Appendix — Aiken v. United States

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Onis of Ci sh Conti i’

UNITED STATES COURT OF APPEALS,

Foa So Cmourr,

Vo. 461— September Term, 1966. 1

(Argued May 31, 1967 , Decided August 8, 1967. )

igi “Docket No. 31053

1

vv

Unrrep Staves or AMERICA,

: i : . 5 Appellee,

‘ne |

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Noe, MAxwRIL, WLAAx Apams, Jonw Henny Purry,

a CLaxxx c Waite and Lzonarp R. Am EN,

we ugh Appellants.

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Before: oe 4

Waremaax, Stur and Kavraay, a

Cirowit Judges

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„ ˖ ²˙ eee

United States District Court for the Southern District of

New York, Charles H. Tenney, Judge, convicting Noel

Maxwell, John Henry Purry, Clarence White, William

Adams and Leonard R. Aiken of conspiracy to violate 21

U.S.C. §§ 173, 174, and in the cases of Maxwell, Purry and

White, of substantive violations of those sections. Affirmed.

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14

4

Opinion of Circuit, Court . a

* C. Barcuernen, In., New York, N. T. (An-

* thony F. Marra and James J. Sentner, Jr.,

New York, N. V., on the brief), for appel-

lants Maxwell, Adams, Purry and White.

7

James J. Haxnakax, New 1 8 N. V. for ap-

ets oe )

Danni. R. Murpock, Asst. U. S. anaes

| Southern District of New York (Robert M.

Morgenthau, U. S. Attorney, Robert C. Mor-

villo, Michael W. Mitchell and Paul B. Gal-

vani, Asst. U. S. Attorneys, on the brief )s

hee .

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Surrn, Circwit Judge:

Noel Maxwell, John Henry Pr „Clarence White, Wil-

bam Adams and Leonard R. Aiken appeal from judgments

of conviction entered in the United States District Court

for the Southern District of New York after a jury trial

before Judge Charles H. Tenney. All five appellants were

convicted of conspiring to violate 21 U.S. C. §§ 173, 174;

Maxwell, Purry and White were also found guilty of sub-

stantive violations of those sections. Adams was sentenced

to five years imprisonment; Maxwell, Purry and White re-

ceived concurrent sentences of six, seven and eight years,

respectively; Aiken was fined $15,000 and sentenced to a

term of thirteen years imprisonment to run concurrently

with an existing twenty-five year sentence. See, United

States v. Aiken, 373 F. 2d 294, 296 (2d Cir. 1967). We

have examined the joint and several points raised by ap-

pellants, find them to be unpersuasive and, therefore, affirm

the convictions.

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Opinion of Circuit Court.” - |

“Appellants assert that the evidence of guilt on the col 2 5

spiracy count was insufficient in that the government did

not bear its burden of proving beyond a reasonable doubt

(1) that an overall conspiracy existed; (2) that each ap-

pellant was a member of the conspiracy; (3) that each knew

all of his alleged co-conspirators, and (4) that each was

aware that the cocaine had been illegally imported. This

point fails in all respécts. | 48 K

Taking the evidence in the light most favorable to the 3

government, as we must, United States v. Fiorillo, 376 F. :

2d 180 (2d Cir. 1967), the jury could have found that dur-

ing the years 1956, 1957 and 1958 three seamen, Jesse Col.

_ oön, Winston Massiah and Mitchell Anfield, purchased large

Auantities of cocaine from one Rene Hausaff in Valparaiso;

Chile. They then transported the cocaine on their ships to

New York City where it was carried ashore by longshore-

men and subsequently sold to Aiken, to a duo composed of

Maxwell and Adams, to a trio formed by Purry, White

and one Nick Holiday or to others. | i lea deal

The evidence which inculpated appellants on the con-

* spiracy and substantive counts may be condensed as fol-

lows. On June 18, 1956, Colson brought in some cocaine

and met a colleague named Granville Smith who took Col- .

son to Purry’s apartment where he. introduced him to

Purry. Purry, in turn, introduced Colson.to White and

Holiday. The men conversed and White, Purry and ‘Holi-

day agreed to cut and distribute cocaine to. be imported

by Colson and Smith. The three agreed further to furnish

_“ Colson with money before his ship sailed. Colson landed

again on July 31, 1956 and complained to Smith and Purry |

about not having received the promised funds but later

delivered a quantity of cocaine to Smith in Purry’s pres-

‘ence. Colson subsequently took back half of the cocaine

Opinion of Circuit Court.

because of non-payment, sold it to Maxwell for $12,000 but,

1 Massiah’s request and in the presence of Adams, paid

back $300 because the weight was short. Thereupon, Max-

well, pleased with Colson’s way of doing business, asked

to be notified of the next shipment. In August of 1956,

Colson and Anfield met with Purry, White and Holiday;

Purry suggested that they not deal with Smith any more

because he had defalcated with their funds, Colson agreed

and: Parry asked to be informed of the next shipment.

