Appendix — Smith v. United States

Supreme Cour, U.S.

92-631 | FILED

| OCT 8 992

!

No. OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

October Term 1992

JAMES EDWARD SMITH, and

RICHARD LEANDER SMITH,

Petitioners,

V.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

APPENDIX

Gerald T. Zerkin #16270

GERALD T. ZERKIN & ASSOCIATES

Linden Tower Professional Centre

2nd & Franklin Streets

Richmond, Virginia 23219

(804) 788-4412

October 8, 1992 Counsel for Petitioners

Appellate Printing Services * 523 East Main Street * Richmond, VA 23219 * (800) 642-7789

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

“~

UNrTED STATES OF AMERICA,

Plaintiff-Appellee,

py > No. 91-5574

James Epwarb Smitu, a/k/a Smitty,

a/k/a Dumptruck Smitty,

D':fendant-Appellant.

—

~—

Untrep STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 91-5575

RICHARD LEANDER STH, a/k/a Peter,

Defendant-Appellant.

y,

Appeals from the United States District Court

for the Eastern District of Virginia, at Richmond.

Fichard L. Williams, District Judge.

(CR-90-71-R)

Argued: March 6, 1992

Decided: June 10, 1992

Affirmed by unpublished per curiam opinion.

AfP-\

2 UNITED STATES V. SMITH

COUNSEL

ARGUED: Gerald Thomas Zerkin, GERALD T. ZERKIN & ASSO-

CIATES, Richmond, Virginia, for Appellants. Thomas Emest Booth,

UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Appellee. ON BRIEF: Kelley H. Brandt, Robert Godfrey,

GERALD T. ZERKIN & ASSOCIATES, Richmond, Virginia, for

Appellants. Richard Cullen, United States Attomey, William G. Otis,

Assistant United States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

I.0.P. 36.5 and 36.6.

OPINION

PER CURIAM:

Following a jury trial in the United States District Court for the

Eastern Distnct of Virginia, James E. Smith ("James") and Richard

L. Smith ("Richard") were convicted of interstate travel to promote

drug trafficking, 18 U.S.C. § 1952(a); possession with intent to dis-

tribute heroin, 21 U.S.C. § 841(a)(1); and use of a telephone to facili-

tate drug trafficking, 21 U.S.C. § 843(b). James was also convicted of

possession of a firearm by a convicted felon, 18 U.S.C. § 922(g); and

distribution of heroin, 21 U.S.C. § 841(a)(1). Richard was convicted

of participation in a drug trafficking conspiracy; 2! U.S.C. § 846, dis-

tribution of heroin, 21 U.S.C. § 841(a)(1); and distribution of cocaine,

21 U.S.C. § 841(a)(1).' Evidence at trial indicated that James, while

incarcerated on a drug-related conviction in the District of Columbia,

had planned and managed a drug distribution operation in Richmond,

‘The jury acquitted James on one count of using a telephone to facilitate

a drug transaction and acquitted Richard on one count of distribution of her-

Oin. The district court dismissed a charge of participation in a drug traffick-

ing conspiracy against James. The jury acquitted co-defendant Olivia

Bratton of all charges.

App- > |

Unrrep StaTEs Vv. SMITH 3

Virginia. Richard participated in the buying and selling of drugs for

the operation.

James and Ricnard appeal their convictions on a number of

grounds. After a thorough review of the record, finding no reversible

error, we affirm.

I.

On March 16, 1988, prior to any charges being filed in the present

case, James pled guilty in the District of Columbia to a charge of dis-

tributing narcotics and was sentenced to a term of 35 years in prison.

James argues that the presentation, in this case, of extensive evidence

regarding the conduct that formed the basis of that prior conviction

violated the Double Jeopardy clause of the Fifth Amendment. The

evidence was admitted by the trial judge under Federal Rule of Evi-

dence 404(b) as probative of James’ "usual method of operation," his

intent with respect to distribution, and his relationship with various

witnesses who testified against him.

James’ Double Jeopardy claim is based on the Supreme Court's

decision in Grady v. Corbin, 495 U.S. 508, 109 L. Ed. 2d 548 (1990).

In that case, the Court held that "the Double Jeopardy Clause bars any

subsequent prosecution in which the government, to establish an

essenual element of an offense charged in that prosecution, will prove

conduct that constitutes an offense for which the defendant has

already been prosecuted." /d., 109 L. Ed. 2d at 564. James argues that,

in the present case, the Government used the conduct underlying his

prior conviction as evidence to convict him of the present charges.

James overstates the holding in Grady. While the Government, in

this case, uses prior offense conduct as evidence that James commit-

ted the present offense, the prior offense conduct is not an element of

the present offense. As the above quoted language in Grady states, the

Double Jeopardy clause is violated only when the Government uses

a defendant's prior conduct "to establish an essential element of the

offense charged." Jd. The Grady Court cautioned, "This is not... [a]

‘same evidence’ test." /d. This court has subsequently interpreted

Grady, concluding that "Grady prohibits a successive prosecution

only when the evidence of previously prosecuted conduct proves the

APP- 3

os Unrrep STATES V. SMITH

‘enurety’ of an essenual element." United States v. Clark, 928 F.2d

639, 642 (4th Cir. 1991), petition for cert. filed, April 1, 1992. Clark

noted that a broad interpretation of Grady, as urged by James, that

would bar admission of previous offense conduct used merely as

evidence of an element of the instant offense, would conflict with the

holding of Dowling v. United States, 493 U.S. 342 (1990), a case

which Grady did not purport to overrule. In Dowling, tesimony under

Rule 404(b) was deemed proper as tending to establish a defendant’s

idenuty, despite the fact that the testimony related to an incident for

which the defendant had previously been tried and acquitted. As

Clark points out, only the more restrictive reading of Grady, that pre-

vious offense conduct is barred by the Double Jeopardy Clause only

when the conduct "proves the ‘entirety’ of an essential element" of the

instant offense, is reconcilable with the Dowling decision. See also

United States v. Felix, __ U.S. ___, 1992 U.S. LEXIS 1954, *16-*17

(March 25, 1992) ("the , introduction of relevant evidence of particular

misconduct in a case is not the same as prosecution for that conduct"

(foomote omitted)).

In addition, both James and Richard argue that the evidence of

James’ prior involvement with a major drug trafficking conspiracy

was inadmissible under Rule 404(b). Rule 404(b) states:

Evidence of other crimes, wrongs, or acts is not admissible

to prove the character of a person in order to show action

in conformity therewith. It may, however, be admissible for

other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mis-

take or accident ....

Fed. R. Evid. 404(b). James and Richard argue that evidence re-

garding the prior conspiracy was introduced to reflect upon their char-

acter, or alternatively, that if the evidence was admissible under Rule

404(b), that it was too prejudicial to be admitted under Rule 403.

However, the record reflects that evidence regarding the prior con-

spiracy was introduced for proper purposes under Rule 404(b). The

Government contended that the evidence of the prior conspiracy was

necessary to establish James’ and Richard’s intent to distribute and

their motives in undertaking certain actions and dealing with certain

Aee-4 |

Unrrep StaTEs v. SMITH | 5

persons. Details of the operations also revealed similarities between

the charged conduct and the previous operations—evidence of a com-

mon scheme or plan. The decision of the district court to admit Rule

404(b) evidence is discretionary and will not be disturbed unless it is

arbitrary or irrational. See, e.g., United States v. Rawle, 845 F.2d

1244, 1247 (4th Cir. 1988). In the present case, the asserted grounds

for the admission of the Rule 404(b) evidence were reasonable and

the district court was within its discretion to admit the evidence.

