ed] further examination and analysis” (AA. 392-393).

A second affidavit of Mr. Goldberg submitted by defendants

to the court stated that in addition to “certain interruptions in

the conversations, . . . [t]he high probability of alteration [of

two particular tapes] has been confirmed by other objective

findings made by me from an analysis of the copies. . . for ex-

ample variations in signal to noise ratio.” He further stated

that examination of the originals would permit him to “render

an opinion (as to authenticity) within a reasonable degree of

scientific certainty.” Both affidavits asserted that “the integri-

ty of the recordings and equipment can be safeguarded since

the aforesaid examination may be made by a government des-

ignated expert in my presence (emphasis added) (AA. 392-397).

Neither request for the originals even hinted at a wish to

remove the tapes from the government’s custody.

B. The Burden of Proof to Present Plausible Evidence Indi-

cating an Alteration or Distortion of the Tape Recorded

Evidence was Placed on the Defendants as a Condition

Precedent to Their Being Allowed the Opportunity to

Examine the Original Tape Recordings.

Judge Owen found these two submissions insufficient, rul-

ing that nothing would suffice but a sworn statement from a

party to the recordings that he did not say what the recording

in its present state reflected (AA. 403-406). Thereafter, the

defendants presented a written motion (AA. 387) seeking

(a) an independent analysis of the critical tapes without the

requirement of further affidavits, and alternatively, without

waiver of their assertion of their right to the examination,

)

(b) either use immunity if the affidavits as described by the

court were still required, or, in the alternative, (c) a ruling

that such affidavits would be covered by Simmons v. United

States, 390 U.S. 377 (1969). The motion was accompanied by

a third affidavit of Mr. Goldberger, stating that “similar aber-

rations found by me in [the tapes referred to in the second

affidavit] were also found in [six additional tapes]. The varia-

tions in noise characteristics in all of the aforesaid tapes under-

lie the need for an examination by me of the original tape

recordings” (AA. 396-397).

In a memorandum opinion, Judge Owen then withheld rul-

ing on defendants’ motion, but found “the affidavit or affi-

davits from participants in conversations setting forth with

specificity the alterations claimed to have been made... . shall

be subject to the protection of [Simmons]” (AA. 388). There-

after, both defendants filed sworn affidavits wherein they set

forth that:

each had communications in the Williams apartment

with Willard Williams regarding, among other subjects,

the general subject of gambling, and the particular sub-

jects of the amounts of money owed by Williams to us as

a result of his participation as our agent in numbers, i.e.,

policy gambling in New York during the Winter and

Spring of 1981.

(3) That each have listened to all the tape recordings pro-

vided to our counsel and in particular to all those conver-

sations listed in our motion regarding which the Govern-

ment alleges we participated and they do not include con-

versations, or parts thereof which we particularly recall

having with Williams during the above-stated time

period at the above-stated location regarding the above-

stated subjects.

(4) More particularly, the conversations contained in Reel

# 199 omits Porcelli telling Williams that he was coming

to his residence to collect money possessed by Williams as

a result of the numbers operation and the conversation

contained in Reel # 166 omits the beginning of the con-

versation, i.e., it obviously starts in the middle (the exact

words preceding the recorded part of the conversation

cannot be recalled definitively but were other than the

first words on the tape; and also omits specific conversa-

tion regarding numbers and the collection of money from

numbers activity which followed the recorded words ‘hit-

ting these . . . numbers like. . .’.

(AA. 398-399.)

The trial court denied defendant’s motion, stating that “the

fact that gambling conversations may have been omitted is not

a showing that there may have been tampering with the tapes

as to conversations alleged [illegible word] with narcotics”

(AA. 398).

At trial, defendants objected to the introduction of the tapes

because of the pretrial denial of independent analysis and ac-

cess to the original tapes, and denial of access to an expert

evaluation (AA. 872-873, 883). After hearing the tapes, how-

ever, the trial court once again denied an application for an in-

dependent evaluation, declaring “I haven’t heard anything so

far that to my untrained ear... would suggest these tapes

were in the slightest altered” (AA. 960). Repeated reassertions

of the defendants’ need for independent analysis (AA. 959-960,

963-964, 1251, 1393) were all denied (AA. 964, 1251, 1191).

Although the prosecutor at one point asserted that “Rule 16(a)

(1) (c) evidence was available,” he did not contest Guippone’s

counsel’s statement that he had not been provided with access

to the original tapes (Pre-trial Hearing Tr. 1068). The prose-

cutor represented to the court only that cassettes of copies of

the originals were available (Pre-trial Hearing Tr. 853).

Trial counsel repeatedly referred in their motions for inde-

pendent analysis and in their authenticity objections to their

belief that omissions of exculpatory gambling terms distorted

the substance and import of defendant’s conversations with

Williams: “[in] some of the tape recordings where there ap-

peared to be some unexplainable gaps... . We have a ques-

tion as to authenticity.” (Trial Tr. 843-844.) “We are arguing

omissions. . . .” (AA. 1251.) “Omissions come within the am-

bit of alteration.” (AA. 1251.) “Alterations of tapes take many

forms.” (AA. 963.)

Both of petitioners’ counsel objected to the offer of the tapes

at trial, arguing that the comparison by the government of the

originals and the enhanced copies was not susceptible to con-

frontation because of the denial of access by defendants or

their counsel to the originals (AA. 882-883). Other objections

to the tapes were made on grounds of probable alteration, lack

of independent analysis, and denial of discovery (AA. 886-888;

Trial Tr. 862). The trial court was fully aware of and rejected

with finality the “repeated requests [of defendants] to look at

the Court originals” (AA. 959-964).

C. The Court of Appeals’ Findings of Fact on the Critical

Issue of Access to the Original Tape Recordings and the

Absence of Plausible Evidence Indicating Tampering

with the Tapes are Clearly Erroneous and Without Sup-

port in the Record.

The Second Circuit, in its opinion (702 F.2d 312-313,

32a-33a, infra) found that the prosecution had:

made the original tapes available to appellants and their

experts for analysis in his office. However, appellants de-

clined this offer, seeking instead to analyze the original

tapes outside the government's custody but with a gov-

ernment agent present. In the absence of any plausible

evidence indicating an alteration or distortion of what

was recorded on the tapes and in light of the trial court's

finding of authenticity and accuracy, the request to

remove this fragile evidence from the government's cus-

tody was unwarranted.

In their petition for rehearing, Guippone and Porcelli fo-

cused on the Appeals Court’s clearly erroneous finding that

their expert ever, anywhere, had access to the original tapes,

and quoted extensively from the record to demonstrate this er-

ror, urging the court to correct this error of fact and to adopt

the holding of United States v. Fuentes, 563 F.2d 527, 532 (2d

Cir. 1977), cert. denied, 434 U.S. 950 (1977) that access to the

original tape recordings of a defendant’s conversations is a

matter of right.°®

Petitioners never declined to have their expert examine the

recordings in the prosecutor's office, for the opportunity was

not only non-existent, it was vigorously resisted by the govern-

ment:

Mr. Weinserc: We have a right to it under the Fuentes

case. I don’t believe it is a discretionary area. We are

asking your Honor to order the Government to give us

certain original tapes... . The expert can be with an

F.B.1. expert. He can do it in their lab. We are not ask-

ing to take custody. We want a chance for our expert to

examine them.

(Appendix to petition for rehearing, hereafter APR. Exhibit I

at 4.)

* Relevant portions of the record supporting their claim of denial of access

to the original tapes were appended to the petition for rehearing. However,

the petition was denied.

Mr. Victor: I want to make clear whether the tapes are

available to use for our expert. If your Honor is saying

no, the record is clear.

THE Court: | am not aware of any showing requiring it.

Mr. Victor: I respectfully except.

(APR. Exhibit P, at 1503-1304; AA. 959-960.)

Reasons for Granting the Writ.

I. Wuere A ConvICcTION REsTs ON Tape RECORDINGS OF A De-

FENDANT’S COMMUNICATIONS AND ACCESS TO THE ORIGINAL

Tape Recorpincs 1s REQUESTED BY DEFENDANTS AND DENIED

BY THE TRIAL Court, FirtH AMENDMENT PRINCIPLES OF DvuE

PROCESS ARE VIOLATED.

[fJundamental fairness is violated where a criminal de-

fendant on trial for his liberty is denied the opportunity to

have an expert of his choosing . . . examine a piece of

critical evidence whose nature is subject to varying expert

opinion.

Barnard v. Henderson, 514 F.2d 744, 746 (5th Cir. 1975.) In

Barnard, a defendant who had not been permitted to have a

ballistics expert examine the alleged murder weapon, a critical

piece of evidence, was granted a new trial. Also see United

States v. Durant, 545 F.2d 823 (2d Cir. 1976) where the Court

ordered a new trial for a defendant who had requested but

had been denied the court appointment of a fingerprint

analyst in order to refute the expected testimony of the govern-

ment expert. In United States v. Gaultney, 606 F.2d 540 (5th

Cir. 1979), rev'd on other grounds, 451 U.S. 204 (1981), error

was found in not permitting a chemist chosen by the defense to

inspect seized narcotics. A new trial was ordered for the de-

fendant .: White v. Maggio, 556 F.2d 1352 (5th Cir. 1977)

where the defendant could not refute the state witness’ testi-

mony that bullets had been fired from a particular gun be-

cause his pretrial request to have the evidence evaluated by his

own expert was denied. Due process required a new trial in

Bowen v. Eyman, 324 F.Supp. 339 (D. Ariz. 1970) where a

defendant in a rape prosecution was not permitted access to

the evidence necessary to perform a comparative blood test.

The defendants’ convictions were based on recordings of

their own words. The government alone had access to the

original tapes allegedly reflecting said evidence. The failure

of the trial court to provide equal access to the original tapes

was egregious where defendants clearly challenged the com-

pleteness and authenticity of the copies by their own affidavit

and affidavits of an electronics expert.

A. The Imposition of a Burden on the Defendants to Pre-

sent Plausible Evidence Indicating an Alteration or Dis-

tortion of Tape Recorded Evidence as a Condition Prece-

dent to Their Being Allowed the Opportunity to Examine

the Original Tape Recordings Violated Due Process.

The imposition of a burden of production as a condition

precedent to independent access to and examination of origi-

nal tape recordings which could be satisfied only by affidavits

of defendants (and only by affidavits alleging changes or addi-

tions) is without precedent. Such access is normally provided

without issue. United States v. Fuentes, 563 F.2d 527, 532 (2d

Cir. 1977), cert. denied, 434 U.S. 950 (1977); United States v.

Cortellesso, 663 F.2d 361, 364 (1st Cir. 1981); United States v.

Chiarizio, 525 F.2d 289, 293-294 (2d Cir. 1975); United States

v. DiMuro, 540 F.2d 503, 512, n.4 (Ist cir. 1976). Independ-

ent access and examination is a matter of right pursuant to

Federal Rule of Criminal Procedure 16(a)(1)(A) and

16(a)(1)(C) and in fairness.

In essence the trial court demanded that defendants prove

that the omissions were caused by alterations in the tapes,

while simultaneously denying access to the only possible source

of such proof. Expert examination of the original tapes was

necessary to confirm or deny the “high probability of altera-

tion” (AA. 396-397); yet the expert was denied access until he

first proved with certainty the very fact which he could not

determine without access to the originals (AA. 884-888,

963-965, 387-389, 396-399, 404-406). See Statement of the

Case at Section B, supra where portions of the record are

extensively cited in support of the nature and extent of the

burden imposed.

B. The Conflict Between the Second Circuit and the First,

Third, Fifth and Seventh Circuits over the Issue of Wheth-

er a Defendant must Present Plausible Evidence of Alter-

ation or Distortion of Tape Recordings Prior to Being

Granted Access to the Originals of Such Tapes Requires

Authoritative Resolution by This Court.

In United States v. Fuentes, 563 F.2d 527 (2d Cir. 1977),

cert. denied, 434 U.S. 950 (1977), the appellant argued that

the surveillance tapes were inadmissible against him because

the informant who recorded him may have tampered with the

recording devices. The court dismissed this claim as being

“completely speculative” and concluded that “had Fuentes

(desired to challenge the admissibility of the tapes on the

grounds they were tampered with) he could have called an ex-

pert to examine the tapes for evidence of tampering.” Jd. at

532. The Second Circuit further concluded that:

since recorded evidence is likely to have a strong impres-

sion upon a juvy and is susceptible to alteration, we have

adopted a general standard, namely, that the govern-

ment “produce clear and convincing evidence of authen-

ticity and accuracy” as a foundation for the admission of

such recordings.

United States v. Knohl, 379 F.2d 427, 440 (2d Cir.), cert. de-

nied, 389 U.S. 973, 88 S.Ct. 472, 19 L.Ed. 2d 465 (1967). Id.

However, in the instant case, the Second Circuit clearly up-

holds a weighty requirement that the defendants produce

plausible evidence of alteration or distortion of what was re-

corded on the tapes before allowing them access to the original

tapes.

The First Circuit in United States v. Cortellesso, 663 F.2d

361 (lst Cir. 1981), where appellants contested the court's

findings that the government had established an adequate

foundation for the admission of tape recordings of court-au-

thorized electronically intercepted telephone conversations,

concluded that: “If appellants really suspected tampering. . .

they could have engaged an expert to examine the tapes and

rebut the government's proof.” (Citation to Fuentes omitted.)

In marked contrast, see United States v. Starks, 515 F.2d 112

(3d Cir. 1975), cited and distinguished in United States v.

Craig, 573 F.2d 455 (7th Cir. 1977) at 479.

The Fifth Circuit in United States v. Biggins, 551 F.2d 64

(5th Cir. 1977) held that the party introducing a tape into evi-

dence has the burden of going forward with sufficient evi-

dence to show the recording is an accurate reproduction of the

conversation recorded. This required, in pertinent part, a

showing that there was an “absence of material deletions, ad-

ditions, or alterations in the relevant part of the tape.” 551

F.2d at 66. Following Biggins, the Fifth Court has concluded:

The second issue, the accuracy of the recording, is the

most crucial in deciding whether the recording is authen-

tic... . However, the possibility of alterations to the

tape need not be eliminated absolutely, but only as a rea-

sonable possibility.