Later in August, Purry, White and Holiday agreed to

purchase $600 worth of cocaine through Massiah but failed

to deliver. the cash before Massiah’s ship sailed. When

Massiah returned in early October, he sold cocaine to Max-

well and Adams. Massiah subsequently stated that he had

been robbed and Maxwell, Adams, White and Purry, among

others, unsuccessfully attempted to recover the supposedly

stolen cocaine. On October 30 Colson and ‘Anfield sailed

carrying with them $600 from Purry, White and Holiday.

Upon the ship's return on December 10, Colson delivered

cocaine to the trio and sold Maxwell and Adams $16,000

to $18,000 worth of cocaine. Early in 1957 and later in

June of that year sales of more cocaine to Purry, White

and Holiday and to Maxwell and Adams oceurred and were

financed in the same way with the trio paying in advance

and the duo paying on receipt. In July of 1957 Maxwell

and Adams made a $2,500 purchase and a similar sale oc-

curred later that summer. At that time Colson gave Purry,

White and Holiday cocaine on consignment but when pay-

ment, was not forthcoming, Colson retrieved the cocaine.

Toward the end of 1957, Colson informed Aiken that he

received shipments of cocaine and Aiken told Colson to

have one Schoolboy Ellis contact him when a shipment

93 2 arrived. Colson subsequently sold Aiken $2,500 worth of

| ede ene ,

Opinion of Circuit Court.

cocaine. Later on, in the fall of 1958, Aiken purchased a.

quantity of cocaine for $12,500 and, at the same time Col-

son made further sales to Maxwell and Adams. That same

year, Colson made a sale to Aiken at a reduced price be-

cause a prior delivery had been defective.. Further proof

ol at least two more sales to Aiken was adduced.

Ass the above-described’ evidence demonstrates, appel-

lants’ attack on the sufficiency of the evidence is unavailing.

The jury was clearly entitled to find a single conspiracy

with Colson, Massiah and Anfield supplying cocaine from

the same source in Chile for sale and distribution by ap-

pellants in New York City. Moreover, as detailed above,

the government submitted adequate proof of Purry and

White 's substantive violations on June 18, 1956 and Max-

well’s similar offense on July 31, 1956. The government a-

Proof, furthermore, showed numerous sales to each appel-

lant and thus secured each man to the conspiracy. Compare

. United States v. Stromberg, 268 F. 2d 256, 267 (2d Cir.),

bert. denied 361 U. S. 863 (1959). Thirdly, it is irrelevant

that each appellant did not know all of his alleged co-con-

spirators. United States v. Edwards, 366 F. 2d 853, 867

(2d Cir. 1966), cert. denied sub nom. Parness v. United .

States, 386 U. S. 919 (1967). Lastly, regardless of the evi-

dence of actual knowledge by appellants that the cocaine

came from Chile, possession of cocaine coupled with the

permissible inference of §§ 173, 174 is adequate evidence

of knowing illegal importation. United States v. Tucker

(2d Cir. June 28, 1967). , 1 ded

Maxwell, Purry, White and Adams contend principally

that they were denied their Sixth Amendment right to a

speedy trial. Appellants were indicted with seven others

o * ha ‘

ee

Smith, Nick Holiday, 105 Thora and Sylvie Ferris. Aiken was

48

oOpenion of Cirowit Court. a

on March 3, 1961. The five appellants, along with three of

their. oo-indictees (Massiah, Anfield and Thorn) were forth-

with brought to trial on June 13, 1961 before Judge J.

Skelly Wright, sitting by designation, and a jury. The next

day, however, Judge Wright declared a mistrial. and on

June 15 granted the government’s motion to ‘sever Max-

"well; Purry, White and Adams. Trial commenced as to

Aiken, Massiah, Anfield and Thorn, and on June 29 a jury

found all four defendants guilty. We reversed the convic-

tions of Aiken, Anfield and Thorn in United States v. Mas-

siah, 307 F. 2d 62 (2d Cir. 1962), and. the Supreme Court

- reversed Massiah’s conviction in the noted decision, Mas-

siah v. United States. 377 U. S. 201 (1964). Almost five

years, after Judge Wright. declared the mistrial, Maxwell,

Purry and Adams moved on June 3, 1966 to dismiss the

indictment for want of prosecution. Judge William B. Her-

lands denied their motion on June 20 and appellants were

subsequently brought to trial before J udge Tenney and a

jury on October 17, 1966. —

Maxwell, Purry, White and Adams lack standing to claim

that the longer than five year delay between mistrial and

retrial deprived them of a speedy trial. Since none of these

. appellants ever demanded a speedy trial, each has waived

Sixth Amendment right. United States v. Lustman, 258

F. 2d 475-(2d Cir.), cert. denied 358 U. S. 880 (1958). E

were,we to treat the June 3, 1966 motion to dismiss e

by Maxwell, Purry and Adams as a dag de aal

trial, which we do not, it would not avail these appellant:

‘because they were speedily tried thereafter... - 2

indicted as “John Doe, a/k/a ‘Leon,’ meaning thereby to describe

a Negro male, of medium complexion, with black hair and a medium

duild, approximately 40 yee old, approximately 5’ 9” tall and

weighing approximately 165 bs.“ p Loe

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79 Opinion of Ci it Court. - |

“Aware that their claims are barred under Lustman, ap-

pellants invite us to abandon the so-called demand rule

which we have consistently applied in a constantly lengthen-

ing line of cases.* We decline the invitation, however, be-

cause the reasoning of Lustman, that the demand rule is

consonant with the bulk of federal authority and preserves

the speedy trial right as a shield for the defendant’s pro-

' tection but not as a sword for his escape, is still to us per-

Maxwell and Aiken next claim that the admission of the

government’s exhibit 87, which was a typewritten transcript

of an incriminating conversation between Maxwell and

of the Fifth Amendment. The background of exhibit 87

is as follows. On March 5, 1960, Customs Agent Finbarr

Murphy installed a minifon recorder in the glove compart-

ment of Colson’s automobile; Colson then picked up Max-

-

lebe v. United States 2d Cir. April 21, 1960); United

States v. Moore, 373 F. 2d S47 (2d Cir. 1 Y; Uni States v.

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4 9 Opinion of C Court, N

On November 30, 1960, while Mete b the re-recording

„through earphones, Murphy dictated approximately ten

minutes of the forty-five minute conversation to a short-

hand stenographer whose notes were typed. Murphy then

compared the transcript. with the re-recording and was.

satisfied that the transcription wai accurate. The portions

deleted were either irrelevant, inaudible or repetitive. In -

July 1961, under the impression that there would not be

a re- trial, Murphy put the minifon wire and the re- record-

ing back into circulation where; in the normal course of

affairs, the conversations were erased when the wire and

tape were re-used. os

At the voir dire, Maxwell, objected to the admission ot

the transcript because the recording was made in violation

of his right to counsel. He does not. press this point on .

appeal. In any event, it is meritless. See, United States

er rel. Molinas v. Mancusi, 370 F. 2d 601 (2d Cir.), cert.

: denied 386 U, S. 984 (1967), and cases cited therein. What

Maxwell does argue is that the accuracy of the transcript

cannot be ascertained and that whether the transcript

honestly reflects the tenor of the whole conversation cannot

be determined. The deletion of the inaudible, irrelevant

and repetitive portions of a tape, however, does not render

it inadmissible. United States v. Knohl (2d Cir. June 22,

8 at 202.

The accuracy of the transcript presents a best évidence.

| question. We recently said in Knohl, ‘‘as far as the best

evidence rule is concerned, a well recognized exception is

that secondary evidence may be admitted in lieu of. the

original provided the original has not been lost, destroyed

or become unavailable through the fault of the proponent.

and provided the copy does not otherwise appear to be un-

trustworthy. Here, although the transcript was typed

re ae ee

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"Opinion of Circuit Court.

— sind was this’ suscéptible to ee

represented the re-recording which itself i is not —

. Hence, Judge Tenney: was warranted: in finding that un-

trustworthiness had not been ‘shown and the question re. :

mains of whether “the original has. been lost; destroyed

or become unavailable through the fault of the proponent.’’ .

The tapes were erased by the government; nevertheless,

secondary evidence is admissible unless the loss, destrue-

tion or unavailability was purposefully caused by the pro-

ponent in order to prevent the production of thé primary

evidence.“ Here, Murphy stated that he returned the tapes

to circulation where they were erased because he did not ~,.

* Courts, e commentators and codifiers have expressed “this rubric

in various ways. E. g., Sylvania’ Elec. Prods. Inc. v. Flanagan, 352

F. ny 38 755 1008 (1st ‘Giz. 1965) ; United S v. Alexander, 326

F 24 736 739 (4th Cir. 1964) ; McCormick, Evidence § 196 (1954)