Moreover, the district court instructed the jury, ''You have heard quite

a bit of tesumony of prior misconduct on their [the defendants’] part,

but they are not on trial for that, and the only crimes that you are

responsible for is what is contained in that indictment." J.A. at 235.

As this court has previously held, "[t]he jury is generally presumed

to be able to follow" a tial court’s evidentiary instructions. United

States v. Jones, 907 F.2d 456, 460 (4th Cir. 1990), cert. denied, 112

L. Ed. 2d 675 (1991). In this case, the trial court’s instructions on the

prior acts evidence properly confined the jury’s focus to consideration

of the evidence in light of the purposes for which the evidence had

been introduced.

James argues that, at the very least, the district court should have

severed his tmal from that of the other defendants. He contends that

the prior acts evidence was most relevant to the drug conspiracy

charge. Because the drug conspiracy count had been dismissed with

regard to James, and the evidence related primarily to James’ prior

activities, James argues that he was particularly prejudiced by admis-

sion of that evidence. He contends, therefore, that once the trial court

made the decision to admit the prior acts evidence, fairness required

that his trial be severed from that of the other defendants.

‘Lhis argument fails because, as discussed above, James’ prior acts

were admissible against him under Rule 404(b). Generally, persons

indicted together should be tried together, unless such trial would

result in a miscarriage of justice. United States v. Pryba, 900 F.2d

748, 758 (4th Cir.), cert. denied, 112 L. Ed. 2d 258 (1990). Because

the evidence of which James complains would be admissible against

him even at a severed trial, James cannot begin to show that the joint

trial constituted a miscarriage of justice.

APP-5

6 Unrrep STATES V. SMITH

I.

James argues that the tial court erred by not granting his motion

to dismiss the charges or, in the alternative, to suppress evidence, on

the grounds that evidence used against him was derived from testi-

mony he had provided under a grant of immunity. First, James claims

that the Virginia authorities had an obligation, under the terms of

Kastigar v. United States, 406 U.S. 441 (1972), to prove that none of

the evidence that was used against him was derived from the assis-

tance he had earlier provided to the District of Columbia prosecutors.

Under the terms of his plea agreement in the District of Columbia,

signed February 8, 1988, James was granted transactional and use

immunity for uncharged crimes. However, the terms of the agreement

specifically provided:

Nothing in this agreement shall be construed to protect Mr.

Smith in any way from prosecution for: ... any offenses

committed by him after the date of this agreement. The

information and documents that he discloses to the Govern-

ment pursuant to this agreement may be used against him in

any such prosecution.

J.A. at 70. The tial court found that (with the exception of the drug

trafficking conspiracy count against James which was dismissed on

Double Jeopardy grounds) the charges in the present case were all

"new crimes" under the terms of the plea agreement. The record sup-

ports this finding. Thus, by the terms of the plea agreement, the Gov-

erment was entitled to use any information provided by James in the

prosecution of these crimes. The Government bore no burden to show

that the D.C. prosecutors had not shared informaton with the Virginia

authontes.

James also was granted use immunity by a letter from Assistant

United States Attomey Liam O’Grady, dated Apri] 21, 1988. That let-

ter extended use immunity to James in exchange for his agreement to

"cooperate fully’ with investigators with respect to their ongoing

investigation concerning drug trafficking in Virginia. However, the

district court made an explicit factual finding that James breached this

agreement. Contrary to James’ assertion, this finding was not based

on the district court’s failure to distinguish between the meaning of

APP-%

Unrrep StaTeEs v. SMITH 7

“active" and "full" cooperation, as commonly used in plea agreements.’

Instead, even interpreting "full" cooperation as James urges, the dis-

trict court’s factual finding that "Smith had considerable knowledge

about Richmond narcotics that he did not share with the authorities"

is dispositive of whether James had complied with the plea agree-

ment. See United States v. Smith, 759 F. Supp. 304, 309 (E.D. Va.

1991). Having breached the terms under which AUSA O’Grady

offered him immunity, James cannot seek shelter under that agree-

ment. Because James was not entitled to immunity, this court need

not address the issue of whether the prosecution met its burden, under

Kastigar, of proving that its evidence was not derivative of evidence

obtained under a grant of use immunity. 7

I.

Richard makes several arguments regarding the admission of incul-

patory statements that he made prior to his arrest. The facts regarding

these statements are largely undisputed. Richmond Police Detective

D.R. Carter went to Richard’s home seeking to obtain his cooperation

in the investigation of a related drug trafficking case. Richard was not

home, so Detective Carter left a note on the front door asking Richard

to contact Carter, stating that Richard "will be able to save himself

some serious problems by talking with us." J.A. at 114. Several days

later, Richard called Carter. Carter told Richard that he was under

investigation, tha. the agents wanted his cooperation, and that he

should hire a law¥€r. Instead, Richard came to the FBI office and met

with Carter and FBI agent Terry Carney. The officers informed Rich-

ard that he was not under arrest and that he could leave at any ume.

The officers also advised Richard of his Miranda nghts. During the

course of the ensuing conversation, Richard admitted that he had sold

some cocaine and heroin during the summer of 1989.

First, Richard argues that Detective Carter’s note should be inter-

preted as a binding agreement, and that a reasonable interpretation of

“James contends that in the specialized context of plea agreements "full"

cooperation means merely the provision of information, in contrast to "ac-

uve'’ cooperation which includes affirmative action to aid law enforcement

authorities in the investigation and prosecution of criminal activity. We

express no opinion on the validity of this distinction.

APP -7

8 Unrtep StaTEs Vv. SMITH

the note’s assurance that Richard could ''save hirnself some serious

problems" was as a promise that Richard could avoid prosecution by

talking with Detective Carter. This position has no merit. No reason-

able person could interpret Carter's note as a plea agreement binding

upon the Government. The case Richard relies upon, Cooper v.

United States, 594 F.2d 12 (4th Cir. 1979), to the questionable extent

that portions of the opinion may have survived the Supreme Court’s

conflicting decision in Mabry v. Johnson, 467 U.S. 504 (1984), per-

tained to an agreement proffered by the Government that was "'spe-

cific, unambiguous and not unreasonable on its face."' 594 F.2d at 19.

Obviously, Detective Carter's note does not meet these criteria. Cf.

Plaster v. United States, 789 F.2d 289, 292-93 (4th Cir. 1986) (dicta

indicating Cooper was overruled by Mabry).

Alternatively, Richard argues that the note was coercive, tainting

his subsequent inculpatory statements and rendering them inadmissi-

ble under the Fifth Amendment. However, even if the note could be

read as implicitly threatening, the taint of the note clearly does not

continue past Richard’s voluntary appearance at the FBI office, the

assurance that he was free to leave, and the agents’ advice that Rich-

ard obtain an attorney prior to making a statement. See, e.g., United

States v. Pelton, 835 F.2d 1067, 1071 (4th Cir. 1987) ("voluntariness

of a statement is to be determined from the ‘totality of the circum-

stances’"'), cert. denied, 486 U.S. 1010 (1988); United States v. Fazio,

914 F.2d 950, 956 (7th Cir. 1990) (suspect’s voluntary appearance at

police station is evidence of voluntariness of his statement).

Richard further argues that the Government did not prove, by the

requisite level of proof, that he voluntarily waived his Miranda nghts.

However, Miranda protections apply only to custodial interrogation.