United States v. Bright, 630 F.2d 804, 819 (5th Cir. 1980).

A number of cases have arisen raising claims that the gov-

ernment failed to follow the sealing requirements of 18 U.S.C.

§ 2518(8)(a).” These cases support the petitioners’ conten-

tions that the authenticity of these surveillance tapes is the

critical question and that the burden to challenge authenticity

based on tampering occurring during or immediately after

interception, i.e., pre-sealing, must not and should not be in-

surmountable.* The legislative history of Title III of the Om-

* United States v. Johnson, 696 F.2d 115, 124 (D.C. Cir. 1982); United

States v. Gigante, 538 F.2d 502, 505 (2d Cir. 1976); United States v.

Diadone, 558 F.2d 775, 780 (5th Cir. 1977); United States v. Lawson, 545

F.2d 557, 564 (7th cir. 1975); United States v. Falcone, 505 F.2d 478 (3d Cir.

1974) at 483-484, cert. denied, 420 U.S. 955 (1975); United States v. Diana,

605 F.2d 1307, 1314 n.6 (4th Cir. 1979), cert. denied, 444 U.S. 1102 (1980).

Petitioner's case is similar to many of these cases in that no chain of custody of

the tapes was proved, but different in that a clear challenge to the authentici-

ty of the tapes was raised.

* Petitioners’ claim of alterations in the tapes introduced against them is

strikingly different from that of the defendants in United States v. Fuentes,

supra; United States v. Bright, 630 F.2d 804 (5th Cir. 1980) and United

States v. Clinger, 681 F.2d 221 (4th Cir. 1982), cert. denied, 103 S.Ct. 221

because those cases involved informants wearing “body bugs” (although

Fuentes also involved an informant with a bug in his vehicle which was ap-

parently controlled by a device in the armrest of the car). The courts in each

of those cases were partially persuaded by the fact that manipulating a tape

recording device worn on the body or in the car's armrest would require con-

spicuous movements and thus found no reasonable possibility that the infor-

mants would risk such moves in an effort to alter the tapes. See, e.g., United

States v. Clinger, supra at 224. The bug at issue in this case was a powerful

room bug, safely monitored from an unobservable distance.

nibus Crime Control and Safe Streets Act shows clearly that

the sealing requirement was intended to insure the integrity of

the tapes after interception. 1968 U.S. Code Cong. & Adm.

News, pp. 2193-2194. In such a sensitive area as electronic in-

vasion of privacy, there is an obvious compelling need for

standards to protect the integrity of tapes during and immedi-

ately after the interception process. The intent of Congress to

ensure the integrity of surveillance tapes will be absolutely

thwarted if tampering is permitted while tapes are being made

or before the seal is applied.

II]. FirrH AMENDMENT PRINCIPLES OF DvuE PROCESS AND THIS

Court’s Powers OF SUPERVISION REQuIRE RELIEF WHEN THE

Court oF APPEALS Basep 1Ts Decision DENYING PETITION-

ERS’ CONSTITUTIONALLY-BASED CONTENTION RELATING TO

THEIR Expert's BEING DENIED ACCESS TO THE ORIGINAL TAPES

OF THEIR INTERCEPTED COMMUNICATIONS ON APPELLATE

Fact-FINDING Devoip oF EVIDENTIARY SUPPORT.

The facts as found by the Appeals Court below, namely that

petitioners experts had access to the original tapes for analysis,

that they sought to analyze the original tapes outside the gov-

ernment’s custody and that there was an absence of plausible

evidence indicating an alteration or distortion of what was re-

corded on the tapes are devoid of evidentiary support and have

no basis in the record. Where factual findings are “‘so totally

devoid of evidentiary support as to render (a defendant's) con-

viction unconstitutional under the Due Process clause of the

Fourteenth Amendment,” this Court has granted certiorari to

review. Thompson v. City of Louisville, 362 U.S. 199 (1960);

Garner v. Louisiana, 368 U.S. 157, 163 (1961); Jacobellis v.

Ohio, 378 U.S. 184, 189 (1964) and cases cited therein; Spano

v. New York, 360 U.S. 315, 321 (1959); especially see Henry v.

Mississippi, 379 U.S. 443 (1965). The facts found by the Sec-

ond Circuit are so erroneous on this critical issue as to repre-

sent a gross miscarriage of justice and proper supervision of the

federal judiciary demands that the lower court be set aright.

See Statement of the Case at Section C, supra, citing

voluminous references to the record in support of the facts as

petitioners plead herein, and not as found by the Second Cir-

cuit Court of Appeals. This Honorable Court’s guidance is

needed to set standards for review and remand when the

Court of Appeals findings are devoid of evidentiary support.

III. THe Districr Court’s DENIAL OF Expert ACCESS TO THE

ORIGINAL TAPE RECORDINGS VIOLATED DEFENDANTS’ RIGHT

TO CONFRONT THE GOVERNMENT'S WITNESSES ON THE ISSUE

OF THE AUTHENTICITY OF THE TAPES, BY DEPRIVING THEM

OF THE OpPporRTUNITY TO REBUT AND CONSTRAINING THEM

TO STAND Mute RATHER THAN ATTACK THE INTEGRITY OF

THE TAPES WHEN THEY WERE OFFERED A PROOF.

See United States v. Williams, 613 F.2d 560 (5th Cir. 1980);

United States v. Gaultney, 606 F.2d 540 (5th Cir. 1979), rev'd

on other grounds, 451 U.S. 204 (1981). Petitioners Guippone

and Porcelli had no meaningful opportunity to confront the

only evidence condemning them; evidence which they knew

and claimed to be distorted and somehow tampered with. Al-

though they made every reasonable effort to object and to

meet the court’s requirements, they were essentially trapped in

a vicious “Catch-22”-type situation. They could not meet the

burden imposed without access to the original tapes. They

could not have that access without first meeting the burden,

When the tapes were offered, they were constrained to merely

raise their objections without the opportunity to truly confront.

Under the circumstances of this case, and the rulings of the

trial court, their Sixth Amendment rights were rendered ephe-

meral. The Second Circuit Court of Appeal’s treatment of this

critical issue failed to respect the record and rendered their

confrontation rights meaningless.

Conclusion.

The record in this case unambiguously shows that defend-

ants’ expert never had access, anywhere, to the original tapes

and that an excessive and impossible burden was placed on the

defendants to produce evidence of tampering with the tapes

regarding which independent analysis was sought, prior to the

access necessary to meet such a burden.

Defendants made repeated requests for an order providing

their expert with access to the original tape recordings and

never sought to remove the tapes from the government’s cus-

tody. They consistently accepted the condition that inde-

pendent analysis of the original tape recordings would be in

the context of the government's continued custody of such re-

cordings and in the presence of government representatives.

Although handcuffed by being deprived of access to the

original recordings, the defendants presented a more than

colorable challenge to the authenticity of the tapes. The right

to independent analysis of the tapes is clear under United

States v. Fuentes, supra. However, the conflict in the circuits

and the lack of development of standards in this critical area of

the law shows a need for this Honorable Court to spell out the

proper allocation of the burden under such circumstances and

the reasonable parameters of “plausible evidence” that

tampering has occurred.

Robert Guippone and Anthony Porcelli plead this Honor-

able Court that electronic devices “lend themselves to diaboli-

cal fakery” (Lopez v. United States, 373 U.S. 427, 468 (1963)

(Brennan, J., dissenting) and that “untrained ears,” whether

those of the judge, the prosecutor, the defense counsel, or the

defendant himself, are utterly inadequate where a defendant

is confronted with tape recorded evidence which he knows

and claims to be false and misleading. The principles of equal

access to evidence, a cornerstone of the criminal justice

system, see Dennis v. United States, 384 U.S. 855 (1966) are at

stake.

For all the foregoing reasons, this petition for writ of cer-

tiorari should be granted.

Respectfully submitted,

MARTIN G. WEINBERG,

LILLIAN A. WILMORE,

OTERI, WEINBERG & LAWSON,

75 Blossom Court,

Boston, Massachusetts 02114.

(617) 227-3700

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

UNITED STATES COURTHOUSE

FOLEY SQUARE

NEW YORK 10007

A. DANIEL Fusaro

CLERK

Date: February 22, 1983

Re: U.S.A. v. WILLIE TERRY

Docket No. 82-1125

Dear Sir:

The Court has today handed down a decision in the above

entitled cause. Judgement of appellant Haynes reversed; af-

firmed as to all other appellants the decision of the district

court.

A copy of the opinion will be mailed to you tomorrow.

Additional copies of opinions may be obtained from this of-

fice in accordance with § 0.17(7) of the rules of this Court sup-

plementing the Federal Rules of Appellate Procedure.

Judgment has been entered today and a mandate will issue

in accordance with Rule 41 of the Federal Rules of Appellate

Procedure.

Your attention is directed to the provision of Rule 39(c)

F.R.A.P. requiring the itemized and verified bill of costs, if

any, to be filed within 14 days after entry of judgment, with

proof of service.

Very truly yours,

A. Daniel Fusaro

Clerk

By: Assistant Clerk

UNITED STATES of America,

Plaintiff-Appellee,

Willie TERRY, Defendant-Appellant.

UNITED STATES of America,

Plaintiff-Appellee,

Eric NALVEN, Robert Guippone, Willard Williams,

Onzelo Markum, Clarence Haynes, Saint Julian Harrison,

Paul Jenkins, and Anthony Michael Porcelli,

Defendants-Appellants.

Nos. 346-47, 348, 349-50, 385, 388, 426, 892, Dockets

82-1125, 82-1175, 82-1177, 82-1179, 82-1181, 82-1183,

§2-1185, 82-1187.

United States Court of Appeals,

Second Circuit.

Argued Dec. 1, 1982.

Decided Feb. 18, 1983.

Defendants were convicted before the United States District

Court for the Southern District of New York, Constance Baker

Motley, Chief Judge, and Richard Owen, J., of violations of

federal narcotics laws and conspiracy, and appeals were

taken. After consolidation of appeals, the Court of Appeals,

Mansfield, Circuit Judge, held that: (1) drug enforcement

agents’ warrantless searches of defendant's trash bags over six-

month period did not violate his reasonable expectation of pri-

vacy; (2) affidavit was sufficient to support order authorizing

electronic surveillance; (3) assistant attorney general’s power,

as person designated to approve applications for eavesdrop-

ping orders, did not expire when Attorney General left office;

(4) giving “community impact” instruction was harmless er-

ror; (5) defendants’ contemporaneous statements that they re-

fused to supply palm prints because they first wanted advice of

counsel were admissible, but error in excluding such evidence

was harmless; (6) agents had reasonable basis for believing

that a defendant was in an apartment and were entitled to

make limited security check of premises; but (7) there was in-

sufficient independent proof of a defendant's participation in

alleged conspiracy so as to permit jury to consider coconspira-

tor’s statements concerning defendant, and nonhearsay evi-

dence against defendant was insufficient to sustain his convic-

tions.

Reversed in part, and affirmed in part.

1. Searches and Seizures 7(20)

Drug enforcement agents’ warrantless searches of a defend-

ant’s trash bags over six-month period did not violate his rea-

sonable expectation of privacy; his placement of bags for col-

lection on public sidewalk was not an act of abandonment,

and mere fact that he used taped opaque containers did not in-

dicate intent to retain a privacy interest. U.S.C.A. Const.

Amend. 4.

2. Searches and Seizures 3,8(2)

Items found in closed containers during a lawful search did

not require a separate warrant. U.S.C.A. Const.Amend. 4.

3. Telecommunications 516

Affidavit, in which it was explained that a defendant left his

apartment and would not meet with someone he did not

know, that a search of his apartment would not reveal his nar-

cotics stash kept nearby, that coconspirators had become sus-

picious and refused to deal further with undercover agents and

that agents were unable through physical surveillance to estab-

lish the significance of the meetings between suspects, was suf-

ficient to support order authorizing electronic surveillance of

apartment, though affidavit did not state that all other less in-

strusive investigative techniques were unlikely to succeed.

18 U.S.C.A. § 2518(1)(c), (2), (3)(c); U.S.C.A. Const.

Amend. 4.

4. Telecommunications 516

Affidavit describing standard techniques that have been

tried and facts demonstrating why they are no longer effective

is sufficient to support an eavesdropping order even if every

other possible means of investigation have not been exhausted.

18 U.S.C.A. § 2518(1)(c), (2), (3)(c); U.S.C.A. Const.

Amend. 4.

5. Telecommunications 516

Where a defendant conducted his narcotics business only on

face-to-face basis from his apartment, it was unnecessary for

government investigators first to seek a wiretap before apply-

ing for eavesdropping order. U.S.C.A. Const. Amend. 4;

18 U.S.C.A. § 2518(1)(c), (2), (3)(c).

6. Telecommunications 519

Where factual justification for eavesdropping order had not

changed at time when an extension was sought, it was unnec-

essary to vary the specific facts in a renewal application.

U.S.C.A. Const. Amend. 4; 18 U.S.C.A. § 2518(1)(c), (2),

(3) (ce).

7. Telecommunications 512

Assistant attorney general's authorization approving of ap-

plication for eavesdropping order was not inadequate for fail-

ing to state that the three other assistant attorney generals with

higher priority were absent or otherwise unavailable; the

assistant attorney general granting the authorization was pre-

sumed to have properly exercised his statutory power and the

condition precedent was presumed to have been met in ab-

sence of any evidence, apart from mere conjecture or specula-

tion, to rebut the presumption. U.S.C.A. Const. Amend. 4;

18 U.S.C.A. § 2516/1).

§. Telecommunications 512

Designation by an outgoing attorney general of assistants to

authorize electronic surveillance remains valid at least for rea-

sonable time after attorney general leaves office, even though

without an express redesignation by his successor. U.S.C.A.