(seri ault af the proponent) ; Tallo v. United States, 344 F. 2d

467, 470 2 1965) (w rongful disposition); ‘Chandler v. United

States, 318 F 2d ot 10th Cir. 1963) (fraudulent in-

volved in th ; Toho Dussan Kaisha, L. v. American

| eee ae 45 255 P F. 1418, 423 (2d Cir. 1959) (connivance of

| (esd. States v. 3 237 F. 2d 466, 475 (2d

Gr. 21856) (

United Stas 224 F. 2d ‘910, 5912 (Sth Gr. eth Cr. 1880 (without (without any

nee eee fraudulent purpose or any intent to create an excuse for its non- ;

roduction) ; Reynolds v. Denvee & Rio Greade W éstern R.R., 174 -

. 2d 673, 675 1 5 Cir. 1949) (fraud or bad faith with

to the destruction); Fell mayer acking Co. v. Commissioner, a

F. 24 707, 710 25 Ce 1944) (no reasonabie that it

has been desig withheld or 1 ‘ick, Evidence

its use as evidence; rut 16 tne station of the tril , an

intrecene of fraul); 4 Wigmore, Evidence idence §1198 at 345

Se 1 dicion of fra

5 odel Code of Evidence, in 5 (eb ence —

2

"Opinion of Circuit Court.

think that a re- trial would ovcur in whieh they would be

used. Thus although we regret the government’s conduct

in not supervising their handling more carefully and allow-

| ing the tapes to be erased while charges against Maxwell

were outstanding, it was within Judge Tenney’s discretion

to admit exhibit 87.

Even if the admission of the exhibit were erroneous,

which it is not, Maxwell would not be entitled to relief for

two reasons upon which we need not rely. First, he re-

. @eived a concurrent/sentence for the conspiracy count on

which the tapes were admittde. See, United States v. Lawn,

355 U. S. 339, 359, 362 (1958); United States v. Costello

(2d Cir. 1967); United States v. Gonzales (2d Cir. June 22,

1967) (mandatory minimum sentences). See also, United

States v. Youngblood (2d Cir. June 21, 1967). Secondly,

. Colson testified at trial as to the substance of the taped

conversation. See, Monroe v. United States, 234 F. 2d 49,

55 (D. C. Cir.), eert. denied 352 U. S. 873 (1956). Cf. United

States v. White, 223 F. 2d 674 (2d Cir. 1955). Finally, tge

transeript did not refer to Aiken and was admitted only

against Maxwell; hence, Aiken's elaim is frivolous.

Aiken further argues that certain in- eustody statements

which he made to Agent Murphy after he had been arrested

and informed of his rights were admitted in violation of

tm rules laid down in Massiah v. United States, 377 U. S.

201 (1964) and Escobedo y. Illinois, 378 U. S. 478 (1964).

At trial, Agent Murphy gave the following account of the

conversation, which Aiken does not challenge: |

277 pulled up in front of the House of Detention and

( A

I said What do you want!“ 5

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oe Opinion of Cirouit Court.

3 | Oy f

2 He- said, ‘If you get re di stuff rem want to get rid

of, call me.“ W

* Laaid, What!“ N

He said, If you get any stuff you wait ra get rid

of, eall me, you can trust me.’

Is aid to Aiken, ‘Trust yout Lace seen you before

And he repeated, ‘You can trast me.’

So I said, ‘Do you have any references?’

He says, ‘I have no references. I don’t do business

that way. Either you do it with me or you don’t.’

At that point I told him to get out en the conversa-

tion was terminated.” :

Since Agent Murphy 8 . testiniony reveals that

Aiken freely volunteered the remarks, neither Massiah nor

‘Escobedo has been violated. United States v. Accardt, 342

F. 2d 697, 701 (2d Cir.), cert. denied 382 U. S. 954 (1965).

Cf. United States v. Garcia (2d Cir. May 22, 1967).

Aiken complains that he was denied trial by an impartial ö

jury because a juror communicated to the ecurt some den-

igrating matter about one of appellant's trial lawyers.

After determining in the absence of appellant and counsel

that the juror had not discussed the matter with the rest

of the the panel, Judge Tenney excused the juror and replaced

him with an alternate. In following this procedure and in

replacing the juror with an alternate, Judge Tenney acted

woll within his powers and, absent a showing by appellant,

we will not presume prejudice in such matters. United

States v. Ellenbogen, 365 F. 2d 982, 989 (2d Cir. 1966),

nr. 8. 923 (1967); Damen Houli-

(1964); United States v. Woodner, 317 F. 2d 649, 652 2

Cir. 1963).

Opinion of Circuit Court.