See, e.g., Berkemer v. McCarty, 468 U.S. 420 (1984). As discussed

above, Richard was under no coercion to provide a statement, and

was free to terminate the interview and leave the presence of the offi-

Cers at any time. As a result, the police were under no obligation to

even provide Richard with the Miranda warnings, and the Govern-

ment bears no burden to show a voluntary waiver of these protections.

Finally, Richard argues that, having made the decision to admit his

inculpatory statements, the trial judge was under the obligation to

instruct the jury that they could only consider the statements if they

APP-8

UNrTeD StaTEs V. SMITH 9

found them to be voluntary. See United States v. Inman, 352 F.2d 954

(4th Cir. 1965). The continuing vitality of the Jnman ruling has been

called into question by the Supreme Court’s subsequent decision in

Lego v. Twomey, 404 U.S. 477, 489-90 (1972) (suggesting that defen-

dant is not entitled to have jury decide voluntariness issue anew after

preliminary judicial determination, but basing the decision, in part, on

the fact that the issue was not raised below). See United States v.

Buie, 538 F.2d 545, 547 (4th Cir. 1976) (declining to decide whether

Lego overruled /Jnman on this issue).

Since Jnman, Congress has enacted a legislative framework for the

admission of confessions, requiring 1) an initial judicial determination

of voluntariness, 2) admission, before the jury, of all relevant evi-

dence on the issue of voluntariness, and 3) an instruction to the jury

to accord the confession "such weight ... as the jury feels it deserves

under all the circumstances." 18 U.S.C. § 3501. In light of the subse-

quent judicial and legislative developments in this area of the law,

Inman is of dubious validity at best. Regardless of its status, however,

there is no question that the jury instructions mandated by both Jnman

and section 3501 are applicable only if the defendant has contested,

at trial, the voluntariness of his confession. See, e.g., United States v.

Sebetich, 776 F.2d 412, 422 n.16 (3d Cir. 1985), cert. denied, 484

U.S. 1017 (1988). In this case, there is nothing in the record to indi-

cate that Richard made the voluntariness of his confession an issue at

trial. As a result, it was not error for the trial court to have declined

to instruct the jury on this matter.

IV.

Finally, James and Richard contend that the outcome of their case

was biased by the distmct court’s jury instructions. In particular, the

defendants dispute the district court’s instructions relating to the Gov-

ermmeni witnesses testifying pursuant to plea agreements. The mal

judge instructed the jury, "[I]t doesn’t make any difference how hard

the defendant pleads for reduction of sentence and how much the gov-

ernment says he is cooperating, and how highly they think of the wit-

ness’ testimony, it is the judge’s sole responsibility to determine

whether there will be a reduction of sentence." J.A. at 239. James and

Richard had sought to discredit damaging testimony by arguing that

the Government witnesses had self-interested motives to exaggerate

AfP-4

10 Unrrep States v. SMITH

their testimony to gain the Government’s favor. They argue that the

above instruction misled the jury about the strength of that motivation

by downplaying the Government's potential to affect the trial court’s

sentencing decision.

This argument has no merit. First, the district court’s instruction

was an accurate representation of the law. Second, the district court

had previously instructed the jury on witness credibility in general,

indicating that the testimony of former accomplices who entered plea

agreements with the Government should be considered with "cau-

tion." J.A. at 237. Read as a whole, the court’s jury instructions prop-

erly conveyed to the jury the appropriate concerns to consider in

evaluating the credibility of the Government witnesses. See United

States v. Curry, 512 F.2d 1299 (4th Cir.) (not "plain error’ for trial

court to refuse to give specific credibility instruction pertaining to

witnesses testifying pursuant to grant of immunity where court

instructed on witness credibility in general), cert. denied, 423 U.S.

832 (1975).

7.

We find no error in the proceedings before the district court. For

the foregoing reasons, the convictions of James and Richard are

hereby

AFFIRMED.

UNITED STATES DISTRICT COURT

FOR THE EASTERN District of

VIRGINIA/Ric} i Divisi

UNITED STATES OF AMERICA, JUDGMENT IN

A CRIMINAL CASE

Vv. (For Offenses

Committed On Or

After November 1,

JAMES EDWARD SMITH 1987 )

Case Number: Criminal

No. = - -

THE DEFENDANT:

pleaded guilty to count(s)

was found guilty on count(s) 2,3,4,7

and 9 of the indictment after a plea of

not guilty.

Accordingly, the defendant is

adjudged guilty of such count(s), which

involve the following offenses:

Title & Section Nature of Offense

18:922(g) Possession of firearm by

convicted felon

16:1952(a)(3) & Interstate Travel in Aid

2 of Racketeering; aid &

abet

21:841(a)(1) & Possession with Intent to

18:2 distribute one or more

kilograms of heroin; aid &

abet

21:843(b) Use of Telephone in

Narcotics Trafficking

21:841(a)(1) Distribution of 100 or

& 18:2 more Grams of Heroin; aid

& abet

Date Offense ‘“oncluded Count Numbers

3/9/88 2

Apr -i\

ili ata i al eel

3/9/88

3/9/88

4/28/89

5/1/89

The defendant is sentenced as

provided in pages 2 through 4 of this

judgment. The sentence is imposed

pursuant to the Sentencing Reform Act of

1984.

On) & W

x The defendant has been found not guilty

on count 8 , and is discharged as to

such count.

x Count 5 is dismissed on the motion

of the United States.

x It is ordered that the defesdant shall

pay a special assessment of $250.00, for

count(s) 2,3,4,7 and 9,

IT IS FURTHER ORDERED that the

defendant shall notify the United States

attorney for this district within 30 days

of any change of name, residence, or

mailing address until all fines,

restitution, costs, and special

assessments imposed by this judgement are

fully paid.

Defendant's Social Sec. No.: 227-36-2345

Defendant's Date of Birth: ]-9-35

Defendant's Mailing Address:

Ft. Washington, MD 20744

Defendant's Residence Address:

Same as Above

May 16, 199]

Date of Imposition of sentence

Signature of Judicial Officer

Richard L. Williams

Name & Title of Judicial Officer

May 16, 1991

Date

Are-is

Defendant: James Edward Smith page 2 of 4

Case Number: Criminal No. CR 90-00071-01-R

IMPRISONMENT

The defendant is hereby committed to

the custody of the United States Bureau of

Prisons to be imprisoned for a term of 120

months on Count: 60 months on Count 3; 400

m . :

and, 120 months on Count 9. The terms of

imprisonment of Counts 2,3,7 and 9 are to

run consecutively to each other and

concurrently to the term of imprisonment

on Count 4.

This sentence is to run consecutively to

any other sentence the defendant is

presently serving.

x The Court makes the following

recommendations to the Bureau of Prisons:

that the defendant be incarcerated in an

institution where the defendant may

receive medical treatment and where the

safety of the defendant may be maintained

with respect to witnesses in this case and

any known enemies of the defendant.

x The defendant is remanded to the custody

of the United States marshal.

_ The defendant shall surrender to the

United States marshal for this district,

- & a.m., p.m. on

_ as notified by the United States marshal

_ The defendant shall surrender for

service of sentence at the institution

designated by the Bureau of Prisons,

_ before 2 p.m. on

as notified by the United States marshal

as notified by the probation office.

RETURN

I have executed this judgment as follows:

Defendant delivered on to at

, with certified copy of this

judgment.