Const. Amend. 4; 18 U.S.C.A. § 2516(1).

9. Telecommunications 512

Assistant attorney general’s power, as a person designated

by Attorney General tu approve application for eavesdropping

orders, did not expire when Attorney General left office due to

change in administration, in view of the principle of adminis-

trative continuity and the fact that the subsequent Attorney

General impliedly ratified the designation of his predecessor.

18 US.C.A. § 2516(1); U.S.C.A. Const. Amend. 4.

10. Criminal Law 1158(2)

In prosecution for federal narcotics violations, findings that

no eavesdropping devices were installed in upstairs of a de-

fendant’s apartment and that, in compliance with eavesdrop-

ping order, a device with 10 to 15-foot range was installed

downstairs in a standard phone with 7 to 8-foot cord were not

clearly erroneous. U.S.C.A. Const. Amend. 4.

11. Telecommunications 519

Order, which authorized interception of narcotics-related

conversations “from” the downstairs of apartment, permitted

investigators to intercept such communications as might be

audible by an unenhanced eavesdropping device in living

room, even though they may have originated from upstairs

bedroom and could be heard downstairs because of open stair-

way between the rooms. U.S.C.A. Const. Amend. 4.

12. Telccommnications 520

In prosecution for federal narcotics violations, evidence, in-

cluding fact that none of the nearly 200 taped conversations

introduced into evidence appeared to have originated from

upstairs of a defendant’s apartment, sufficiently indicated that

investigating agents took reasonable steps to limit eavesdrop-

ping device’s interception of conversations to the interception

of narcotics-related conversations originating in downstairs

living room. U.S.C.A. Const. Amend. 4; 18 U.S.C.A.

§ 2518(5).

13. Telecommunications 520

Investigating agents must observe reasonable safeguards

against excessive intrusion by eavesdropping device. U.S.C.A.

Const. Amend. 4.

14. Criminal Law 627.6(3)

In absence of any plausible evidence indicating alteration or

distortion of what was on original recordings of conversations

intercepted by eavesdropping device in a defendant’s apart-

ment and in view of court’s finding of authenticity and ac-

curacy, giving defendants access to original recordings, in-

stead of copies, would have been unwarranted. Fed.Rules

Cr.Proc. Rule 16(a)(1)(C), 18 U.S.C.A.; U.S.C.A. Const.

Amend. 4.

15. Criminal Law 1172.1(2)

Drugs and Narcotics 132

In prosecution for federal narcotics violations, giving of

“community impact” instruction was error, but the error was

harmless, in view of fact that the evidence was overwhelming

against all defendants, except a defendant whose convictions

were reversed on other grounds, and that the instruction re-

ceived no prominence,

16. Criminal Law 641.2, 1224(3)

Government has right to obtain palm prints pursuant to a

lawful custodial arrest, without the presence of counsel.

U.S.C.A. Const. Amend. 6.

17, Criminal Law 419(1), 1170(1)

In criminal proceeding in which defendants’ refusal to sup-

ply palm prints was admitted as evidence of consciousness of

guilt, defendants’ contemporaneous statements that they re-

fused because they first wanted advice of counsel were admis-

sible under exception to hearsay rule for proof of “state of

mind,” but error in excluding such evidence was harmless, in

view of the overwhelming evidence of guilt and in view of de-

fense counsel's efforts to inform jury that defendants refused to

furnish prints until they had advice of counsel. Fed. Rules

Evid. Rules 106, 802, 803(3), 28 U.S.C.A.; Fed.Rules Cr.

Proc. Rule 52(a), 18 U.S.C.A.; U.S.C.A. Const. Amend. 6.

18. Drugs and Narcotics 123

Evidence, including evidence that two defendants agreed, in

response to a person’s request for “rock,” to send him “three-

quarters” of a kilogram of “Peruvian flake,” that a defendant

had agreed to “bring down the eighth” and that person express-

ing need for heroin had paid $30,000 for “boy” the night before,

was sufficient to sustain such defendants’ convictions of posses-

sion of three quarters of kilogram of cocaine with intent to

distribute and possession of one eighth of kilogram of heroin.

Comprehensive Drug Abuse Prevention and Control Act of

1970, § 401(a)(1)(A), 21 U.S.C.A. § 841(a)(1)(A).

19. Conspiracy 47(12)

In prosecution for federal narcotics violations including con-

spiracy to possess and distribute heroin and cocaine, evidence

was sufficient to warrant jury to find the existence of a single,

large-scale “chain-type” narcotics operation; temporary hiatus

occurring while three defendants waited for danger to pass did

not transform the single ongoing conspiracy into two conspira-

cies where there was nothing to indicate that any of them

viewed their mutual dealings as having terminated. Compre-

hensive Drug Abuse Prevention and Control Act of 1970,

§ 406, 21 U.S.C.A. § 846.

20. Criminal Law 370, 371(1)

In prosecution for federal narcotics violations, trial judge

did not err in ruling that he would, if a defendant took the

stand, admit his 20-year-old narcotics conviction on issue of

intent and guilty knowledge where defense counsel claimed

that defendant’s telephone conversations with certain person

related to gambling, rather than narcotics, and defendant re-

fused to remove such issue from dispute by stipulating that the

terms used in the taped conversations referred to narcotics.

Fed.Rules Evid. Rule 404(b), 28 U.S.C.A.

21. Criminal Law 700

Defendant was not denied fair trial due to prosecutor's al-

leged use of his eyes to point toward defendant when witness

hesitated in identifying defendant, in view of fact that it was

found that any hesitation was attributable to fact that defend-

ant’s face was blocked from witness by defense counsel's open

briefcase, that it was found that any change in prosecutor's

facial expression was caused by astonishment when, just as

witness was looking for defendant, a codefendant inexplicably

rose to his feet and that there was abundant other independent

evidence identifying defendant.

22. Criminal Law 393(1)

In criminal proceeding, ordering a defendant to give a voice

exemplar was not abuse of discretion.

23. Criminal Law 489

In criminal proceeding, cross-examining a defendant's

“voice expert” witness regarding prior occasions when his tes-

timony in other cases had been criticized by the court as un-

worthy of belief was not error, in that proof that a judge had

found that the witness had “guessed under oath” was proba-

tive of the weight to be accorded to his testimony. Fed. Rules

Evid. Rules 608(b), 613(a), 28 U.S.C.A.

24. Criminal Law 339.5

In prosecution for federal narcotics violations, a thrice-con-

victed narcotics dealer’s identification testimony was admissi-

ble for purpose of establishing a defendant’s residence and of

identifying his voice on a tape after he had refused to stipulate

that he was the speaker.

25. Criminal Law 728(2)

In proceeding in which defendant was convicted of federal

narcotics violations, in which a thrice-convicted narcotics

dealer gave identification testimony and in which the dealer’s

testimony regarding his sordid history was elicited by defense

counsel over Government's objection, defendant waived any

possible claims based on prosecutor's reference to such testi-

mony in summation by failing to object.

26. Conspiracy 45

Criminal Law 673(4)

In prosecution for federal narcotics violations, admission of

government witness’ testimony regarding his own narcotics

history and attempts to bribe state court judges was not error,

10a

in that the witness’ testimony linked a defendant to the con-

spiracy: limiting instruction was unnecessary since the com-

plained of testimony related exclusively to witness and could

not have been attributed by jury to any other defendant.

Fed.Rules Evid. Rules 105, 403, 28 U.S.C.A.: Fed.Rules

Cr.Proc. Rule 14, 18 U.S.C.A.; U.S.C.A. Const. Amend. 6.

27. Criminal Law 1168(2), 1169.1(2)

In prosecution for federal narcotics violations, any error in

admission of government witness’ testimony regarding his own

narcotics history and attempts to bribe state court judges or in

failing to give a limiting instruction would not have been prej-

udicial to certain defendant, in view of the abundant inde-

pendent evidence of his guilt. Fed.Rules Evid. Rules 105,

403, 28 U.S.C.A.; Fed. Rules Cr.Proc. Rule 14, 18 U.S.C.A.;

U.S.C.A. Const. Amend. 6.

28. Criminal Law 956.2(6)

Considering defendant's perjured testimony, in imposing

sentence for federal narcotics violations, was not error.

29. Criminal Law 641.5

Though it would be inconsistent with Miranda to infer a

waiver of right to counsel after accused has clearly asserted his

right to counsel, unless and until accused asks for a lawyer he

may waive his procedural Miranda rights. U.S.C.A. Const.

Amend. 6.

30. Criminal Law 641.4(1)

Prior to accrual of right to counsel, standard for waiver of

such right is whether under the facts and circumstances of the

case, including the accused’s background and conduct, he

understands the right and voluntarily intends to relinquish it.

U.S.C.A. Const. Amend. 6.

lla

31. Criminal Law 412.2(1)

Defendant's right to counsel was not violated during inter-

rogation in which he made false exculpatory statement where

his rights were scrupulously respected at every stage, with in-

terrogation terminated immediately on his stating that he

wanted to consult a lawyer, and there was no suggestion that

he was subjected to lengthy questioning or other improper tac-

tics. U.S.C.A. Const. Amend. 6.

32. Criminal Law 1169.12

In prosecution for federal narcotics violations, even if ad-

mission of defendant's false exculpatory statement that he had

never taken drugs would have been error, it would have been

harmless, in view of fact that the statement formed but a min-

iscule part of the evidence against him.

33. Criminal Law 404(3)

Trial court’s determination that probative value of admis-

sion of a weapon outweighs danger of unfair prejudice will be

upheld unless arbitrary or irrational.

34. Criminal Law 404(4)

In prosecutior: for federal narcotics violations, admission of

a defendant’s licensed gun and 300 rounds of hollowed out

“dum dum” bullets which had been seized from his basement

office was not error, in light of fact that such evidence sup-

ported conclusion that defendant intended the gun and am-

munition for protection, not of his bar, but of other business,

and supported inference that the gun and ammunition were

instruments of narcotics trade.

35. Arrest 68, 71.1(4)

Drug enforcement agents, who had valid warrant for de-

fendant’s arrest, who knew that telephone at certain apart-

l2a

ment was listed to woman with same surname as defendant,

who knew that man with such surname had spoken to another

person from that apartment, who were informed by boy with

such surname on his shirt that his parents lived in the apart-

ment and were not told by boy that father was not at home

and who arrived at apartment at 8:45 A.M. on Sunday, had

reasonable basis for believing defendant was in apartment and

thus had right to enter it; once inside, agents were entitled to

make limited security check of the premises.

36. Arrest 71.1(5)

Drug enforcement agent's seizure of scale used to weigh nar-

cotics, while agents were armed with warrant for defendant's

arrest and were lawfully in his apartment, was lawful where,

though agent had to walk over to box and look into it before

determining that it contained a scale, the outside of the box,

which was in plain view, bore the name of a balance scale fre-

quently used in narcotics dealing and the open box revealed

part of the scale with white powder residue on it. U.S.C.A.

Const. Amend. 4.

37. Arrest 71.1(5)

Where drug enforcement agents, who were armed with

warrant for defendant's arrest and were lawfully in his apart-

ment, discovered marijuana and a scale used to weigh nar-

cotics during agents’ initial pass-through of the apartment, the

agents were entitled to remain on the premises to secure the

apartment from destruction of evidence and to request

assistance of defendant’s wife in locating him, and, thus, plain

view seizure of business card, which occurred during that

period, was lawful. U.S.C.A. Const. Amend. 4.

38. Criminal Law 427(2)

Before jury may consider against a defendant a conspiracy

count resting in part on hearsay statements of an alleged co-

13a

conspirator, trial judge must be satisfied by fair preponder-

ance of the independent non-hearsay evidence that the de-

fendant was in fact a member of the conspiracy.

39. Criminal Law 427(5)

Standard for independent proof of participation in conspir-

acy, before jury may consider hearsay statements of an alleged

coconspirator, is not as high as that needed to submit a charge

of conspiracy to jury; the proof may be “totally

circumstantial” and the court must view the evidence as a

whole rather than consider individual items in isolation.

40. Conspiracy 47(1)

Though once a conspiracy has been proved to exist the evi-

dence needed to link another defendant with it need not be

overwhelming, government must nonetheless show a likeli-

hood of an illicit association between the declarant and the de-

fendant.

41. Conspiracy 40.1

Mere familiarity with a drug dealer does not make one a

member of his conspiracy.

42. Criminal Law 422(1)

Association with a conspirator does not provide a sufficient

basis for the admissibility of hearsay statements of an alleged

coconspirator.

43. Criminal Law 427(5)

Scraps of paper retrieved from a defendant's trash and his

notebook containing references to “Legs” were hearsay, and,

thus, could not be used to meet requirement that trial judge be

satisfied by a fair preponderance of the independent nonhear-

say evidence that a defendant was in fact a member of the con-

l4a

spiracy before jury could consider hearsay statements of an al-

leged coconspirator.

44. Criminal Law 419(1)

Statements made by defendant when he dialed number at

second defendant's apartment house were “hearsay” as to such

defendant where only the first defendant's voice was recorded

and there was no non-hearsay proof that second defendant

was person on the other end of the line.

See publication Words and Phrases for other judicial con-

structions and definitions.

45. Criminal Law 427(5)

In prosecution for federal narcotics violations, there was in-

sufficient independent proof of defendant's participation in al-

leged conspiracy so as to permit jury to consider coconspira-

tor’s statements concerning defendant, and the nonhearsay

evidence against defendant was insufficient to sustain his con-

viction of conspiracy and of the substantive offenses. Compre-

hensive Drug Abuse Prevention and Control Act of 1970,

§§ 401 (a) (1) (A), 406, 21 U.S.C.A. §§ 841(a)(1)(A), 846.