Aiken goes on to e two complaints about J 3 Ten-

ney'is charge. These points are improperly presented for

appellate review Aiken failed to assert a timely

‘exception below, United States v. Indiviglio, 352 F. 2d 276

(2d Cir. 1965), cert. denied 383 U. S. 907 (1966), and, any-

„wap, are trivial. Aiken complains that The Court in its

: charge did not spell out for the Jury that were the Jury

to find that there were separate independent conspiracies

with separate and distinct groups involved and that some

of the defendants belonged to one conspiracy and not to the

other and that other defendants belong to another con-

spiracy, then a verdict of not guilty must be.returned to

all the defendants in the conspiracy. count.“ In fact, the

5 Court correctly chy ged that Proof of several separate

and. independent conspiracies involving various of the de-

fendants, although to violate the same narcotic laws, is not

proof of the ‘single conspiracy charged in the indictment. ”

United States v. Aiken, supra, Aiken’s second point i is that

the charge did not adequately explain the permissive: in-

ference of §§ 173 and 174. Although the court might have

stated more specifically that the inference is only permis-

— — sive, failure to do so is not plain error noticeable under

Fed. R. Crim. P. 52 (b), especially when knowing import -

tion is not in issue. United States v. Morton (2d Cir. ;

May 8, 1967). )

Aiken ’s next-to-last point is that i in identifying a photo-

graph of Aiken, Agent Murphy read off an inscription on

the rear which referred to Aiken as a federal fugitive.

Althou eference was unfortunate, it is ‘unimagi-

—— 1110 that, in light of the overwhelming evidence of guilt,

it could have in any way prejudiced Aiken. Cf. United

States v. Gillette (2d Cir. ) (fingerprint cards).

In any event, Aiken did not request the court to —

‘thé j jury e the N

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8 “Opinion of Cireuit Court.

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.

The nal vet bell y Amen whic werte e

prosecùtorial misconduct in regard to the Assistant United

ft States Attorney’s opening and closing remarks, is likewise

without merit. The prosecutor’s prediction in his opening

Statement that the government would show shootings,

cheatings and ‘robberies was substantiated at trial, ef.

United States v. Moran, 194 F. 2d 623 (2d Cir.), cert. de-

nied 343 U. S. 965 (1952), and his summation coolly detailed

ing lack of the restraint which more competent prosecu-

tors are careful to display. United States v. Murphy, 374

the evidence and cannot even be described as demonstrat-

F. 2d 651, 653 (2d Cir. 1967). Compare, denn States v.

- Bugros, 304 F. 2d 177 (2d Cir. 1962).

Aiken makes other arguments but they are too eden

to warant discussion. | , | ace

Judgment affirmed. =~ e

eo eee Petition for Rehearing:

"UNITED STATES COURT OF APPEALS,

Szconp Cmourr.

At a Stated Term of the United States Court of A

1 for the Second Circuit, held at the United States

in the oH of New York, on e twentieth | |

. present: Hon. Sremry R. Waterman,

\ Hon. J. Josxrn Smita,

\ How. Invinc R. KavrMan,

\ Circuit een

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Uns Srarzs oF Ai 3

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1 a | Waxstox ees, ET r u. 5 Gi 1

92 555 Defendants,

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2 Non. WIII AI 1 JOHN Sistas Pumr, :

on Wurre and Lronarp Royan ARE,

ig * * _Defendants- Appellants,

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A petit. n ter rehearing: 88 with a motion in the

: ee to stay the issuance of the mandate and con-

: tinue bail pending a petition for a writ of certiorari to the

oe fa go ourt of the United States having been filed

2 57

a imdictment. |

* UNITED STATES DISTRICT COURT

Soprm Dornier or New York

‘ > ca GE Oe St, 8

1

eee Unrrep Staves or America, 1110

4

Wirsrox Massian, Jesse Corson, MrrcHen AnrFigtp, Gran-

nnn Suara, Norn Maxwei, Witiiam Apams, Jonn

g Henry Punnr, CLann N WRArrR, Nick Holbar, Ioxr

Tuorn, SrLvra Feats, Jonw’ Dor, a/k/a ‘‘Lron’’ mean-

ing thereby to describe a Negro male of medium com-.

plexion, with black hair and a medium build, approx.

40 yrs. old, approx. 5’ 9” tall, and weighing approx.

165 Ibs’ |

, RS 7 Defendauts.

The Grand Jury charges: a RS. HOS

On or about the 6th day of ay , 1958, in the Southern

*

oil

District of New York, Winston Massiah, Jesse Colson and

Mitchell Anfield, the defendants, did unlawfully, wilfully .

and knowingly bring on board, and have in their possession |

and control on board a vessel of the United States, to wit,

the S. S. Santa Maria, while engaged on a foreign voyage,

a nareotie drug, to wit, approximately 3 pounds, 8 ounces

and 256 grains of cocaine, not constituting a part of the

cargo entered in the manifest or part of the ship’s stores.

title 21, United States Code, Section 1843 and

«Title 18, United States Code, Section 25.