United States Marshall

By

Deputy Marshal

Ave-\S

Defendant: James Edward Smith page 3 of 4

Case Number: Criminal No. CR 90-00071-01-R

SUPERVISED RELEASE

Upon release from imprisonment, the

defendant shall be on supervised release

fora one. on Y_years on Count 2i 3 years

While on supervised release, the

defendant shall not commit another

federal, state, or local crime and shall

not illegally possess a controlled

Substance. The defendant shall comply

with the standard conditions that have

been adopted by this Court (set forth

below). If this judgment imposes a

restitution obligation, it shall be a

condition of supervised release that the

defendant pay any such restitution that

remains unpaid at the commencement of the

term of supervised release. The defendant

shall comply with the following additional

conditions:

_ The defendant ‘shall report in person to

the probation office in the district to

which the defendant is released within 72

hours of release from the custody of the

Bureau of Prisons.

_ The defendant shall pay any fines that

remain unpaid at the commencement of the

term of supervised release.

The defendant shall not possess a

firearm or destructive device.

Are -

SUPREME COURT OF THE UNITED STATES

No.

A-155

James Edward Smith,

Petitioner

Vv.

United States

ORDER

UPON CONSIDERATION of the application

of counsel for the petitioner,

IT IS ORDERED that the time for

filing a petition for a writ of certiorari

in the above-entitled case, be and the

same is hereby, extended to and including

October 8, 1992 , 1992.

/s/ William H, Rehnquist

Chief Justice of the

United States

Dated this 25th

day of August, 1992.

ApP-11

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmend Division

UNITED STATES OF AMERICA

Vv.

JAMES EDWARD SMITH

a.k.a. “Smitty”

a.k.a. "Dumptruck Smitty"

(Counts 1 though 5,

8 and 9)

OLIVIA BRATTON

a.K.a. "Peaches"

(Counts 1 and 9)

RICHARD LEANDER SMITH

a.K.a. "Peter"

(Counte i, 3, 4,

10, 11 and 12)

ee eee eee”

CRIMINAL NO.

21 U.S.C. § 846

Conspiracy to

Distribute One

or More Kilo-

grams of Heroin

(Count 1)

is JU.8.c.

§ 922(g)

Felon in Poss-

ession of a

firearm

(Count 2)

if U.s.€.

§ 1952(a)(3)

Interstate

Travel in Aid

of Racketeering

(Count 3)

21 VU.8.C.

§ 841(a)(1)

Possession with

Intent to Dist-

ribute one or

more kilograms

of Heroin

(Count 4)

an U.8.C.

§ 843(b)

Use of Tele-

phone in

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

Aee-

Narcotics Tra-

fficking

(Counts 5,7,8

and 10)

44 UiBscG.

§ 841(a)(1)

Distribution of

Heroin (Counts

6 and 11)

ai U.8:.G.-

§ 841(a)(1)

Distribution of

100 or more

Grams of Heroin

(Count 9)

aa ¥U.8.C.

§ 841(a)(1)

Distribution of

Cocaine

(Count 12)

IS]

AUGUST 1990 TERM - At Richmond

COUNT ONE

THE GRAND JURY CHARGES THAT from on

or about February 9, 1988, the exact date

being unknown to the Grand Jury, and

continuously thereafter up to and

including the filing of this indictment,

in the Eastern District of Virginia, and

elsewhere, JAMES EDWARD SMITH, a.k.a.

"Smitty," a.k.a. "Dumptruck Smitty,"

OLIVIA BRATTON, a.k.a. "Peaches," and

RICHARD LEANDER SMITH, a.k.a. "Peter," the

defendants herein, did unlawfully,

Knowingly and intentionally combine,

conspire, confederate and agree with each

other, and with other persons, both known

and unknown to the Grand Jury, to commit

the following offenses against the United

States of America:

he To knowingly, intentionally and

unlawfully possess with intent to

Are -30 |

distribute one (1) kilogram or more of a

mixture and substance containing a

detectable amount of heroin, a Schedule I

narcotic controlled substance, in

violation of Title 21, United States Code,

Section 84l(a)(1).

y To knowingly, intentionally and

unlawfully distribute one (1) kilogram or

more of a mixture and substance containing

a detectable amount of heroin, a Schedule

I narcotic controlled substance, in

violation of Title 21, United States Code,

Section 841(a)(1).

7 To knowingly, intentionally and

unlawfully distribute one hundred (100)

grams or more of a mixture and substance

containing a detectable amount of heroin,

a Schedule I narcotic controlled

substance, in violation of Title 2l,

United States Code, Section 841l(a)(1).

4. To knowingly, intentionally and

unlawfully travel in interstate commerce

APP-2\

and cause others to travel in interstate

commerce with the intent to promote,

manage, establish, carry on, and

facilitate the promotion, management,

establishment, and carrying on of an

unlawful activity, in violation of Title

18, United States Code, Section 1952(a)(3)

and 2.

A. WAYS, MANNER AND MEANS

OF THE CONSPIRACY

The ways, manner and means by which

the conspirators carried out the purpose

of the conspiracy includes, but is not

limited to, the following:

It was part of the conspiracy

that the defendants and co-conspirators

would transport supplies of heroin, and

other controlled substances, various drug

paraphernalia, substantial sums of money,

and firearms, from the District of

Columbia and other jurisdictions outside

of the.Eastern District of Virginia, to

ApP- 2a

:

the Eastern District of Virginia.

Be It was further part of the

conspiracy that the defendants and co-

conspirators secreted supplies of heroin,

other controlled substances, various drug

paraphernalia, substantial sums of money,

and weapons, in storage lockers in and

around Richmond, Virginia, in the Eastern

District of Virginia.

. # It was further part of the

conspiracy that the defendants and co-

conspirators would and did "cut" the

heroin and other controlled substances,

that is, add a non-controlled substance to

the heroin or other controlled narcotic

substances, in order to maximize the total

amount of controlled substances for sale

and to maximize their profits.

4. It was further part of the

conspiracy that additional supplies of

heroin would be transported to the Eastern

District of Virginia and mixed with

Arr-23

supplies of heroin already stored, held

and secreted in the Eastern District of

Virginia in order to increase the purity

of the heroin and its acceptability among

the heroin customers.

- It was further part if the

conspiracy that the defendants and co-

conspirators sold heroin and other

narcotic controlled substances in and

around Richmond, Virginia, in the Eastern

District of Virginia.

6. It was further part of the

conspiracy that defendants and co-

conspirators would and did derive

substantial sums of money from the

knowing, intentional, unlawful and illegal

sales of heroin and other controlled

narcotic substances, in and around

Richmond, Virginia, in the Eastern

District of Virginia.

7s It was further part of the

conspiracy that the defendants and co-

age -24 |

conspirators would meet periodically in

Alexandria, Virginia and, subsequently in

Petersburg, Virginia, in the Eastern

District of Virginia, and elsewhere, to

receive instructions on how the money and

the heroin were to be directed, moved, and

to decide to whom it was to be given.

8. It was further part of the

conspiracy that the defendants and co-

conspirators would talk by telephone, to

receive instructions and to coordinate the

movement, direction, and recipients of the

heroin and money.

9. It was further part of the

conspiracy that the heroin and substantial

sums of money were distributed to persons

known and unknown to the Grand Jury at the

direction of a co-conspirator.

B. OVERT ACTS

In furtherance of this conspiracy and

to bring about the objects and goals of

the conspiracy, the defendants, co-

APP-25

conspirators, and unindicted co-

conspirators committed overt acts in the

Eastern District of Virginia and

elsewhere, including, but not limited to,

the following:

Ry On or about Feb 9, 1988, the

exact date being unknown to the Grand

Jury, defendant JAMES EDWARD SMITH, a.k.a.