46. Telecommunications 363

Evidence was insufficient to sustain defendant’s conviction

of using telephone to further conspiracy, in view of the insuffi-

ciency of the evidence to convict defendant of the predicate

felony of membership in the conspiracy. Comprehensive

Drug Abuse Prevention and Control Act of 1970, §§ 403(b),

406, 21 U.S.C.A. §§ 843(b), 846.

Bennett M. Epstein, New York City, for defendant-appel-

lant Terry.

Stanley Neustadter, New York City, for defendant-appel-

lant Nalven.

l5a

Martin G. Weinberg, Boston, Mass. (Oteri, Weinberg &

Lawson, Boston, Mass., of counsel), for defendants-appellants

Guippone and Porcelli.

Jay Goldberg, New York City, for defendant-appellant Wil-

liams.

Theodore Krieger, New York City, for defendant-appellant

Markum.

Richard A. Greenberg, New York City, for defendant-ap-

pellant Haynes.

Salvatore F. Quagliata, Ozone Park, N.Y., for defendant-

appellant Harrison.

Jeffrey L. Greenup, New York City, for defendant-appel-

lant Jenkins.

Richard A. Martin and Kate Stith Pressman, Asst. U.S.

Attys., New York City (John S. Martin, Jr., U.S. Atty. for

S.D. N.Y., Walter P. Loughlin, Asst. U.S. Atty., New York

City, of counsel), for plaintiff-appellee.

Before LUMBARD, MANSFIELD and KEARSE, Circuit

Judges.

l6a

MANSFIELD, Circuit Judge:

Defendants appeal from judgments of the Southern District

of New York convicting them of federal narcotics violations

arising out of the same core of operative facts. One indict-

ment (§ 81 Cr. 398) charged (1) seven of the appellants (all but

Terry) and 10 others! with conspiracy to possess and distribute

heroin and cocaine in violation of 21 U.S.C. § 846 (Count 1),

(2) defendant Willard Williams with organizing and supervis-

ing a continuing criminal enterprise in violation of 21 U.S.C.

§ 848 (Count 2), and (3) various defendants with possession of

large quantities of heroin and cocaine in violation of 21 U.S.C.

§ $41(a)(1) (Counts 3 to 15) and illegal use of the telephone to

further the narcotics conspiracy in violation of 21 U.S.C.

§ 843(b) (Counts 16 to 25). Defendant Williams pleaded guil-

ty to Count Two (criminal enterprise) preserving by stipula-

tion three pretrial suppression claim issues for appeal.* The

other six appellants were convicted of the conspiracy count

and the related substantive offenses charged after a six-week

jury trial before Judge Richard Owen.? We reverse the judg-

‘Of the 10 rernaining individuals, § pleaded guilty before trial; one, “Bob-

by” James, was acquitted after trial; and one is a fugitive. One of the de-

fendants, Paul Jenkins, who pleaded guilty before Judge John M. Cannella,

and sought to join in this appeal pursuant to F.R.A.P. 28(i), did not preserve

any issues for appeal. Accordingly, we affirm his conviction.

*Williams was sentenced to life imprisonment without parole. By

separate order we reject Williams’ claim that his guilty plea should be

vacated because of alleged assurances with respect to the sentence he would

receive.

*Porcelli, Guippone, and Harrison were sentenced to 30-year terms of im-

prisonment with lifetime special parole. Haynes and Markum received

15-year sentences of imprisonment with lifetime special parole. Nalven was

sentenced to 3 years imprisonment. Williams, Porcelli, Guippone and

Haynes, as previously convicted federal narcotics violators, were subject to

enhanced penalties pursuant to 21 U.S.C. §§ §41(b)(1)(A) and £51.

l7a

ment convicting appellant Haynes of conspiracy and illegal

use of atelephone.* Finding no merit in the other claims of er-

ror, we affirm the judgments convicting Williams, Porcelli,

Guippone, Harrison, Markum, and Nalven.

A second indictment (S 81 Cr. 426) charged Terry in three

counts with similar narcotics violations (conspiracy with Wil-

liams and another to distribute heroin and cocaine, possession

with intent to distribute 19.4 grams of cocaine and diluents,

use of telephone to facilitate conspiracy). After a non-jury

trial before Chief Judge Constance Baker Motley, Terry was

convicted of all counts and placed on probation for two years.

We affirm.

Viewed most favorably to the government, Glasser v.

United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed.

680 (1942), the evidence showed that during the period from

October 1980 to May 1981 Williams managed from his duplex

apartment on East 89th Street, New York City, a continuing

narcotics business in which he received and processed whole-

sale quentities of heroin and cocaine, re-sold these drugs to dis-

tributors, paid back the suppliers, laundering and banking the

profits, and that all but one of the other seven appellants

played active roles in the business, either as suppliers, purchas-

ers, or facilitators (e.g., money launderers, drug testers). De-

fendants Porcelli and Guippone were the main suppliers of

wholesale quantities of heroin and cocaine to Williams. The

distributors included appellants Harrison, Markum, Nalven,

Terry and various co-defendants. Harrison also became a sup-

plier of cocaine to Williams when he was unable to pay Wil-

liams for the heroin he had distributed. This heroin had been

supplied by Guippone and Porcelli. Nalven, in addition to

‘The government concedes that Haynes’ term of special parole was

improper. Bifulco v. United States, 447 U.S. 381, 100 S.Ct. 2247, 65

L.Ed.2d 205 (1980).

18a

acting as a distributor, assisted Williams in testing for purity

drugs being supplied to Williams and “laundering” some of

the large cash receipts from sales, i.e., arranging to bank the

funds as coming from legitimate sources.

The evidence establishing the existence and operations of

the narcotics enterprise consisted mainly of (1) testimony of

Drug Enforcement Administration (DEA) agents who made

an initial purchase of heroin from one of Williams’ distributors

and engaged in months of continuous surveillance of the de-

fendants, (2) papers and articles retrieved from bags of Wil-

liams’ trash placed on the sidewalk outside his apartment ‘or

collection, (3) pen registers, photographs, video tapes and

court-authorized electronic surveillance of conversations

among the appellants, (4) post-arrest admissions by some de-

fendants, and (5) articles seized at the time of arrest of some,

including one kilogram of cocaine found in Williams’ apart-

ment, $400,000 in safety deposit boxes controlled by him

($14,500 of which was part of $40,000 previously paid by DEA

undercover agents for the purchase of heroin), firearms and

ammunition found in the premises of Harrison, Guippone and

Nalven, and cocaine from Harrison's automobile.

The government's investigation into the defendants’ nar-

cotics activities began on October 24, 1980, when a DEA

agent, Zenford Mitchell, purchased one-eighth of a kilogram

of heroin for $40,000 from a previously-convicted narcotics

dealer, Steward, who obtained the heroin from an apartment

building at 307 East 89th Street, New York City, where de-

fendant Williams, a twice-convicted narcotics distributor,

rented and occupied a ground-floor duplex apartment (“J”

and “1J”) under the name Felix Davis, with telephones regis-

tered in other names. Further surveillance, use of an infor-

mant, and an interview with the owner of the apartment

building, provided reasonable grounds for the belief that the

source of the narcotics was the Williams’ duplex. For instance,

19a

Steward was seen on two occasions entering that apartment,

after dialing the Williams’ apartment phone number from a

nearby public phone. On October 31, 1980, a week after the

DEA agent’s purchase of the heroin through Steward, defend-

ants Porcelli and Guippone, previously convicted federal nar-

cotics violators, were observed visiting the apartment, depart-

ing with a larged closed paper bag and driving off with it.

More visits to the Williams’ apartment by Porcelli and Guip-

pone followed.

Noting that Williams left his garbage in a green bag closed

with a brown tape in the public corridor of his apartment to be

brought out to the sidewalk for pick-up by the trash collector,

DEA agents periodically removed some of the bags from the

sidewalk, which yielded evidence identifying Williams and in-

criminating him and others. Among the items recovered from

the trash was a note in Williams’ handwriting dealing with a

large-scale heroin transaction; records in code numbers of the

financial accounts of various narcotics distributors, including

payments and amounts owed; wrappers for mannite, a sub-

stance used to dilute heroin; traces of cocaine; and a record of

large-scale narcotics sales. Pen registers connected to the

Williams’ phone lines from outside his apartment recorded the

making and phone numbers of calls to Porcelli, Steward and

Harrison. Numerous persons were observed visiting the Wil-

liams’ apartment, including Harrison, Porcelli, Guippone,

defendants Paul Jenkins and Bernard Henderson (from whom

DEA agents had purchased heroin).

‘A pen register is a device installed on a telephone line outside of the sub-

scriber’s horne that records the electronic impulses made when outgoing calls

are dialed. The device perforates a tape, indicating the date, time, and

number dialed. The tape does not show whether the receiving telephone was

answered, nor whether there was any conversation. The device on Williams’

telephone also determined the origin of incoming calls. See J. Carr, The

Law of Electronic Surveillance, § 3.02(3)[b)[ii) at 74 (1977 and Supp. 1979).

20a

On February 18, 1981, Judge Robert J. Ward of the South-

ern District of New York, upon the application of the DEA

agents, approved in writing by Sanford M. Litvack, Assistant

Attorney General of the United States, supported by an affi-

davit attesting to the foregoing information, authorized the in-

stallation of two listening devices (“bugs”) in the living room

(Apt. J) located downstairs in the Williams’ duplex to record

pertinent conversations “from the premises known as the first

floor of duplex Apartment J,” which was connected to the up-

stairs bedroom (known as “lJ”) by a large open stairway.°

Thereupon police officers, posing as telephone repairmen, in-

stalled two bugs in the Williams’ living room, one in a wall

jack near the floor, and the other in a telephone having a

standard 7-8 foot cord, which was too short to permit a person

to carry the phone upstairs to Williams’ bedroom unless the

cord was lengthened.

Over the next few months DEA agents recorded scores of

conversations in the Williams’ apartment which, with the

agents’ surveillance and evidence already uncovered, clearly

established the existence of the above-described continuous

narcotics enterprise and the participation in it of all of the ap-

pellants except Haynes. Porcelli and Guippone visited the

Williams’ apartment on numerous occasions, carried out pack-

ages and had discussions with Williams regarding purchases of

heroin and cocaine, amounts of money paid and owed, and

problems in obtaining payment from Harrison. On March 6,

1981, for instance, they visited Williams, received $30,000

from him, and arranged to supply him with three-quarters of a

kilogram of cocaine. On March 16, 1981, Porcelli received

$30,000 from Williams and agreed to hold an eighth of a kilo

of heroin for him, Although Porcelli and Guippone suspended

deliveries when they discovered that their car was being sur-

* The order was renewed on April 2, 1981 for an additional 30 days.

2la

veilled in mid-March 198] after a visit to Williams, Porcelli on

April 29, 1981, resumed discussions with Williams regarding

methods of continuing narcotic sales on a more secure basis to

avoid government surveillance. When Porcelli was arrested

on May 31, 1981, he instructed his daughter to tell his son-in-

law, “George” (Valenti) to “get rid of” the narcotics. There

was evidence from which it could be inferred that Porcelli had

kept a “stash” of narcotics at Valenti’s house. When Guip-

pone was arrested he had 300 rounds of ammunition in his car

and he denied knowing anyone named Williams or Felix

Davis. However, in his wallet Guippone had several tele-

phone numbers for Harrison in Williams’ handwriting, as well

as the address of Williams’ daughter.

The electronic evidence against Harrison was equally in-

criminating and, coupled with the agents’ surveillance and

other evidence revealed that Harrison was one of Williams’

distributors until he fell behind in payments of money owed

Williams for narcotics supplied by Porcelli and Guippone,

whereupon Harrison sought to deliver cocaine to Williams in

lieu of cash to repay his debt. For instance, on March 12,

1981, Harrison delivered 1'2 kilograms of cocaine to Wil-

liams, which proved to be unsatisfactory. Thereupon, on

March 15, 1981, he delivered almost 2 kilos of cocaine to

Williams. Williams was later overheard to say that on March

25, 1981, Harrison again delivered a kilogram of cocaine to

Williams. When arrested, Harrison had one of Williams’

phone numbers which he had obtained on a visit to the latter’s

apartment. A later search of Harrison’s premises and car un-

covered a sawed-off shotgun, hundreds of rounds of ammuni-

tion, some cocaine, and writings identified as heroin account-

ing sheets.

Onzelo Markum, Williams’ younger brother, also known as

“Junior,” was taped discussing with Williams sales and deliv-

eries of cocaine. For instance, on April 18, 1981, he advised

22a

Williams that he was bringing over “that girl” (code term for

cocaine) and arrived one-half hour later, turning the cocaine

over to Williams. His name was on Williams’ narcotics ac-

counting sheets. In addition to assisting his brother in the pur-

chase and sale of narcotics he exchanged large amounts of cash

proceeds ($30,000 to $40,000 a day according to Williams) at

midtown banks.

Eric Naiven played several roles in the conspiracy, including

that of narcotics tester and money launderer. When Agent

Mitchell made his initial purchase from Steward he was told

that he could use the back room of Nalven’s bar to test the

heroin sold. Although Nalven conceded purchasing cocaine

from Williams for personal use in small gram amounts for $100

to $200, on several occasions he visited Williams’ apartment

and received cocaine in quantities associated with dealing

rather than personal use, i.e., a purchase for $2,000 on one oc-

casion and on other occasions amounts of cocaine that could be

subdivided on others.

There was also evidence that Nalven acted as a money ex-

changer and narcotics-tester for Williams. The latter stated

on one occasion, in offering to pay $150 for every $10,000

laundered, that Nalven had been “getting rid of five or six

[thousand] for me a week.”” The tapes further revealed that at

times when Williams received narcotics from a supplier he

would ask “Eric” to test it and advise the supplier of the

results, and that Nalven showed Williams how to use a micro-

scope, an instrument Williams used to test cocaine for purity.