. *

‘ 58. N

NI Sxcoxp Cova r

The grand y further charges: . 5

On or äbout the 6th day of May, 1958, i in- the Southern g

District of New York, Winston Massiah, Jesse Colson and

ee ee

Mitchell Anfield, the defendants, unlawfully, wilfully and

_ knowingly did receive, conceal, sell and facilitate the trans-

portation, concealment and sale of a narcotic drug, to wit,

approximately 3 pounds, 8 ounces and 256 grains of cocaine,

after the said narcotic drug had been imported and brought

into the United States contrary to law, knowing that the

said narcotic drug had theretofore been imported and

brought into the United States contrary to law in that the

importation and bringing of any narcotic drug into the

_ United States, except such amounts of crude opium and

coca leaves as the Commissioner of Nareoties finds to | se

necessary to provide for medical and legitimate uses only,

is prohibited.

(Title 21, Sections 173 and 1174, United States Code).

es a 18, Section 2, United States: Code).

if Tam Count

o

The Grand Jury further a

On or about the 18th day of June, 1956, in the Sosthern |

District of New York, Granville Smith, the defendant, un-

~ lawfully, wilfully and knowingly did receive, conceal, sell 55

and facilitate the transportation, concealment and sale of a

“narcotic drag, to wit, approximately 50 grams of cocaine,

after the said narcotic drug had been imported and brought

into the United States contrary to law, Knowing that the

said narcotic drug had theretofore been imported and

brought into the United States contrary to law in that the a

oe and N of any nareotie drug into the

a — * = — ‘a — . z = AES ENE OPIN ION, eee e e

50

United States, except such amounts of ernde opium and

coca leaves as the Commissioner of Narcotics finds to be

necessary to provide for medical and legitimate uses only,

; is prohibited. PS ab. phasing |: tates, feeding) Bia.

- (Title 21, Sections 173 and 174, United States Code).

nig HA 7 Fourra Count.

The Grand Jury further charges: 5 18 ag

n or about the 18th day of. June, 1956, in the Southern

District of New York, 114àͤ4k„„

Joun HRxnT Punzr, (Cuarence Ware om

Teceive, conceal, sell and facilitate the transportation, con-

cealment and sale of a narcotic drug, to wit, approximately

50 grams of cocaine, after the said narcotic drug had been

finds to be necessary to provide for medical and legitimate

uses only, is prohibite e. at i

title 21, Sections 173 and 174, United States Code).

ie eee

et ‘The Grand Jury further charges: 11 ae et Bean

On or about the 31st day of July, 1956, in the Southern

District of New-York, Granville Smith, the defendant, un-

lawfully, wilfully and knowingly did receive, conceal, sel!

OS EA SPAN tet * rler, SI LY eran ere ger

* oe hes 5

60

Indictment.

and facilitate the transportation, concealment. and sale of

a narcotic drug, to wit, approximately 25 grams of cocaine,

aftér the said narcotic drug had been imported and brought

into the United- States contrary to law, knowing that the

said narcotic drug had theretofore been imported and

brought into the United States contrary to law in that. the

importation and bringing of any narcotic drug into the

United States, except such amounts of crude opium and

a, - coca leaves as the Commissioner of Narcotics finds to be

_ is prohibited. = ¢

(Title 21, Sections 173 and 174, United States Code).

necessary to provide for medical and legitimate uses only,

8

Srxrn. Couxr

The Grand Jury further charges: |

On or about the 31st day of July, 1956, in the Southern

District of New York, . StS Hy .Y He

Me Re Nor, MaxwELl, —

~

; the defendant, unlawfully, wilfully and knowingly did re-

éeive, conceal, sell and facilitate the transportation, con-

© -eealment and sale of a narcotic drug, to wit, approximately

25 grams of cocaine, after the said narcotic drug had been

imported and brought into the United States contrary to

law, knowing that the said narcotic drug had theretofore

been imported and brought into the United States contrary © |

to law in that the importation and bringing of any narcotic —

drug into the United States, except such amounts of crude

opium and Ga leaves as the Commissioner of Narcotics

finds to be necessary to provide for medical and legitimate

uses only, is prohibited. eine gg eh eagle emer

(Title 21, Sections 173 and 174, United States Code).

60

61 ry

Isadictment.

6 The Grand Jury further charges: 1 £01 r e

On or about the 6th day of May, 1958, in the Southern

District of New York, Winston Massiah, Jesge Colson and

Sylvia Ferris, the defendants, unlawfully, wilfully and

. knowingly did purchase, possess, dispense and distribute a.

certain narcotic drug, to wit, approximately 3. pounds, 8

ounces and 256 grains of cdtaine, in that the said defendants

did not purchase, possess, dispense and distribute said nar-

: cotic drug in or from the original stamped package.