"Smitty" and James Reginald Smith, a.k.a.

"Scank," an unindicted co-conspirator, met

in Alexandria, Virginia, in the Eastern

District of Virginia, to discuss the

transportation of heroin, other controlled

substances, drug paraphernalia and other

items located in the District of Columbia

and the District of Maryland to the

Eastern District of Virginia.

_@e On or about February 15, 1988,

the exact date being unknown to the Grand

Jury, unindicted co-conspirator James

Reginald Smith, a.k.a. "Scank," at the

direction of defendant, JAMES EDWARD

fr-PP- Ab

SMITH, a.k.a. "Smitty," went to a

residence in Glen Allen, Virginia, in the

Eastern District of Virginia, where he

picked up the keys to various apartments

in the District of Columbia and the

District of Maryland.

ae On or about February 15, 1988,

the exact date being unknown to the Grand

Jury, defendant, OLIVIA BRATTON, a.k.a.

"Peaches," telephoned Excel Alexander,

a.k.a. "Buddy," an unindicted co-

conspirator, and told him that he was to

direct unindicted co-conspirator James

Reginald Smith, a.k.a. "Scank," and other

co-conspirators to certain apartments in

the District of Columbia and the District

of Maryland, and gave him the locations of

those apartments.

4. On or about March 9, 1988, the

exact date being unknown to the Grand

Jury, defendant RICHARD LEANDER SMITH,

a.k.a. "Peter," and unindicted co-

APP. a7

conspirator James Reginald Smith, a.k.a.

"Scank," and other unindicted co-

conspirators, who are unknown to the Grand

Jury, drove from Richmond, Virginia, in

the Eastern District of Virginia, to the

District of Columbia where they met an

unindicted co-conspirator Excel Alexander,

a.k.a. "Buddy."

o. On or about March 9, 1988, the

exact date being unknown to the Grand

Jury, defendant RICHARD LEANDER SMITH,

a.k.a. "Peter," unindicted co-conspirators

James Reginald Smith, a.k.a. "Scank," and

Excel Alexander, a.k.a. "Buddy," and other

unindicted co-conspirators, who are

unknown to the Grand Jury, went to various

residences, premises and locations in the

District of Columbia and the District of

Maryland, which were under the control of

defendant JAMES EDWARD SMITH, a.k.a.

"Smitty," and removed, inter alia,

quantities of heroin, drug paraphernalia,

Are-22

other controlled substances, drug proceeds

i.e., money, and firearms from those

residences, premises, and locations.

6. On or about March 9, 1988, the

exact date being unknown to the Grand

Jury, defendant RICHARD LEANDER SMITH,

a.k.a. “Peter," unindicted co-

conspirators, who are unknown to the Grand

Jury, transported a quantity of heroin,

other controlled substances, drug

proceeds, i.e., money, drug paraphernalia

and firearms from the District of Columbia

to the Eastern District of Virginia, to be

stored for later distribution and sale.

Fe From on or about March 15, 1988,

the exact date being unknown to the Grand

Jury, and on multiple occasions

thereafter, in Richmond, Virginia, in the

Eastern District of Virginia, unindicted

co-conspirator James Reginald Smith,

a.k.a. "“Scank" distributed amounts of

heroin in excess of personal use amount to

AeP- 24

defendant RICHARD LEANDER SMITH, a.k.a.

"Peter," for sale and redistribution.

8. In or about January, 1989, the

exact date being unknown to the sSrand

Jury, unindicted co-conspirator James

Reginald Smith, a.k.a. "Scank" met with

Gefendants JAMES EDWARD SMITH, a.k.a.

"Smitty" and OLIVIA BRATTON, a.k.a.

"Peaches," in Petersburg, Virginia, in the

Eastern District of Virginia, and informed

them that the heroin that had been

provided was of a poor quality.

9. On or about February 1, 1989,

the exact date being unknown to the Grand

Jury, unindicted co-conspirators James

Reginaid Smith, a.k.a. "Scank," and

Charles Henry Smith, a.k.a. "Dickie," at

the direction of defendant, JAMES EDWARD

SMITH, a.k.a. "Smitty," carried

approximately $35,000 in drug proceeds

belonging to defendant, JAMES EDWARD

SMITH, a.k.a. "Smitty," to an individual

Ape-30

in the District of Columbia, who is known

to the Grand Jury.

10. On or about March 3, 1989,

defendant JAMES EDWARD SMITH, a.k.a.

"Smitty," in Petersburg, Virginia, in the

Eastern District of Virginia, telephoned

unindicted co-conspirator Charles Henry

Smith, a.k.a. “Dickie," in Richmond,

Virginia, and was informed that defendant

RICHARD LEANDER SMITH, a.k.a. "Peter," had

not meet with unindicted co-conspirator,

James Reginald Smith, a.k.a. "Scank," and

defendant JAMES EDWARD SMITH, a.k.a.

"Smitty," told unindicted co-conspirator

Charles Henry Smith, a.k.a. "Dickie," to

keep defendant RICHARD LEANDER SMITH,

a.k.a. "Peter," out of the conspiracy to

distribute heroin.

11. On or about April 14, 1989,

defendant JAMES EDWARD SMITH, a.k.a.

"Smitty," in Petersburg, Virginia, in the

Eastern District of Virginia, telephoned

APE -31

unindicted co-conspirator Charles Henry

Smith, a.k.a. "Dickie," in Richmond,

Virginia, and informed him that he had

arranged for unindicted co-conspirator

James Reginald Smith, a.k.a. "Scank" to

provide heroin to him, after being cut off

from the heroin supply that unindicted co-

conspirator James Reginald Smith, a.k.a.

"Scank" had.

12. On or about April 25, 1989, the

date being unknown to the grand Jury,

defendant RICHARD LEANDER SMITH, a.k.a.

"Peter," sold one "spoon" (approximately

1.8 grams) of heroin to unindicted co-

conspirator Evans Lee Gordon, in Richmond,

Virginia.

13. On or about April 28, 1989, at

7:03 a.m., defendant JAMES EDWARD SMITH,

a.k.a. “Smitty,” in Petersburg, Virginia,

in the Eastern District of Virginia,

telephoned unindicted co-conspirator

Charles Henry Smith, a.k.a. "Dickie" and

APpP-3=5

ordered him to provide a quantity of

heroin to an unindicted co-conspirator who

is unknown to the Grand Jury.

14. On or about April 28, 1989,

defendant JAMES EDWARD SMITH, a.k.a.

"Smitty," telephoned unindicted co-

conspirator James Reginald Smith, a.k.a.

"Scank," to ask if defendant OLIVIA

BRATTON, a.k.a. "Peaches" was going to

deliver a quantity of heroin May 1, 1989,

and unindicted co-conspirator James

Reginald Smith, a.k.a. "“Scank," responded

he would make sure that she did.

15. On or about May 1, 1989, the

exact date being unknown to the Grand

Jury, unindicted co-conspirator James

Reginald Smith, a.k.a. "Scank," was

provided in excess of one hundred grams of

heroin by defendant OLIVIA BRATTON, a.k.a.

"Peaches," in Richmond, Virginia in the

Eastern District of Virginia.

16. On or about May 14, 1989, the

Are -33

exact date being unknown to the Grand

Jury, unindicted co-conspirator James

Reginald Smith, a.k.a. "Scank," gave

approximately $25,000 in U.S. currency to

defendant OLIVIA BRATTON, a.k.a.