After Williams’ arrest his microscope was found to have traces

of cocaine on it. When arrested Nalven falsely told the DEA

agents that he never used cocaine.

The evidence against appellant Clarence (“Legs”) Haynes

was almost entirely hearsay: records taken from Williams’

trash referring to “Legs” along with others listed as narcotics

distributors; mention by Williams of Haynes as the person who

23a

used defendant Bobby James (who was acquitted) as a nar-

cotics courier; and Williams’ end of a conversation, purported-

ly with Haynes, in which Williams asked Haynes to tell Gabe

McMillan’ “about shirts (a code word for narcotics) that he

had passed.” The non-hearsay evidence against Haynes con-

sisted of a short phone conversation with Williams in which

the former asked “what's happening” and the latter replied

“ain’t nothing happening;” admissions by Haynes upon arrest

that he was known as “Legs,” and that he knew Williams and

Harrison and had spoken with them on the telephone but not

about narcotics; and an address book containing names of al-

leged drug traffickers and a narcotics price list, which was

found in an apartment he shared with James who testified that

the book belonged to him and that the entries were made by

him, not Haynes.

Appellant Willie Terry, who was tried separately before

Chief Judge Motley, does not challenge the sufficiency of the

evidence against him, which consisted of records of telephone

calls by Williams to Terry’s apartment; tape-recorded conver-

sations between the two regarding efforts to purchase nar-

cotics; records of “Terry” narcotics transactions found in Wil-

liams’ trash; vials containing cocaine residue found on Terry

when arrested; and a scale, small amount of marijuana and

business card with “Davis” (Williams’ alias) on it, all of which

were seized from his apartment during a search incident to the

execution of an arrest warrant.

Judge Owen, after evidentiary hearings, denied in reasoned

opinions defendants’ motions to suppress evidence derived

from the retrieval and search of Williams’ trash and the elec-

"McMillan, separately indicted, was convicted after a jury trial and sen-

tenced to a 3-year term of imprisonment by Judge Robert W. Sweet. His con-

viction was affirmed by summary order on July 2, 1982. United States v.

McMillan, 697 F.2d 300 (2d Cir. 1982).

24a

tronic surveillance of Williams’ apartment and telephone.

Likewise Chief Judge Motley, after an evidentiary hearing,

denied in a written opinion Terry’s motion to suppress the evi-

dence seized from his apartment.

DISCUSSION

A. CLAIMS COMMON TO ALL APPELLANTS

1. Searches of Williams’ Trash

(1] Williams contends that the warrantless searches by DEA

agents over a six-month period of his trash bags, which were

set out for collectioin in sealed opaque bags, violated his rea-

sonable expectation of privacy and that evidence so obtained

tainted the legality of the electronic surveillance order.* We

disagree.

In the absence of evidence indicating an intent by the

former owner to retain some control over or interest in dis-

carded trash, his placement of it for collection on a public side-

walk is inconsistent with the notion that he retains a privacy

interest in it. His act is one of abandonment. Abel v. United

States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668

(1960); United States v. Vahalik, 606 F.2d 99, 101 (5th Cir.

1979), cert. denied, 444 U.S. 1081, 100 S.Ct. 1034, 62

L.Ed.2d 765 (1980); United States v. Shelby, 573 F.2d 971,

73-74 (7th Cir.), cert. denied, 439 U.S. 841, 99 S.Ct. 132, 58

L.Ed.2d 139 (1978); Magda v. Benson, 536 F.2d 111, 112 (6th

Cir. 1976) (per curiam); United States v. Mustone, 469 F.2d

* Although all appellants join in Williams’ challenge to the legality of seiz-

ure of evidence from his trash, only Williams has standing to assert that the

searches violated the Fourth Amendment. Rakas v. Illinois, 439 U.S. 128,

133-34, 99 S.Ct. 421, 425-26, 58 L.Ed.2d 387 (1978).

25a

970, 972 (Ist Cir. 1972); United States v. Dzialak, 44] F.2d

212, 215 (2d Cir.), cert. denied, 404 U.S, 883, 92S.Ct. 215, 30

L.Ed.2d 165 (1971); but see People v. Krivda, 5 Cal.3d 357,

96 Cal. Rptr. 62, 486 P.2d 1262 (1971), remanded, 409 US.

33, 93 §.Ct. 32, 34 L.Ed.2d 45 (1972), affd on both state and

federal constitutional grounds, 8 Cal.3d 623, 105 Cal. Rptr.

521, 504 P.2d 457, cert. denied, 412 U.S. 919, 93 S.Ct. 2734,

37 L.Ed.2d 145 (1973).

[2] When plastic trash containers and their contents are

picked up by the collector and carted to a public waste dispos-

al area, common experience teaches that the former owner ob-

tains no implicit assurance that the trash will remain inviolate

or free from examination. Indeed, once the trash is discarded

the former owner rarely has any further interest in it other

than to be assured that it will not remain at his doorstep. In

the rare instance when he desires to preclude inspection by

others of private papers in his garbage he may do so by first

shredding or burning them or by hand-delivering the papers to

a garbage-grinding machine. We do not view the mere use of

taped opaque containers as indicating an intent to retain a

privacy interest; these containers, apparently the most

commonly-available type sold, are obviously designed to

assure tidiness in appearance rather than privacy.’ Such con-

tainers are hardly safety deposit boxes. In any event, even

though the presence of other circumstances may indicate an

intent to retain a privacy interest in trash (e.g., written restric-

tions on containers or retention of containers on private prop-

erty until collected), the circumstances in this case clearly

evidence abandonment by Williams of his trash. Accordingly,

we affirm the district court's denial of his motion to suppress

the evidence seized from the trash searches.

*Since items found in closed containers during a lawful search do not require

a separate warrant, United States v. Ross, . U.S. ___., 102 §.Ct. 2157, 72

L.Ed.2d 572 (1982), a fortiori, there is no requirement to obtain a warrant to

search sealed items that are discarded on a public street for collection.

26a

2. Challenges to Electronic Surveillance

in Williams’ Apartment

All appellants challenge on several grounds the court-au-

thorized electronic surveillance in Williams’ apartment. Their

first ground, that evidence derived from illegal trash searches

was used to obtain the eavesdropping order, is rejected for

reasons already stated and because the application for the

order disclosed probable cause independent of the trash-de-

rived evidence. See Franks v. Delaware, 438 U.S. 154,

171-72, 98 S.Ct. 2674, 2684-85, 57 L.Ed.2d 667 (1978).

(3) Appellants next contend (1) that the affidavit supporting

the original application for the room bugs was inadequate be-

cause it did not assert that all other less intrusive investigative

techniques were unlikely to succeed as is required by 18

U.S.C, §§ 2518/1) (c) and (3)(c),!° and (2) that the order

renewing the authorization for an additional 30 days was in-

valid because the supporting affidavit was a mere “boiler-

plate” repitition of the facts set forth in the earlier affidavit,

We hold that the affidavits were adequate. The original af-

fidavit disclosed the standard investigative procedures that

had been tried and explained why their continued use would

be unproductive. It explained that Williams rarely left his

apartment and would not meet with someone he did not

know; that a search of his apartment would not reveal his nar-

cotics stash which he kept nearby; and that the co-conspirators

“Title 18 U.S.C, § 2518(1)(c) provides that an application for an order

for interception of wire or oral communications shall include “a full and

complete statement as to whether or not other investigative procedures have

been tried and failed or why they reasonably appear to be unlikely to succeed

if tried or to be too dangerous.” Section 2518(3)(c) requires the judge in an

ex parte order authorizing the interception to determine on the basis of the

facts submitted by the applicant that “normal investigative procedures have

been tried and have failed or reasonably appear to be unlikely to succeed if

tried or to be too dangerous.”

27a

previously contacted, Jones and Steward,'! had become suspi-

cious and refused to deal further with undercover agents, The

affidavit further indicated the agents’ inability through physi-

cal surveillance to establish the significance of the meetings be-

tween the suspects; a record of their conversations was

therefore essential,

[4-6] An affidavit describing the standard techniques that

have been tried and facts demonstrating why they are no long:

er effective is sufficient to support an eavesdropping order

even if every other possible means of investigation has not been

exhausted. United States v. Todisco, 667 F.2d 255, 258-59 (2d

Cir. 1981), cert. denied, 455 U.S. 906, 102 S.Ct. 1251, 71

L.Ed.2d 444 (1982); United States v. Vazquez, 605 F.2d 1269,

1282 (2d Cir.), cert. denied, 444 U.S. 981, 100 S.Ct. 484, 62

L.Ed.2d 408 (1979) (quoting United States v. Hinton, 543

F.2d 1002, 1011 (2d Cir.), cert. denied, 429 U.S. 980, 97 S.Ct,

493, 50 L.Ed.2d 589 (1976)). Agents are not required to

resort to measures that will clearly be unproductive. When,

as here, a defendant (Williams) conducts his narcotics business

only on a face-to-face basis from his apartment, it is unneces-

sary for government investigators first to seek a wiretap before

applying for an eavesdropping order since a bug, not a wire-

tap, would provide the evidence sought. Since the factual jus-

tification for the order had not changed at the time when an

extension was sought, it was unnecessary to vary the specific

facts, admittedly accurate, in the renewal application,

Todisco, supra, 667 F.2d at 259,

Appellants next argue that the order should be invalidated

because it was signed by an Assistant Attorney General who

lacked authority, We disagree. On January 19, 1981, the last

day of the administration of President Carter, the then Attor-

'' Steward was charged in a separate indictment. Jones was an unindicted

co-conspirator.

28a

ney General Benjamin Civiletti executed Order No. 931-81

pursuant to 18 U.S.C. § 2516(1)'* designating the four As-

sistant Attorneys General in charge of the Criminal Division,

the Tax Division, the Office of Legal Counsel, and the Anti-

trust Division, in that order, to caercise the power of the At-

torney General, in his absence, to authorize appropriate ap-

plications for electronic surveillance by federal agencies. Each

designee was authorized to exercise the power in the event all

those listed ahead of him were “not in the District of Columbia

or. , , otherwise not available.”

Civiletti was replaced the following day, January 20, 1981,

by Attorney General William French Smith when the new ad-

ministration took office. On February 2, 1981, hold-over As-

sistant Attorney General Sanford M. Litvack, head of the

Antitrust Division and fourth on Civiletti’s priority list of

assistants, authorized an application for court-ordered elec-

tronic surveillance of Williams’ apartment. On February 27,

1981, Attorney General Smith issued his own designation

Order No. 934-81, which did not expressly redesignate the au-

thorization of his predecessor.

(7) Appellants first contend that the Litvack authorization

on February 2 was inadequate because it failed to recite the

necessary precondition to Litvack’s exercise of power, namely

that the three other Assistant Attorneys General with higher

priority in the Civiletti order were absent or otherwise

unavailable. We reject this contention. Litvack, a named

designee whose high office gave him statutory power to au-

thorize electronic surveillance orders, is presumed to have

properly exercised that power and the condition precedent is

presumed to have been met unless the defendants offer evi-

'*Title 18 U.S.C, § 2516(1) provides that “[t]he Attorney General, or any

Assistant Attorney General specially designated by the Attorney General, may

authorize an application to a Federal judge... . for. . . an order authorizing or

approving the interception of wire or oral communications... .”

29a

dence, apart from mere conjecture or speculation, to rebut this

presumption. United States v. Todisco, 667 F.2d at 259;

United States v. Jabara, 618 F.2d 1319, 1327 (9th Cir.), cert.

denied, 446 U.S. 987, 100 S.Ct. 2973, 64 L.Ed.2d 845 (1980);

United States v. Turner, 528 F.2d 143, 151 (9th Cir.), cert. de-

nied, 423 U.S. 996, 96 S.Ct. 426, 45 L.Ed.2d 371 (1975). No

such evidence was offered in this case.

[8, 9] Appellants further claim that Order No. 931-81 was

invalid because Assistant Attorney General Litvack’s power as

a designee of Attorney General Civiletti had expired when Mr.

Civiletti left office and was no longer responsive to the

political process as required by United States v. Giordano, 416

U.S. 505, 520, 94 S.Ct. 1820, 1829, 40 L.Ed.2d 341 (1974).

This claim is meritless. Unlike Giordano, there is no sugges-

tion here that Assistant Attorney General Litvack did not sign

the order approving the application or that he was not special-

ly designated by Mr. Civiletti. Administrative continuity re-

quires that the designation by an outgoing Attorney General of

Assistants to authorize electronic surveillance remain valid at

least for a reasonable time after the Attorney General leaves

office, even without an express redesignation by his successor.

Todisco, 667 F.2d at 259 (citing In re Weir, 520 F.2d 662, 667

(9th Cir. 1975); United States v. Mallory, 507 F.Supp. 99, 102

(D.Md. 1981). Otherwise the power of the office of Attorney

General would in this important respect grind to a halt when

an incumbent Attorney General departed and thereafter re-

main paralyzed until his successor was sworn in and acted.

That the change in office resulted from a change in adminis-

tration, with a possibly different electronic surveillance

policy, does not alter the principle of administrative continuity

when, as here, the incumbent Attorney General on February

27, 1981, impliedly ratified the designation of his predecessor,

thereby eliminating the possibility that prior electronic sur-

veillance policy could escape review by a politically account-

able official of the current administration.

30a

[10] Appellants next argue that the two eavesdropping de-

vices (“bugs”), which were placed in the downstairs living

room of Williams’ duplex apartment, intercepted conversa-

tions that occurred upstairs in the apartment. Appellants

argue that the interception of upstairs conversations violated

both Judge Ward’s order, which authorized interception of

conversations “from the premises known as the first floor of

duplex Apartment J,” and the Fourth Amendment, which re-

quires that search warrants “particularly describ[e] the place

to be searched.”