CTritle 26, Sections 4701, 4708, 4704(a), 4771(a).

and. 7237 (a), United States Code). f

85 Eienta Count —

The Grand Jury farther charges:

1. From on or. about the Ist day of January, 1956, and

continuously thereafter up to and ineluding the date of

the filing of this indictment, in the Southern District of

New York, and elsewhere, Wixston MassiaH,: Jesse Cor

sox, Mrronet, ANFIELD, GRANVILLE Smaru, Nokr. MaxweEt,

WLan Apams, Jon Henry Pourry, Ciarence Wuire,

. Nicx Hor. max, Icxy Tuorn, SLI Ferris, and Joun Doz,

a/k/a ‘‘Leon’’, meaning thereby to describe a Negro male,

of medium complexion, with black hair and a medium build,

approximately 40 years old, approximately 5/9” tall and

weighing approximately 165 Ibs., the defendants, and Fadul

Rene Harb Huasaff, Richard Roe, a/k/a ‘‘Rene’’, meaning

thereby to describe a — al of a light complexion

with dark hair and a medium build, 35 to 45 years old,

approximately 5/5” tall and weighing approximately 165

lbs., Amanda Huasaff, Helen Hoe, meaning thereby to de-

seribe the sister of Amanda Huasaff, a Caucasian female

@. a . : *

n —

—

ae

of a light complexion with dark hair and a medium build,

approximately 53 years old, approximately 557 tall and

weighing approximately 135 Ibs., Paul King, James Barber,

James Hunter, James Billips, Tony Gumbs, Joe Perry,

Gerald Youngblood, Clyde Cadogan, Paul Washington,

Sonny Campbell, Arthur Conquist, Harold Hoe, meaning

thereby to describe.the brother-in-law of Amanda Huasaff,

a Caucasian male, of light complexion with black hair and a

medium build, approximately 55 years old, approximately

55” tall and weighing approximately 160 Ibs., and George

Goe, a/k/a ‘‘Canales’’, meaning thereby to describe a Cau--

‘easion male with an olive complexion, with dark hair and

a medium build, 35 to 45 years old, approximately 5’8” tall

and weighing approximately 150 lbs., named as co-conspira-

tors but not as defendants, &nd divers other persons to the

Grand Jury unknown, did unlawfully, wilfully: and know-

ingly combine, confederate, conspire and agree together

and with each other te commit certain offenses against. the

United States, to wit, to violate Sections 173 and 174 of

Title 21, United States Code,

2. It’ was’ 4 Part of, Seid conspiracy that the above- |

mentioned defendants, and their ¢o-conspirators, would un-

_ lawfully, wilfully and knowingly impor and bring narcotic

drugs, ‘to wit, cocaine, into the United States, in violation

- of Sections 173 and 174 ‘of Title 21, United States Code.

3. u % ‘forther a part of ‘éaid ‘conspiracy that the

above Mentioned defendants, and their co-conspirators,

would unlawfully, wilfully and knowingly receive, conceal,

buy, sell and facilitate the transportation, concealment and

sale of narcotic drugs, to wit, cocaine, the exact amount

thereof being to the Grand Jury unknown, after said nar-

cotie drugs had been imported and brought into the United

States contrary to law, end e that said narcotic

drugs had been imported and . into the United

States contrary to law, in violation of Sections 173 and

174 of. Title 21, United States Code.

2

In be of said conspiracy and to effect the ob-

- jects thereof, the following overt acts, among N were,

committed in the Southern Distriet of New York:

1. On or about June 18, 1956, the defendants Gurte

‘Sirs, Jonx Henry Purry, CLARENCE Wairz and Nick

Holwar, had a conversation in a building in the vicinity

of 100th Street and Manhattan Avenue, New _— New

York.

2. On a about July 31, 1956, the defendants GranviLLz

Smira, Winston Massian and Jog Henry Pury had a

conversation in a bar at 10th Avenue and 17th Street,

New York, New York. 25

3. On or about July 31, 1956, defendant Win Mas-

slank had a conversation with .co-conspirator James Barber

: aboard the vessel S. S. Santa Luisa.

4. On or about Joly 31 1956 defendants 2 Maxwati,

and Winston Masslan had a conversation at 19 West 128th

Street, | New York, New York. :

5. On or about July 31, 1956 defendants Nor. Max-

WELL, WIA ApamMs and Winston. Massian had a con-

versation at 19 West 128th Street, New York, New York.

6. In or about the month of August, 1986 defendants

Mrronkrl. ANFIELD, JonN HENRY Pury, CLaRENCE WHITE «=

and Nick Hor mar had a conversation i ina rab in the

©

64

\ Indictment.

>

vicinity of 100th Street and Manhattan Avenue, New York,

New York.

7. On or about G 8, 1956 hetendants 1 Max-

9 WELL, WIA Apams and Wrysron Massian had con-

versation at 19 West 128th Street, New York, New Vork.