"Peaches," in payment for heroin

previously provided on or about May l,

1989, the exact date being unknown to the

Grand Jury.

17. On or about June 1, 1989, the

exact date being unknown to the Grand

Jury, unindicted co-conspirator James

Reginald Smith, a.k.a. "Scank" provided

defendant OLIVIA BRATTON, a.k.a.

"Peaches," with $25,000 in payment for

heroin previously provided on or about May

1, 1989, the exact date being unknown to

the Grand Jury.

18. On or about October 20, 1989, in

Hanover County, Virginia, in the Eastern

District of Virginia, defendant JAMES

EDWARD SMITH, a.k.a. "Smitty," possessed

Are- 34

POS & ig bernis &.

with the intent to distribute in excess of

one kilogram of heroin.

19. On or about October 20, 1989, in

Hanover County, Virginia, in the Eastern

District of Virginia, defendant JAMES

EDWARD SMITH, a.k.a. "Smitty," was in

possession of a firearm.

(In violation of Title 21, United States

Code, Section 846. )

HPP -35

—_——a

THE GRAND JURY FURTHER CHARGES THAT

COUNT TWO

on or about March 9, 1988, the exact date

being unknown to the Grand Jury, in

Richmond, Virginia, in the Eastern

District of Virginia, and within the

jurisdiction of this Court, defendant

JAMES EDWARD SMITH, a.k.a. "Smitty,"

having previously been convicted on

December 3, 1973, in the United States

District Court for the Eastern District of

Virginia, Richmond Division, of a crime

punishable by imprisonment for a term

exceeding one year, did knowingly and

unlawfully possess and receive a firearm,

to wit: a .44 caliber Magnum Ruger, Serial

Number 80-13044; a .44 caliber Magnum

Ruger, Serial Number 82-57673; a .38

caliber Smith and Wesson revolver, Model

19-3, Serial Number 13-D 2862; a 30/30

Winchester Model 94, Serial Number 50

89155; and a Colt 45, semiautomatic

APP - 2G

pistol, Serial Number 70G72648, which had

been shipped and transported in interstate

and foreign commerce.

(In violation of Title 18, United States

Code, Section 922(g).)

Ap? - 37

eT

COUNT _THREE

THE GRAND JURY FURTHER CHARGES THAT

On or about March 9, 1988, the exact date

being unknown to the Grand Jury,

defendant, JAMES EDWARD SMITH, a.k.a.

"Smitty," did unlawfully, knowingly, and

willfully cause another to travel, and

defendant, RICHARD LEANDER SMITH, a.k.a.

"Peter," did unlawfully, knowingly and

willfully travel in interstate commerce

from Richmond, Virginia, in the Eastern

District of Virginia, and within the

jurisdiction of this Court, to the

District of Columbia, and return to

Richmond, Virginia, within the Eastern

District of Virginia, with intent to

promote, manage, establish, carry on, and

facilitate the promotion, management,

establishment, and carrying on, of an

unlawful activity, to wit: a business

enterprise involving the distribution of

and possession of, with intent to

ApP-38

distribute, heroin, a Schedule I narcotic

controlled substance, and thereafter the

said defendants did perform, attempt to

perform and cause to perform acts to

promote, manage, establish, carry on, and

facilitate the promotion, management,

establishment and carrying on, of the

aforesaid unlawful activity.

(In violation of Title 18, United States

Code, Sections 1952(a)(3) and 2.)

COUNT FOUR

THE GRAND JURY FURTHER CHARGES THAT

On or about March 9, 1988, the exact date

being unknown to the Grand Jury, in

Richmond, Virginia, in the Eastern

District of Virginia, and within the

jurisdiction of this Court, defendant

JAMES EDWARD SMITH, a.k.a. "Smitty," and

defendant RICHARD LEANDER SMITH, a.k.a.

"Peter," did knowingly, intentionally and

unlawfully possess with intent to

distribute one (1) kilogram or more of

heroin, a Schedule I narcotic controlled

substance.

(In violation of Title 21, United States

Code, Section 841(a)(1) and Title 18,

United States Code, Section 2. )

COUNT FIVE

THE GRAND JURY FURTHER CHARGES THAT

on or about April 14, 1989, in Petersburg,

Virginia, in the Eastern District of

Virginia, and within the jurisdiction of

APP -Y4O

this Court, and elsewhere, the defendant,

JAMES EDWARD SMITH, a.k.a. "Smitty," did

unlawfully, knowingly and intentionally

use a communication facility, that is, a

telephone, in facilitating the unlawful,

knowing and intentional distribution of

and possession with intent to distribute

heroin, a Schedule I narcotic controlled

substance.

(In violation of Title 21, United States

Code, Section 843(b). )

ApP-4 |

COUNT SIX

THE GRAND JURY FURTHER CHARGES THAT

on or about April 25, 1989, the exact date

being unknown to the Grand Jury, in

Richmond, Virginia, in the Eastern

District of Virginia, and within the

jurisdiction of this Court, defendant

RICHARD LEANDER SMITH, a.k.a. "Peter," did

knowingly, intentionally and unlawfully

distribute heroin, a Schedule I narcotic

controlled substance.

(In violation of Title 21, United States

Code, Section 841(a)(1).) |

COUNT SEVEN

THE GRAND JURY FURTHER CHARGES THAT

On or about April 28, 1989, in Petersburg,

Virginia, in the Eastern District of

Virginia, and within the jurisdiction of

this Court, and elsewhere, the defendant,

JAMES EDWARD SMITH, a.k.a. "Smitty," did

unlawfully, knowingly and intentionally

use a communication facility, that is, a

AeY-4 2

q

é

telephone, in facilitating the unlawful,

knowing and intentional distribution of

and possession with intent to distribute

heroin, a Schedule I narcotic controlled

substance.

(In violation of Title 21, United States

Code, Section 843(b).)

APP-4YS

COUNT EIGHT

THE GRAND JURY FURTHER CHARGES THAT

On or about April 28, 1989, in Petersburg,

Virginia, in the Eastern District of

Virginia, and within the jurisdiction of

this Court, and elsewhere, the defendant,

JAMES EDWARD SMITH, a.k.a. "Smitty," did

unlawfully, knowingly and intentionally

use a communication facility, that is, a

telephone, in facilitating the unlawful,

knowing and intentional distribution of

and possession with intent to distribute

heroin, a Schedule I narcotic controlled

substance.

(In violation of Title 21, United States

Code, Section 843(b).)

COUNT NINE

THE GRAND JURY FURTHER CHARGES THAT

on or about May 1, 1989, the exact date

being unknown to the Grand Jury, in

Richmond, Virginia, in the Eastern

District of Virginia, and within the

ArP- 44

jurisdiction of this Court, the

defendants, OLIVIA BRATTON, a.k.a.

"Peaches" and JAMES EDWARD SMITH, a.k.a.

"Smitty," did knowingly, intentionally and

unlawfully distribute one hundred (100)

grams or more of heroin, a Schedule I

narcotic controlled substance.

(In violation of Title 21, United States

Code, Section 841(a)(1) and Title 18,

United States Code, Section 2. )

Ar? -4¥5

COUNT TEN

THE GRAND JURY FURTHER CHARGES THAT

on or about June 18, 1989, in Richmond,

Virginia, in the Eastern District of

Virginia, and within the jurisdiction of

this Court, the defendant, RICHARD LEANDER

SMITH, a.K.a. "Peter," did unlawfully,

knowingly and intentionally use a

communication facility, that is, a

telephone, in facilitating the unlawful,

knowing and intentional distribution of

and possession with intent to distribute

cocaine, a Schedule II narcotic controlled

substance.