In the district court appellants originally contended that the

bugs were unlawfully placed upstairs in violation of Judge

Ward's order. They have abandoned this claim in the face of

overwhelming contrary evidence. They now argue that the

eavesdropping tapes should have been suppressed on the

ground that since noises from Williams’ TV set, claimed to

have been at all times upstairs, and comments claimed to have

been uttered upstairs were audible on the tapes the govern-

ment must have violated the eavesdropping order by installing

a bug in a downstairs phone with a long extension cord that

might be carried upstairs and thus pick up conversations there.

Alternatively they argue that even if upstairs noises were over-

heard by accident the entire tapes should have been sup-

pressed. We reject both arguments.

After extensive oral hearings, in which Williams and the

agents who installed the bugs testified, Judge Owen found

that there were no bugs installed upstairs, that a bug with a

standard 10-15 foot range was installed downstairs in a stand-

ard beige phone, described by the installer, Officer Meyers, as

having a 7-8 foot cord, and that this installation was in com-

pliance with Judge Ward's order. Although DEA agents,

when they entered the apartment months later on May 31,

1981 (after the narcotics ring was broken by arrests), noted

that the downstairs beige phone now had a 12 to 15 foot cord,

3la

this could not be attributed to the government (since the of-

ficers installed the phone on a 7 to 8 foot cord) but may have

been the work of Williams, who admittedly extended the cord

of one of the phones. Although Williams testified that the ex-

tension installed by him was not on the beige phone, the court

stated that “the tortuous testimony of . . . Williams I utterly

reject as false.” These findings are not clearly erroneous.

[11-13] In any event, since Judge Ward’s order authorized

interception of narcotics-related conversations “from” the

downstairs it permitted the investigators to intercept such

communications as might be audible by an unenhanced bug in

the living room, even though they originated from the bed-

room and could be heard downstairs because of the open stair-

way between the rooms.'? Moreover, the faint television and

other noises claimed (but not shown) to have emanated from

the bedroom were insignificant. Judge Owen found that of

nearly 200 taped conversations introduced into evidence, none

appeared to have originated from upstairs, thus confirming

evidence that the investigating agents took reasonable steps to

limit interception to narcotics-related conversations originat-

ing in the living room downstairs. This satisfied the standard,

which is that agents observe reasonable safeguards against ex-

cessive intrusion. Scott v. United States, 436 U.S. 128, 139-43,

'9Cf. United States v. Sellaro, 514 F.2d 114, 124 (8th Cir. 1973), cert.

denied, 421 U.S. 1013, 95 S.Ct. 2419, 44 L.Ed 2d 681 (1975) (order author-

izing interception of communications from telephones encompasses authori-

zation to intercept both incoming and outgoing calls).

The government gave the agents monitoring the wiretap at Willams

apartment instructions to intercept only conversations in the living room.

Judge Owen ruled that the government's “overly restrictive interpretation”

of the scope of the agents’ authority did not bind the court in construing

Judge Ward's order. Even assuming the agents were under a statutory duty

to minimize recordings of conversations beyond the scope of the authoriza-

tion, the trial court found that they did so out of an excess of caution. See

18 U.S.C. § 2518(5).

32a

98 S.Ct. 1717, 1724-26, 56 L.Ed.2d 168 (1978); United States

v. Tortorello, 480 F.2d 764, 784-85 (2d Cir.), cert. denied, 414

U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973); see also, United

States v. Rizzo, 491 F.2d 215, 217 n.7 (2d Cir.), cert. denied,

416 U.S. 990, 94 S.Ct. 2399, 40 L.Ed.2d 769 (1974).

Our holding does not convert the electronic surveillance

order into a general warrant in violation of the Fourth Amend-

ment requirement that search warrants particularly describe

the things to be seized. Here the order specifically authorized

the interception of audible narcotics-related conversations by

named individuals and some unknown within a designated

area. This satisfied Fourth Amendment requirements. See

Steele v. United States, 267 U.S. 498, 503-04, 45 S.Ct. 414,

416-17, 69 L.Ed. 757 (1925), incorporated in Title III, 18

U.S.C. §§ 2518(1)(b)(i)-(iv) and 2518(4)(a)-(e).

3. Custody of the Original Tapes

[14] We find equally meritless appellants’ contention that in

violation of Fed.R.Crim.P. 16(a)(1)(C)'* and their constitu-

tional rights to confrontation and due process they were

denied access to the original tape recordings made from Wil-

liams’ apartment. Appellants were given copies of the tapes

which had been enhanced to promote audibility. In addition,

the prosecutor made the original tapes available to appellants

and their experts for analysis in his office. However, appel-

lanits declined this offer, seeking instead to analyze the original

tapes outside the government's custody but with a government

‘*Rule 16(a)(1)(C) provides:

“Upon request of the defendant the government shall permit the de-

fendant to inspect and copy. . . tangible objects. . . which are within

the possession, custody or control of the government, and which are

material to the preparation of his defense or are intended for use by the

government as evidence in chief at the trial... .”

33a

agent present. In the absence of any plausible evidence in-

dicating an alteration or distortion of what was recorded on

the tapes and in light of the trial court's finding of authenticity

and accuracy, the request to remove this fragile evidence from

the government’s custody was unwarranted. United States v.

Fuentes, 563 F.2d 527, 532 (2d Cir.), cert. denied. 434 U.S.

959, 98 S.Ct. 491, 54 L.Ed.2d 320 (1977).'5

4. The Court’s “Community Impact” Instruction

[15] Over defense objection, the district court charged the

jury:

“If, ladies and gentlemen, you fail to find beyond a rea-

sonable doubt that the law has been violated as to any

charge by a defendant, you should not hesitate for any

reason to return a verdict of acquittal. If, on the other

hand, you should find that the law has been violated as

charged by a defendant in any count, you should not hesi-

tate because of sympathy of other reason to return a ver-

dict of guilty as a clear warning that a crime of this char-

acter may not be committed with impunity. The public

is entitled to be insured of this.” (Emphasis added.)

Appellants contend that the italicized portion amounted to

impermissible judicial advocacy, Quercia v. United States, 289

U.S. 466, 470-71, 53 S.Ct. 698, 699, 77 L.Ed. 1321 (1933):

United States v. Araujo, 539 F.2d 287, 290 (2d Cir.), cert. de-

'* Even if, as Guippone and Porcelli claim, their conversations relating to

gambling had been omitted from the recordings played to the jury, such

omissions would not impugn the integrity of the tapes that were heard by the

jury, which related to narcotics. Moreover, appellants made no objection at

trial that the recordings were unfairly incomplete.

34a

nied, 429 U.S. 983, 97 S.Ct. 498, 50 L.Ed.2d 593 (1976),

diverting the jury’s focus from consideration of individual

proof to questions of public policy. Cf. United States v.

Cheung Kin Ping, 555 F.2d 1069, 1073-74 (2d Cir. 1977).

Although we long ago held that the giving of a “community

impact” instruction was not reversible error, United States v.

Witt, 215 F.2d 580, 585 n.4 (2d Cir.), cert. denied, 348 U.S.

887, 75 S.Ct. 207, 99 L.Ed. 697 (1954), we have disapproved

of similar statements when made by a prosecutor as tending to

divert the jury from consideration of the evidence, United

States v. Barlin, 686 F.2d 81, 93 (2d Cir. 1982). For the same

reason we find no useful purpose to be served by the chal-

lenged instruction.'® However, since the evidence in the pres-

ent case was overwhelming against all defendants except

Haynes, whose conviction is reversed on other grounds, and

the instruction received no prominence, the error was harm-

less and did not deprive the defendants of a fair trial. Barlin,

supra, 686 F.2d at 93; United States v. Modica, 663 F.2d 1173,

1182 (2d Cir. 1981), cert. denied, ___ U.S. ___,, 102 S.Ct.

2269, 73 L.Ed.2d 1284 (1982); United States v. Birnbaum, 373

F.2d 250, 263 (2d Cir.), cert. denied, 389 U.S. 837, 88 S.Ct.

53, 19 L.Ed.2d 99 (1967).

‘The “community impact” charge cannot be equated with the “province

of the jury” charge under which the jury is told:

“You are to perform this duty [to try the issues of fact] without bias or

prejudice as to any party. The law does not permit jurors to be gov-

erned by sympathy, prejudice, or public opinion. Both the accused

and the public expect that you will carefully and impartially consider

all the evidence in the case, follow the law as stated by the Court and

reach a just verdict regardless of the consequences.”

This charge has been approved by us as “standard” and proper, United

States v. Ramirez, 482 F.2d 807, 816 (2d Cir.), cert. denied, 414 U.S. 1070,

94 §.Ct. 581, 38 L.Ed.2d 475 (1973). In contrast to the “community

impact” instruction, it directs the jury not to consider public opinion. See

1 J. Devitt & C. Blackmar, Federal Jury Practice and Instructions, § 11.03,

at 293 (3d ed. 1977).

35a

B. ADMISSION OF EVIDENCE OF DEFENDANTS’ REFUSAL

TO FURNISH PALM PRINTS

Four appellants (Porcelli, Guippone, Harrison and

Markum) contend that the trial judge erred in admitting testi-

mony as to their refusal to supply palm prints as evidence of

consciousness of guilt without permitting them to elicit that

they had refused because they first wanted advice of counsel.

Appellants argue that exclusion of evidence of their explana-

tion violated the “doctrine of completeness” as reflected in

Fed.R.Evid. 106!" because the evidence was admissible as

proof of their “state of mind,” Fed.R.Evid. 803(3).

On two occasions the government attempted pursuant to

court order to obtain palm prints from Porcelli, Guippone,

Harrison, Markum, and Williams, to determine whether any

of their prints matched a latent palm print found on a paper

bag containing heroin which was seized on the day of their ar-

rests. Appellants refused, stating that they would not supply

prints in the absence of their lawyers. At trial the government

sought to introduce the refusal as evidence of appellants’ con-

sciousness of guilt and to explain why the government's finger-

print expert had not identified the latent print after that fact

had been brought out by defense counsel. Appellants objected

to the admission of the evidence unless they were permitted to

elicit that they had contemporaneously expressed the desire to

consult counsel. The district court ruled that the latter asser-

tions were inadmissible hearsay and unnecessary for a fair un-

derstanding of the evidence of refusal, since the government

'* Fed.R.Evid. 106 provides:

“When a writing or recorded statement or part thereof is introduced

by a party, an adverse party may require him at that time to introduce

any other part or any other writing or recorded statement which ought

in fairness to be considered contemporaneously with it.”

36a

might “take prints as a matter of right[{ ],” and appellants had

“no legal basis of any kind to refuse prints.” The court indi-

cated that the defendants could offer their explanation by

their own testimony. At the close of trial the court instructed

the jury that the refusal to supply palm prints could provide

evidence of the defendants’ consciousness of guilt.

[16] The government has a right to obtain prints pursuant to

a lawful custodial arrest, see United States v. Doe, 457 F.2d

895, 898-99 (2d Cir. 1972), cert. denied, 410 U.S. 941, 93

S.Ct. 1376, 35 L.Ed.2d 608 (1973), without the presence of

counsel, United States v. Ash, 413 U.S. 300, 313, 93 S.Ct.

2568, 9575 |31 L.Ed.2d 619 (1973) (no right to counsel at post-

indictment photograph display for purposes of allowing a wit-

ness to attempt an identification), and appellants’ refusal to

provide prints\was admissible as evidence of consciousness of

guilt. UnitedStates v. Nix, 465 F.2d 90, 93-94 (5th Cir.),

cert. denied, 409 U.S. 1013, 93 S.Ct. 455, 34 L.Ed.2d 307

(1972).

[17] Testimony regarding appellants’ statements that they

desired counsel would be excludable as hearsay, Fed.R.Evid.

802, unless admissible under an exception to the hearsay rule.

Admission was not mandated by Fed.R.Evid. 106 (doctrine of

completeness) since that rule applies only to writings, not oral

statements; in any event Rule 106 does not render admissible

evidence that is otherwise inadmissible. However, the

evidence was admissible under the exception to the hearsay

rule provided by Fed.R.Evid. 803(3),'* since appellants’ con-

temporaneous statements were relevant to the issue of their

state of mind, i.e., whether they had a consciousness of guilt in

refusing to furnish the prints or were acting in good faith.

'® Fed. R.Evid. 803(3) excepts from the Hearsay Rule “{a} staternent of the

declarant’s then existing state of mind... .”

It was therefore error to exclude the proof which appellants

sought to elicit. However, the error was harmless and did not

affect appellants’ substantial rights in view of the overwhelm-

ing proof of their guilt, Fed.R.Crim.P. 52(a). Moreover, any

prejudice was minimized by the fact that, notwithstanding the

court’s evidentiary ruling, defense counsel, in defiance of that

ruling and despite the court’s admonitions, sought by ques-

tions to convey to the jury that appellants had refused to fur-

nish prints until they had advice of counsel.

C. INpbIvipDUAL CLAIMS OF PORCELLI AND GUIPPONE

[18] Porcelli and Guippone contend that the evidence was

insufficient to support their convictions of substantive offenses

(possession on March 6, 1981, of three-quarters of a kilogram

of cocaine with intent to distribute (Count Seven) and posses-

sion of one-eighth of a kilogram on March 16, 1981 (Count

Nine)). In view of the overwhelming evidence of guilt this

claim is rejected. Examined in the light most favorable to the

government, Glasser v. United States, supra, 315 U.S. at 80,

62 S.Ct. at 469; United States v. Stirling, 571 F.2d 708, 734

(2d Cir.), cert. denied, 439 U.S. 824, 99 S.Ct. 93, 58 L.Ed.2d

116 (1978), the record shows that on March 6, 1981, Porcelli

and Guippone agreed in response to Williams’ request for

“rock” (cocaine) to send him “three-quarters” of a kilogram of

“Peruvian flake” (cocaine) they had received from a friend,

which had come out “like feathers” (good quality). Similarly,

on March 16, 1982, Porcelli agreed with Williams to “bring

down the eighth” (eighth of a kilogram). The jury was enti-

tled from the surrounding circumstances, including Williams’

expressed need for heroin on the previous day (March 15),

and his statement a day later (March 17) that he had paid

$30,000 for “boy” (code name for heroin) the night before, to

58a

find beyond a reasonable doubt that the substance purchased

from Porcelli on March 16 was heroin. There was also ample

evidence that the quantities were kilograms, not grams for

personal use, and that the crimes occurred within the South-

ern District of New York. United States v. Panebianco, 543

F.2d 447, 455 (2d Cir. 1976), cert. denied, 429 U.S. 1103, 97

§.Ct. 1129, 51 L.Ed.2d 553 (1977).