8. On or about October 10, 1956 defendants Noe. ,

WELL, WIA Apams, MrrcHELL ANFIELD and WINS Don

Massian had a conversation at 19 West 12th Street, New

York, New York. nae

9. On or about October 11, 1956 n JOHN Henny

Purry, CLaRxxcR Wurre and Nick Houmay had a conver-

sation in a building in the vicinity of 100th Street and

Manhattan Avenue, New York, New Tork.

10. On or about October 11, 1956 defendants aun

Wurtz, Winston Massian and Nick Hormay had a con-

versation at 19 West 128th Street, New York, New York.

11. o or about U December 10, 1956 defendants JoHN

-Henry-Purry, CLAN WRTr and Nick Hotmay had a

conversation in a building in the vicinity of 100th Street

and Manhattan Avenue, New York, New York.

12. Onor about December 10, 1956 co-conspirator James

Hunter went to the vicinity of 8th Avenue and 16th Street,

New York, New York.

14. On or about December 10, 1956 defendants Mrrcnetz,

Ari, Joun Heney Purey,-Ciarence Warre and Nick

Hol wax had a conversation in a building in the vicinity of

100th Street * Manhattan Avenue, New York, N. V.

2

14. On or about June 4, 1957 co-conspirator James

Barber went to a bar in the vicinity of 8th Avenue and

16th Street, New York, New York. a

— — — W 777 9995

— on

15. On or about July 17, 1957 co-conspirator James one

Hunter went to a bar in the vicinity of 8th Avenue and

16th Street, New Yor, “ee York. aed

16. On or about Sule. 31, 1956 co-oomapizator. Janes

Barber went to the vicinity of 8th Avenue and 16th Street,

5 N. ew Lork, New Lork. i

J 17. On or about August 26, 1957 e J ames

Hunter went to the vieinity of 8th Avenue and 16th Street,

New York, New Fork.

18. On or * 1 18, 1957 been inlet James

Billips went to the vieinity of A7th Street and 9th Avenue,

New N New Lork. a

19. On or about December 30 1957 co-conspirator. J ames. .

Billips went to the vicinity of th Avenue and 17th Street, :

Ne York, New York

20. On or about . 10, 1958 co-Conspirator J ames

Billips. went to a bar in the vicinity of 9th Avenue 9g 17th

* Street, New York, New York. i

21. On or about May 6, 1958 defendant n 5 tie 2

was in possession and control of a quantity of adhesive *

aboard the vessel S. S. Santa Maria. ial? |

( Title 91, United States Code, Sections 173 and 174).

7

J Morrow S. Rosson

Dited States Attorney

*

„ W :

: .

66

Judgment:

On this 5th day of Jannary, 1967 ¢ came the attorney for

the government and the menden e N in person and

ö 1 counsel . 1 8 aot

‘Is Apsunexp. that the defendant has been convicted

his plea of? not guilty, and a verdict of guilty by a

Jag of the offense of unlawfully, wilfully and knowingly

conspiring to import and bring narcotic drugs, to wit, o-

eine, into the United States, in violation of Sections 173

and 174 of Title 21, United States Code (Title 21, United

States: Code, Seetions 173 and 174), as charged in count

eight—anp—the defendant Leonard Royal Aiken, indicted

as John Doe, a/k/a ‘‘Leon’’, duly represented by counsel,

7 having admitted he is the same person previously convicted

on One separate Federal Narcotics Violations,

and the court 1 4 the defendant whether * has

anything 1 say why judgment should not be u

and no sufficient cause to the contrary being shown or

appearing to the Court,

Ir Is Aube that the defendant i is Suilty as es

and convicted.

„II Ia Ae mat the defendant is hereby 8

ted to the custody of the Attorney General or his au-

thorized representative for imprisonment for a period of-

ie THIRTEEN .(13) YEARS and ¥rNEp $15,000. The fine is to be

ä paid or the defendant is to stand committed until the fine

is paid or he is otherwise een, e to law

(Count 8).

This sentence is to run concurrently with the sentence

. imposed bythe Honorable John M. Cannella on August 10,

1966 on indictment 64 2 Uni.

*

67

Judgment.

‘Bail pending appeal is fixed in the sum of #100,00.

I Is Onverep that the Clerk deliver a certified cp of

. this judgment and commitment to the United States Mar-

hal or other qualified officer and that the copy serve as 1 ee

commitment of the defendant.

ee T. Nine, f ey

‘United States District Judge. .

Joun J. Orzvr, In.,

Clerk. :

. * . . é 4

. 1 Insert ‘ by conse” or “witout t counsel; the court advised the

defendant of right to counsel and asked him whether he desired

to have counsel appointed by the court, and the defendant there-