(In violation of Title 21, United States

Code, Section 843(b). )

COUNT ELEVEN

THE GRAND JURY FURTHER CHARGES THAT

in or about the summer of 1989, the exact

date being unknown to the Grand Jury, in

Richmond, Virginia, in th Eastern

District of Virginia, a... within the

Are-4b

jurisdiction of this Court, defendant

RICHARD LEANDER SMITH, a.k.a. "Peter," did

knowingly, intentionally and unlawfully

distribute heroin, a Schedule I narcotic

controlled substance.

(In violation of Title 21, United States

Code, Section 841(a)(1).)

COUNT TWELVE

THE GRAND JURY FURTHER CHARGES THAT

in or about the summer of 1989, the exact

date being unknown to the Grand Jury, in

Richmond, Virginia, in the Eastern

District of Virginia, and within the

jurisdiction of this Court, defendant

RICHARD LEANDER SMITH, a.k.a. "Peter," did

knowingly, intentionally and unlawfully

distribute cocaine, a Schedule II narcotic

controlled substance.

(In violation of Title 21, United States

Code, Section 841(a)(1).)

A TRUE BILL

FOREMAN

HENRY E. HUDSON

UNITED STATES ATTORNEY

/S/ ROSCOE C. HOWARD. JR.

Roscoe C. Howard, Jr.

Assistant United States Attorney

Ape-4S " |

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

THE UNITED STATES OF AMERICA

vs.

JAMES EDWARD SMITH, aka "Smitty"

"Dumptruck Smitty"

OLIVIA BRATTON, aka "Peaches"

RICHARD LEANDER SMITH, aka "Peter"

In violation

—— eee ee ee ee ee ee

ee

INDICTMENT

of 21 U.S.C. § 846,

Conspiracy to Distribute Heroin.

In violation

of 18 U.S.C. § 922(g), Felon

in Possession of a Firearm.

In violation

of 18 U.S.C. § 1952(a)(3),

Interstate Travel in Aid of Racketeering.

In violation

Possession w

Heroin.

In violation

Telephone in

In violation

Distribution

of 21 U.S.C. § S4i(e)(1i),

ith Intent to Distribute

of 21 U.S.C. § 843(b), Use of

Narcotics Trafficking.

ef 2. U.8.C. F Bee Chit s7,

of Heroin and Cocaine.

ee ee

ee ee

Are-4

A true bill.

ined diame dicted aaitenle, = ee i

Filed in open court this day,

of A.D. 19

Dui dehukek accpeuiieaces Pee

Bail, $

~ SSS CGS SSSt eae euneuaeeuacenanannac...

SS SSSSSCSSSSSSs esses ssseeesewsesauaa

APP—-SD

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

UNITED STATES OF AMERICA,

ho

CRIM. NO.

90-00071-R

V «

JAMES EDWARD SMITH,

NDER SEAL

we eee eee”

Defendant.

ORDER

This matter is before the Court on

Defendant James Edward Smith's motions to

dismiss Count I of the Indictment, and for

a further hearing under Kastigar. For the

reasons stated in the accompanying

Memorandum Opinion, the Court DISMISSES

Defendant James Edward Smith from Count I

of the Indictment in this matter, and

DENIES the Defendant's motion for

additional hearings under Kastigar.

It is so ORDERED.

App-5 |

|

Let the Clerk send a copy of this

Order and the accompanying Memorandum

Opinion to all counsel of record.

DATE U.S. District Judge

ApP-5 >-

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

UNITED STATES OF AMERICA ) | Filed ;

) ; May 23,

. 3 1991

Vv. ) CRIMINAL NO.

) 90-71R

JAMES E. SMITH )

)

Defendant. )

NOTICE OF APPEAL

Notice is hereby given pursuant Rules

3 and 4 of the Federal Rules of Appellate

Procedure that the defendant, James E.

Smith, by counsel, hereby appeals to the

United States Court of Appeals for the

Fourth Circuit from the judgement of

conviction entered by this Court in this

action on May 16, 1991.

Respectfully submitted,

JAMES E. SMITH

By Counsel

APP-55

COHEN, GETTINGS, ALPER & DUNHAM

2200 Wilson Boulevard, 8th Floor

Arlington, Virginia 22201

(703) 525-2260

By:

Brian P. Gettings

Frank W. Dunham, Jr.

Stewart T. Leeth

CERTIFICATE OF SERVICE

I hereby certify that a true copy of

the foregoing Notice of Appeal, was

mailed, postage prepaid, to Roscoe Howard,

Esquire, Assistant United States Attorney,

1100 East Main Street, Richmond, Virginia

23219, this _22nd day of May, 1991.

Ape -5 4

BY MR. HOWARD:

Q. Ms. Caviness, I would like to

ask you if you remember entering a plea

agreement in the District of Columbia on

October 30, 1987, pleading to one count of

distribution of a controlled substance,

heroin?

A. Yes.

Q. I would like to show you

Government's Exhibit Number 59. Is that

your plea agreement?

A. Yes.

Q. Ms. Caviness, after entering the

plea agreement, you entered into the

witness protection plan; is that correct?

A. Yes.

Q. And you are presently in that

program; is that correct?

A. Yes, I am

oi. Ms. Caviness, I would like to

ask you -- your plea agreement included a

charge of distribution of heroin. Can you

ApPe-sS -

tell the members of the jury when you

started distributing heroin?

A. I think it was in the summer of

1984.

Q. And can you tell the members of

the jury how you got started distributing

heroin?

A. I was having money problems, and

that was the only thing I could do.

Q. Who did you go to in order to

get yourself started, ma'am?

A. Pardon me?

Q. Who did you go to?

A. I went to a friend, Smitty.

Q. And do you know Smitty's real

name?

A. James Smith.

Q. I would like to ask you if he is

present today.

A. Yes.

Q. Would you please point him out?

A. He is right there on the end.

MR. HOWARD: Your Honor, if

the record would reflect an identification

of James Edward Smith.

THE COURT: It will so

reflect.

BY MR. HOWARD:

Q. How were you introduced to

Smitty, ma'am?

A. I had known Smitty for a few

years through a former boy friend of mine.

Q. Who is your ---

A. William Sweeney.

QO. How did Mr. Sweeney know Mr.

Smith?

A. He was friends to him.

Q. How did you approach Mr. Smith

about your getting involved?

A. Pardon me?

Q. How did you approach Mr. Smith?

How did your relationship get started?

A. Well, to tell you the truth, I

was having money problems, and I

AFP -S7)

approached him about doing some work.

Q. When you approached him about

doing some work, what did that mean?

A. Selling drugs.

Q. And did you start selling drugs?

A. Not right away.

Q. What did you start doing?

A. It was about two or three weeks

after I had approached him.

Q. What happened after you

approached him initially?

A. I called him back and he came

by.

Q. When he came by, what did he do

when he came by?

A. Ten quarters Ten or 20

quarters. I forget. It has been awhile.

Q. Quarters are a quantity of

heroin; is that correct?

A. Yes.

Q. Do you know how much is in a

quarter?

A. Approximately a quarter of a

teaspoon, or a little less.

Q. How much were you selling those

for?

A. I was selling them for $20.

Q. How often were you going to Mr.

Smith in order to get these quarters?

A. In the beginning, about once a

week.

Q. And how long were you going to

him for about once a week?