[19] Their “boilerplate claim” that the proof disclosed mul-

tiple conspiracies rather than the single conspiracy charged,

see United States v. McGrath, 613 F.2d 361, 367 (2d Cir.

1979), cert. denied, 446 U.S. 967, 100 S.Ct. 2946, 64 L.Ed.2d

§27 (1980), must also be rejected. The trial court’s charge on

conspiracy followed that approved by us, United States v.

Tramunti. 513 F.2d 1087, 1107 (2d Cir.), cert. denied, 423

U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975). The question of

multiple or single conspiracies is one of fact, United States v.

Alessi, 638 F.2d 466, 472 (2d Cir. 1980). Accepting the proof

as we must in the light most favorable to the government,

United States v. Murray, 618 F.2d 892, 902 (2d Cir. 1980);

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

Cir. 1976), cert. denied, 430 U.S. 917, 97 S.Ct. 1330, 51

L.Ed.2d 595 (1977), the evidence was sufficient to permit the

jury to find the existence of a single, large-scale, “chain-type”

narcotics operation whose central link was Williams’ apart-

ment on East 89th Street.

Porcelli and Guippone agreed to further the aims of

Williams’ narcots enterprise by supplying him with large

quantities of heroin and cocaine for which they received large

sums of money. Thev were aware of the size of the middle-

man Williams’ operation, United States v. Armedo-Sarmiento,

545 F.2d at 790; United States v. Panebianco, 543 F.2d at 453,

and knew their supply of narcotics would not stop with him.

Indeed, they frequently discussed the fortunes of one of his dis-

tributors in the venture, Harrison, who was late in his pay-

39a

ments. Thus, Porcelli and Guippone depended on Williams to

collect money due them from Harrison, and Williams depend-

ed on Porcelli and Guippone to keep him in steady supply.

When Porcelli and Guippone refused to come to Williams’

apartment for five weeks, suspecting danger, Williams could

not obtain heroin, The three exchanged reciprocal warnings,

reinforcing the existence of their interdependence and mutual

assistance, thus warranting treatment of their dealings as a

single business venture. United States v. Tramunti, supra,

513 F.2d at 1106. The temporary hiatus that occurred while

the three waited for the danger to pass did not transform the

single ongoing conspiracy into two conspiracies since there was

nothing to indicate that any of them viewed their mutual deal-

ings as having terminated. United States v. Panebianco,

supra, 543 F.2d at 452. On the contrary, during the period

when Porcelli and Guippone were lying low, Williams made

repeated efforts, including a meeting with Porcelli, to arrange

alternative meeting places to honor Porcelli and Guippone’s

demand, which was not that they cease doing business togeth-

er, but that they meet in the Bronx. Similarly, the record is

clear that appellants Porcelli and Guippone never withdrew

from the conspiracy; they mere’) wanted to switch its locale.

Consequently, their claim that statements of co-conspirators

after March 16, 198] should have been excluded is frivolous.

United States v. Schwenoha, 383 F.2d 395, 396-97 (2d Cir.

1967), cert. denied, 390 U.S. 904, 88 S.Ct. 817, 19 L.Ed.2d

869 (1968); United States v. Borelli, 336 F.2d 376, 388-89 (2d

Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13

L.Ed.2d 555 (1965).

[20] We also reject as meritless Porcelli’s contention that

Judge Owen erred in ruling that he would, if Porcelli took the

stand, admit Porcelli’s 20-year old narcotics conviction on the

issue of intent and guilty knowledge, Fed.R.Evid. 404(b). The

ruling was correct in view of the claim of Porcelli’s counsel

40a

in his opening staternent that the telephone conversations with

Williams related to gambling, not narcotics, and Porcelli’s

refusal to remove this issue from dispute by stipulating that the

terms used in the taped conversations referred to narcotics.

United States v. Reed, 639 F.2d 896, 906-07 (2d Cir. 1981);

United States v. Figueroa, 618 F.2d 934, 941-43 (2d Cir.

1980); United States v. Mohel, 604 F.2d 748, 753-55 (2d Cir.

1979),

Porcelli and Guippone’s remaining contentions are without

merit. We therefore affirm their convictions.

D. Harrison's Claims

(21, 22) Harrison contends that he was deprived of a fair

trial because of prosecutorial misconduct. His first claim is

that when Agent Hubert Shockley hesitated in making an in-

court identification of him as the person seen entering

Williams’ apartment on March 15, 1981, to arrange delivery of

two kilograms of cocaine, the prosecutor aided Shockley by us-

ing his eyes to point toward Harrison at the counsel table. Both

the prosecutor and Shockley denied any such improper

collaboration. Moreover, the court found first that any hesita-

tion in making the identification was attributable to the fact

that Harrison's face was blocked from the witness by his coun-

sel's open briefcase. Second, the court found that any change

in the prosecutor's facial expression was caused by his astonish-

ment when, just as the witness was looking for Harrison, de-

fendant Haynes inexplicably rose to his feet, directing at-

tention away from Harrison to himself. Since the question of

what occurred in the courtroom in the presence of judge and

jury is one of fact, we fail to find sufficient support, in view of

the trial judge's comments, for the misconduct claim. In any

event, there was abundant other independent evidence that

dla

Harrison was the speaker in the March 15 conversation with

Williams regarding the delivery of cocaine.'* Under the cir-

cumstances we also reject the claim that the trial judge abused

his discretion in ordering Harrison after the incident to give a

voice exemplar.

(23] Nor is there any merit in the claim that the prosecutor

acted improperly in questioning on cross-examination Harri-

son's “voice expert” witness, Louis Gerstman, regarding prior

occasions when his testimony in other cases had been criticized

by the court as unworthy of belief. Proof that a judge of the

District of Columbia Superior Court before whom Gerstman

had testified as an expert had found that Gerstman had

“guessed under oath” was probative of the weight to be ac-

corded to his testimony, Fed.R.Evid. 608(b), 613(a).2°

(24, 25] Harrison's claim that the court erred in admitting

identification testimony by Frank Lucas, a three convicted

narcotics dealer, borders on the frivolous. The evidence was

relevant to establish Harrison's residence, a material fact, and

'* This evidence included testimony of another government agent who had

spoken to Harrison on the day of his arrest and identified the voice in the

March 15 conversation as that of Harrison. Harrison also admitted that he

was known as “Harry,” the name by which he was addressed by Williams at

their March 15 meeting.

* Fed. R.Evid. 608(b) provides in relevant part:

“Specific instances of the conduct of a witness, for the purpose of at-

tacking. . . hiscredibility,. . . may. . . in the discretion of the court,

if probative of truthfulness or untruthfulness, be inquired into on cross-

examination of the witness (1) concerning his character for truthfulness

or untruthfulness... .”

Fed.R.Evid. 613(a) provides;

“In examining a witness concerning a prior statement made by him,

.. . the statement need not be shown nor its contents disclosed to him

at that time, but on request the same shall be shown or disclosed to op-

posing counsel.”

42a

to identify his voice on the March 15, 1981 tape after Harrison

had refused to stipulate that he was the speaker whom Wil-

liams greeted as “Harry.” Lucas’ allegedly prejudicial testi-

mony regarding his own sordid history was elicited by Harri-

son's own counsel, over the government's objection. Harrison

thus waived any possible claims based on the prosecutor's ref-

erence to the testimony in summation by his failure to object.

United States v. Clemente, 640 F.2d 1069, 1081 (2d Cir.

1981), cert. denied, 454 U.S. 820, 102 S.Ct. 102, 70 L.Ed.2d

91 (1981).

We find no merit in Harrison's other contentions. His con-

viction accordingly is affirmed,

E. MarkuM’s CLAIMS

(26, 27] Markum claims that the testimony of the govern-

ment witness Frank Lucas regarding Lucas’ own narcotics

history and attempts to bribe state court judges, which was ad-

duced on cross-examination by Harrison's counsel over govern-

ment objection, should have been excluded under Fed.R.Evid.

403 on the ground that its prejudicial impact outweighed its

probative value, or that a limiting instruction as to Markum

should have been given under Fed.R.Evid. 105, or a severance

granted under Fed.R.Crim.P. 14. The claim is meritless.

Lucas’ testimony linked Harrison to the conspiracy. A limit-

ing instruction was unnecessary since the impeaching testi-

mony brought out on cross-examination related exclusively to

Lucas and could not possibly have been attributed by the jury

to Markum or any other defendant. Moreover, any possible

error would have been harmless beyond a reasonable doubt in

view of the abundant independent evidence of Markum’s

guilt, particularly his frequent and highly incriminating con-

versations with Williams about narcotics.

43a

[28] We also reject Markum’s claim that the trial judge erred

in considering Markum’s perjured testimony in imposing sen-

tence. United States v. Grayson, 438 U.S. 41, 50-51, 98 S.Ct.

2610, 2615-16, 57 L.Ed.2d 582 (1978). His conviction is ac-

cordingly affirmed.

F. NALVEN’s CLAIMS

Relying mainly on Edwards v. Arizona, 451 U.S. 477,

484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981),

Nalven claims that the court erred in admitting a false

exculpatory statement made by him upon his arrest. He

asserts that the interrogation violated his Sixth Amendment

right to counsel.

DEA agents, after arresting Nalven, read him his rights

under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694 (1966), and asked him whether he wished to

waive them, to which he replied that he did not. He did not

request a lawyer. Some 40 minutes later, at DEA headquart-

ers, an Assistant U.S. Attorney again read to Nalven his Miran-

da rights and asked him if he had ever taken drugs. He replied

that he had not. When further interrogation was attempted

he responded that he would have nothing to say until he spoke

with an attorney, whereupon questioning ceased. At trial, in

rebuttal to Nalven’s testimony that he bought small amounts

of cocaine as a recreational user of cocaine, not a co-conspira-

tor, United States v. Swiderski, 548 F.2d 445, 450 (2d Cir.

1977), the government sought to impeach him by introducing

his earlier answer. The trial court concluded that in giving

this answer Nalven knowingly waived his rights until he decid-

ed not to talk further before consulting counsel. We agree.

(29, 30] Edwards v. Arizona, supra, held only that it was

impermissible to infer a waiver by an accused of his Sixth

Amendment right to counsel after he “has clearly asserted his

44a

right to counsel,” 451 U.S. at 485, 101 S.Ct. at 1885. Further

interrogation would then be inconsistent with Miranda. How-

ever, unless and until the accused asks for a lawyer he may

waive his procedural Miranda rights, see Michigan v. Mosley,

423 U.S. 96, 104n.10, 96S.Ct. 321, 326 n.10, 46 L.Ed.2d 313

(1975); id. at 109-11, 96 S.Ct. at 329-30 (White, J., concurr-

ing). Prior to the accrual of the right to counsel, the standard

for waiver is whether under the facts and circumstances of the

case, including the accused’s background and conduct, he un-

derstands the right in question and voluntarily intends to relin-

quish it. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019,

1023, 82 L.Ed. 1461 (1938).

(31) In the hearing as to the voluntariness of Nalven’s state-

ment, Nalven acknowledged that when he was read his rights

by the Assistant United States Attorney he understood each

one of them. He understood that he did not have to answer

any questions, that anything he said could be used against

him, and that he had a right to have an attorney before pro-

ceeding any further. Nalven confirmed, too, that he had ac-

knowledged understanding those rights at the time he was ad-

vised of them. Since Nalven’s rights were scrupulously

respected at every stage, with interrogation terminated im-

mediately upon his stating that he wanted to consult a lawyer,

and there is no suggestion that he was subjected to lengthy

questioning or other improper tactics, the finding of a waiver

with respect to his statement concerning his use of narcotics

must be upheld. Michigan v. Mosley, supra, 423 U.S. at

105-06, 96 S.Ct. at 327.

(32) In any event, even if the admission of the false exculpa-

tory statement had been error it would have been harmless

beyond a reasonable doubt, since the statement formed but a

minuscule part of the evidence against Nalven, which includ-

ed repeated purchases of substantial amounts of cocaine from

Williams, statements referring to Nalven’s role as a tester and

45a

money launderer, and direct evidence of his assistance to

Williams in the use of the microscope to examine cocaine.

Nalven also claims that the trial judge erred in admitting in-

to evidence his licensed gun, a Walther PPK 9 millimeter

pistol, and 300 rounds of hollowed out “dum-dum” bullets

seized from his basement office at the times of his arrest. We

disagree.

(33, 34] The trial court’s determination that the probative

value of admission of a weapon outweighs the danger of unfair

prejudice will be upheld unless arbitrary or irrational. United

States v. Robinson, 560 F.2d 507, 514-15 (2d Cir. 1977), cert.

denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978).

The government charged that Nalven let his bar be used for

substantial narcotics transactions. Before the admission of the

weapon, DEA agents testified that the bar was the site of their

initial heroin purchase from Steward, that the agent was told

then that the bar was “safe” and that the back room could be

used to count money and check the “dope,” and that the bar

was later used by Nalven to test drugs for Williams. That the

gun and ammunition were found in the basement rather than

in the bar could have supported the conclusion that Nalven in-

tended their use for protection, not of his bar, but of other

business. While the possession of a licensed gun, standing

alone, might have no relevance to illegal narcotics business,

here the location of the weapon and the special type of am-

munition found with it (deadly hollowed out “dum-dum” bul-

lets) supported the inference that these were instruments of the

narcotics trade. See United States v. Wiener, 534 F.2d 15, 18

(2d Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 66, 50 L.Ed.2d

80 (1976).

Under the circumstances we cannot say that the trial judge’s

determination was irrational. Moreover, since the jury was

aware that Nalven had a license for the gun there was less

danger that jurors would be tempted to punish him for pos-

46a

session of the gun rather than for the offense charged. See

Robinson, 560 F.2d at 513-14.

G. Terry’s Claims

(35) Terry prudently does not question the sufficiency of the

overwhelming evidence of his guilt. However, he does claim

that the trial court erred in failing to suppress the set of scales

(of the type used to weigh narcotics being cut or packaged),

some marijuana, and a business card, all of which were seized

from his apartment during the execution of a warrant for his

arrest. Terry argues that the police lacked sufficient reason to

believe that he was at home and therefore they could not law-

fully enter his apartment. Payton v. New York, 445 U.S. 573.

602-03, 100 S.Ct. 1371, 1388, 63 L.Ed.2d 639 (1980). Because

those items formed part of the basis for the subsequent issu-

ance of a warrant for the search of his apartment, which un-

covered other incriminating evidence, he contends that the

search warrant was tained. Terry also claims that the police

extended their stay beyond the time necessary to secure the

premises and that the seizure of the business card, which oc-

curred some 15-20 minutes after the agents’ arrival on the

premises was invalid. We disagree.

Armed with a valid arrest warrant, the agents had the right

to enter the Terry apartment if they had a reasonable basis for

believing Terry was there. Payton v. New York, 445 U.S. at

602-03, 100 S.Ct. at 1388; United States v. Spencer, 684 F.2d

220, 222-23 (2d Cir. 1982). They had sufficient information

to justify their belief in Terry’s presence. The telephone at the

apartment was listed to Doris Terry. A man named Terry had

spoken to Williams from that apartment. When the agents ar-

rived at the apartment building, a 12-year old boy wearing a

shirt with the name “Terry” on it told them his father and

47a

mother lived in the apartment and did not indicate that his

father was not at home. Moreover, the agents arrived at the

apartment at 8:45 A.M. on a Sunday morning, a time when

they could reasonably believe that Terry would be home. We

have rejected the contention that the police must first conduct

a thorough investigation to obtain evidence of an arrestee’s ac-

tual presence before entering his residence. United States v.

Manley, 632 F.2d 978, 984 (2d Cir. 1980), cert. denied, 449

U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981).

[36] Once lawfully in the apartment the agents were en-

titled to make a limited security check of the premises, id., 632

F.2d at 986; United States v. Gomez, 633 F.2d 999, 1008 (2d

Cir. 1980), cert. denied, 450 U.S. 994, 101 S.Ct. 1695, 68

L.Ed.2d 194 (1981). The crucial incriminating items — the

scale, marijuana, and business card — were lawfully seized

during the check because they were within the officers’ plain

view. Washington v. Chrisman, 455 U.S. 1, 5-6, 102 S.Ct.

812, 815-16, 70 L.Ed.2d 778 (1982); Spencer, supra, 684 F.2d

at 224. As long as agents did not enter because they had ad-

vance knowledge of these items, their discovery was inadver-

tent. See United States v. Liberti, 616 F.2d 34, 37 (2d Cir.),

cert. denied, 446 U.S. 952, 100 S.Ct. 2918, 64 L.Ed.2d 808

(1980). Terry argues that the scale could not have been in

plain view because the DEA agent who seized it had to walk

over to the box and look into it before determining that the box

contained a scale. However, since the outside of the box itself,

which was in plain view, bore the name “OHAUS,” the name

of a balance scale frequently used in narcotics dealing, and the

open box revealed part of the scale with white powder residue

on it, the agent's seizure of it was lawful. See United States v.

Mannino, 635 F.2d 110, 115 (2d Cir. 1980).

[37] After the initial pass-through of the apartment, and the

discovery of the marijuana and scale, the agents were entitled

to remain on the premises to secure the apartment from the

48a

destruction of evidence, United States v. Manley, 632 F.2d at

987, and to request the assistance of Terry's wife in locating

him. The plain view seizure of the business card, which oc-

curred during this period, was thus lawful. Accordingly

Terry's conviction is affirmed.

H. INSUFFICIENCY OF THE EVIDENCE AGAINST HAYNES

Haynes claims that since there was insufficient proof of his

participation in the alleged conspiracy the trial court erred in

admitting against him Williams’ out-of-court hearsay state-

ments and that the non-hearsay evidence against him was in-

sufficient to permit the jury to find him guilty of conspiracy of

the substantive charges against him. We agree.?!

[38] Before a jury may consider against a defendant a con-

spiracy count that rests in part on hearsay statements of an al-

leged co-conspirator, the trial judge must be satisfied by a fair

preponderance of the independent non-hearsay evidence that

the defendant was in fact a member of the conspiracy. United

States v. Cicale, 691 F.2d 95, 103 (2d Cir. 1982); United States

v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969), cert. denied,

397 U.S. 1028, 90 S.Ct. 1276, 25 L.Ed.2d 539 (1970). Without

the requirement of independent non-hearsay corroboration,

co-conspirator hearsay “would lift itself by its own bootstraps

to the level of competent evidence,” Glasser v. United States,

315 U.S. 60, 74-75, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942),

and thus assume the conclusion to be proven, in this case

Haynes’ membership in the conspiracy.

*' Since we find this issue dispositive it is unnecessary for us to consider

Haynes’ other claims, e.g., that he was denied a fair trial by reason of the

prosecutor's improper comments, or to remand for correction of his sentence

which the government concedes to be improper by reason of the unauth-

orized imposition of a lifetime parole. Bifulco v. United States, 447 U.S.

381, 100 §.Ct. 2247, 65 L.Ed.2d 205 (1980).

49a

[39, 40] The standard for independent proof of participa-

tion in the conspiracy is not as high as that needed to submit a

charge of conspiracy to the jury, United v. Alvarez-Porras, 643

F.2d 54, 57 (2d Cir.), cert. denied, 454 U.S. 839, 102 S.Ct.

146, 70 L.Ed.2d 121] (1981). The proof may be “totally cir-

cumstantial,” United States v. Ragland, 375 F.2d 471, 477 (2d

Cir. 1967), cert. denied, 390 U.S. 925, 88 S.Ct. 860, 19

L.Ed.2d 987 (1968), and the court must view the evidence as a

whole rather than consider individual items in isolation,

United States v. Di Palermo, 606 F.2d 17, 22 (2d Cir. 1979),

cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 599

(1980). Once a conspiracy has been proved to exist, the evi-

dence needed “to link another defendant with it need not be

overwhelming.” United States v. Provenzano, 615 F.2d 37, 45

(2d Cir.), cert. denied, 446 U.S. 953, 100 S.Ct. 2921, 64

L.Ed.2d 810 (1980) (quoting United States v. Head, 546 F.2d

6, 9-10 (2d Cir. 1976), cert. denied, 430 U.S. 931, 97 S.Ct.

1551, 51 L.Ed.2d 775 (1977)).

(41, 42) Notwithstanding this lower standard the govern-

ment must nonetheless show a “likelihood of an illicit associ-

ation between the declarant and the defendant.” United

States v. Ragland, supra, 375 F.2d at 477 (emphasis added),

Mere familiarity with a drug dealer does not make one a mem-

ber of his conspiracy; nor does association with a conspirator

provide a sufficient basis for the admissibility of hearsay state-

ments of an alleged co-conspirator. United States v. Stein-

berg, 525 F.2d 1126, 1134 (2d Cir. 1975), cert. denied, 425

U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976); United States

v. Fantuzzi, 463 F.2d 683, 690 (2d Cir. 1972); United States v.

Ragland, supra, 375 F.2d at 477.

[43] In the present case the independent non-hearsay proof

consisted of (1) Haynes’ admission that he was known as

“Legs” and knew Williams and Harrison, (2) proof of a tele-

phone conversation with Williams on April 9, 1981, and

50a

(3) proof that on April 25, 1981, Williams dialed a telephone

number at Haynes’ apartment house.** The government

argues that the short April 9th conversation, in which the por-

tion relied on by it was Haynes’ question “what's happening

Felix” and Williams’ reply “ain’t nothing happening Legs,”

was sufficient to meet the foregoing standards because one can

infer that it was narcotics-related when considered with evi-

dence that Williams was at that time out of drugs. We dis-

agree.

Viewed in a light most favorable to the government and

“not in isolation but in conjunction,” United States v. Geaney,

supra, 417 F.2d at 1121, the independent non-hearsay evi-

dence proves only an acquaintanceship, not the likelihood of

an illicit relationship between Williams and Haynes. The ex-

pression “what's happening?” is a widespread innocent saluta-

tion, the equivalent to “what's cooking?,” “what's new with

you?,” or simply “hello, how are you doing?” Hearsay proof

that co-conspirators may on two or three occasions have used

the same phrase in the course of conversations with Williams

involving narcotics hardly supports the sinister inference de-

manded by the government, in view of common knowledge

that the salutation is widely used by innocent acquaintances.

While “[j]udges are not required to exhibit a naivete from

which ordinary citizens are free,” United States v. Stanchich,

** Scraps of paper retrieved from Williams’ trash and Williams’ notebook

containing references to “Legs” are hearsay and accordingly may not be used

to meet the Ceaney threshold. The government understandably did not seek

to admit these writings as business record exceptions to the hearsay rule,

Fed.R.Evid. 803(6), absent proof of their reliability and accuracy as business

records, either through a custodian or other qualified witness subject to cross-

examination. See LU’nited States v. McCrath, 613 F.2d 361, 367-68 (2d Cir.

1979), cert. denied, 446 U.S. 967, 100 S.Ct. 2946, 64 L.Ed.2d 827 (1980);

United States v. Baxter, 492 F.2d 150, 164 (9th Cir. 1973), cert. denied, 416

U.S, 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974).

5la

550 F.2d 1294, 1300 (2d Cir. 1977), neither are we permitted

to read evil meaning into words usually having an innocent

connotation, absent proof (of which there is none here) that

they were part of a secret code.

[44, 45] Statements made by Williams on April 25, 1981,

when he dialed a number at Haynes’ apartment house, were

hearsay as to Haynes since only Williams’ voice was recorded

and there is no non-hearsay proof that Haynes was the person

on the other end of the line. However, even if, as the govern-

ment argues, the Williams’ end of the conversation was admis-

sible not to prove the truth of what he said but merely for the

purpose of showing that the statement was made, Williams’

statements that “you can send Bobby” and “[i]f Gabe come,

tell him something about shirts that he had passed,” are too

ambiguous to cross the threshold required to establish partici-

pation in a criminal conspiracy, United States v. Cianchetti,

315 F.2d 584, 587-88 (2d Cir. 1963). When evidence used to

satisfy Geaney is “as consistent with innocence as with guilt,”

additional evidence linking the defendant to the conspiracy as-

sumes “pivotal importance.” Alvarez-Porras, supra, 643 F.2d

at 57-58. Here, that all-important other evidence is totally

lacking. The most that was developed by the evidence was an

acquaintanceship between Haynes and Williams plus a pos-

sible inquiry by the former of the latter about narcotics. As

against this meagre evidence the record shows that in the

course of eight months of surveillance by trained agents,

Haynes was never seen at Williams’ apartment. His voice was

heard on only one of some 200 taped conversations between

Williams and his co-conspirators that were admitted into evi-

dence.

[46] For these reasons the jury should not have been permit-

ted to consider the statements of co-conspirators concerning

Haynes and the charges against him should have been dis-

missed for insufficiency of proof. Accordingly, we reverse

52a

his conviction and remand with directions to enter a judgment

of acquittal of the charges against him.*

We have considered the remaining claims made by various

appellants and find them to be without merit.

The judgment convicting appellant Haynes is reversed. The

judgments convicting all other appellants are affirmed.

= Haynes’ conviction under 21 U.S.C. § 843(b) for using a telephone to

further the conspiracy must be reversed in light of our ruling that the evi-

dence is insufficient to convict Haynes of the predicate felony of membership

in the conspiracy.

53a

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States Court of Appeals, in

and for the Second Circuit, held at the United States Court-

house, in the City of New York, on the second day of May, one

thousand nine hundred and eighty-three.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

WILLIE TERRY, Nos. 82-1125, 1175, 1177

Defendant-Appellant. §2-1179, 1181, 1183

on eeeen enn neeen en neneeen ee eee ee ee nena X §2-1185, 1187, 1189

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

ERIC NALVIN, ROBERT GUIPPONE, WILLARD

WILLIAMS, ONZELO MARKUM, CLARENCE HAYNES,

SAINT JULIAN HARRISON, PAUL JENKINS, and

ANTHONY MICHAEL PORCELLI,

Defendants-Appellants.

A petitiion for rehearing containing a suggestion that the ac-

tion be reheard in banc having been filed herein by counsel for

the defendants-appellants, Robert Guippone and Anthony

Michael Porcelli,

Upon consideration by the panel that heard the appeal, it is

Ordered that said petition for rehearing is DENIED.

54a

It is further ordered that the suggestion for rehearing in

banc has been transmitted to the judges of the court in regular

active service and to any other judge on the panel that heard

the appeal and that no such judge has requested that a vote be

taken thereon.

A. Daniel Fusaro, Clerk

by /s)

Francis X. Gindhart.

Chief Deputy Clerk

55a

Supreme Court of the United States

No. A-1018

ROBERT ANGELO GUIPPONE and

ANTHONY MICHAEL PORCELLI,

Petitioners,

UNITED STATES

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

Upon ConsmpERATION of the application of counsel for peti-

tioner/(s),

It Is Orpenen that the time for filing a petition for writ of

certiorari in the above-entitled cause be, and the same is here-

by, extended to and including July 31, 1983.

/s/

Thurgood Marshall

Associate Justice of the

Supreme Court of the

United States

Dated this 22nd

day of June, 1983

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