A. Maybe a month or two. I'm not

sure.

Q. At this point, did you increase

the quantity that you were getting from

him?

A. Yes, I did.

O. And what did you -- that was

after the first month you increased the

quantity?

A. Yes.

a Then what did you increase it

APP -59

to?

A To 50.

Q. To 50 quarters?

A. Yes.

Q. How often were you getting 50

quarters?

A. About once a week, sometimes

twice a week.

Q. And for how long did that go on?

A. About three or four months,

approximately.

o. After three or four months,

would that take you into the year 1985?

A. Yes.

Q. What happened in 1985?

A. In 1985, I became pregnant and I

had a baby. I had to stop for awhile

because got sick and I thought I gave

birth to my son.

Q. Eventually, did you get well?

A. Yes. That was about six or

seven weeks.

ApP-¢O j

Q. Did you go back to selling

drugs?

A. Yes, I did.

Q. And do you remember when that

was, approximately?

A. I would say the last part of

August or the first part of September.

Q. Did you return to Mr. Smith in

order to sell drugs?

A. Yes.

Q. Can you tell the members of the

jury how you contacted Mr. Smith?

A. Well, I would call.

Q. And in this case when you

called, did he indicate a willingness to

let you start selling again?

A. Could you explain yourself?

Q. Did he start giving you drugs

again?

A. Yes.

Q. And that was approximately the

fall of 1985?

APP-é |

—

A. Yes. ,

Q. And how much were you selling at

that point?

A. About the same, 50 to 100 a

week.

Q. And you were going to him once a

week; is that correct?

A. Sometimes every two weeks,

because, you know, depending on how fast I

could get rid of them.

Q. How long did that go on?

>

I think October, 1987.

October, 1987?

When I got arrested, yes.

oOo F, DOD

After you got arrested, did you

agree to work with the government?

A. Yes.

Q. And did you start working with

an undercover officer by the name of

Veronica Baker?

A. Yes.

Q. Do you remember introducing

LC? - > i

Veronica Baker to Mr. Smith?

A. Yes.

oO. During that time that you were

working with Mr. Smith, did you learn who

else was in his organization? Who else

distributed drugs for him?

A. No, I didn't.

Q. Do you know where he distributed

drugs?

A. No.

G. Did you ever have oneaaton where

you had a problem contacting Mr. Smith?

A. Yes, I did, sometimes.

G. When you had problems contacting

Mr. Smith, how would you get in touch with

him?

A. I would just call, and if he

wasn't in, I would leave him a message for

him to call me.

Q. Where would you leave a message?

A. I would call his stepdaughter, I

think, or godchild.

A(-P-6 3

Q. Do you Know her name?

A. One of them is Peaches.

Q. Do you know who Peaches is?

A. I have never really met Peaches.

Q. And when you called Peaches,

what would you say?

A. Sometimes I would tell her,

"Tell your father that I called," and if

he didn't call right away, I would call

her back and I would tell her to tell him

that I need to go to the grocery store.

Q. Would you tell her anything

else?

A. Sometimes I would tell him that

I needed to get some shoes or something

like that.

Q. What did tr st mean?

A. That I needed some work.

Q. When you say, "Work," what are

you speaking of?

A. Heroin.

Q. Did you ever use those two

~G

phrases, "I need to go to the grocery

store," or did you say --

A. "The baby needs shoes."

Q. Did you ever use that with

anybody else?

A. No.

G. Did you ever use it with Mr.

Smith?

Occasionally.

Q. How did you come to learn that

that phraseology meant that you needed

heroin?

A. I learned it from a friend of

mine.

Q. Who is your friend?

A. William Sweeney.

Q. How did you learn to contact

Peaches?

A. A niece of mine gave me her

number.

Q. How did you know misses -- how

did you know the woman you know as

APP -<5

aa

Peaches?

A. Her and Mr. Smith --

MR. DOHNAL: Your Honor, I

would object to this line of examination.

This is hearsay.

THE COURT: The objection is

overruled. Proceed.

BY MR. HOWARD:

Q. How did she know Peaches?

A. She was dating Mr. Smith.

Q. Did you ever call Peaches

anywhere other than the limousine service?

A. At her house.

Q. And after you called her, did

she indicate or seem to know what to do?

A. I would give her the message,

and I would say, "Tell your father get in

touch with me," and tell her anything

else. If he called, she would tell him

that.

Q. After you gave that message to

Peaches, did Mr. Smith get in touch with

APP - el j

A. Sometimes. Sometimes he

wouldn't.

Q. In talking with Peaches or Mr.

Smith, did you ever actually use the term

"heroin"?

A. No.

Q. Do you Know why that was?

A. Nobody never came around to use

aes

MR. HOWARD: Your Honor, I

don't have any further questions.

THE COURT: Any cross-

examination, Mr. Dunham or Mr. Gettings?

MR. GETTINGS: Your Honor, could

we defer to Mr. Dohnal on this?

THE COURT: Yes. Mr. Dohnal?

MR. DOHNAL: Thank you, your

Honor.

CROSS EXAMINATION

BY MR. DOHNAL:

Q. Ms. Caviness, when you would

AW-Gil

)

call and leave a message with Peaches, as

you knew her, you would, as you have

indicated, speak in code, you needed baby

shoes, or you needed to go to the grocery

store?

A. And sometimes I would tell her

to tell your father to call me.

Q. But it was never anything more

than that. You never discussed with her

anything involving the drug trade or any

specifics whatsoever?

A. No.

Q. And that was because she wasn't

involved in any of that?

A. To my knowledge.

Q. To your Knowledge, she was not

at all?

A No

Q. The company that -- or the

business that you would call, that was

Professional Limousine Service, was it

not?

Avp-68

A. Yes.

Q. And, in fact, that was a regular

VERONICA BAKER,

called as a witness, having been

first duly sworn by The Clerk,

was examined and testified on her

Oath as follows:

DIRECT EXAMINATION

BY MR. HOWARD:

Q. Ms. Baker, would you

introduce yourself, please?

A. I am Special Agent Veronica

Baker. I work with the Drug Enforcement

Administration.

QO. And how long have your been

employed with the D.E.A.?

A. Oh, about 13 years.

QO. Ma'am, I would like to ask

you if you were working with D.E.A. in

October, 1987.

A. Yes.

Q. And what were your duties

then?

ArP-10

A. I was in the Washington

Field Division. I was assigned to work

undercover on the James Edward Smith case.

Q. During the -- how did you

go in with the government?

A. I was introduced as a

friend and classmate of the informant, Gay

Chauvinist.

Q. Is that DeVoyce Gay

Chauvinist?

A. Yes.

Q. DeVoyce is her first name?

A. DeVoyce.

Q. During the course of this,

did you end up meeting James Edward Smith?

A. Yes, I did.

Q. i would like to ask you if

he is present today?

A. Yes, he is.

Q. Would you please point him

out?

A. He is sitting in a gray

APP-7|

Suit with his hands to his face, and he

wears glasses.

MR. HOWARD: If the record

could reflect an identification of the

defendant.

THE COURT: It will so

reflect.

MR. HOWARD: Thank you.

BY MR. HOWARD:

Q. Who did you determine Gay

Chauvinist was? At that point, who was

Gay Chauvinist supposed to be, I mean,

before she became an informant?

A. She was one of the

violators we were working on, and she was

also a friend of James Edward Smith.

0. Did you at some point get

to meet Mr. Smith?

hs Yes, I did.

oR And do you remember

approximately when that was?

A. It was in the beginning of

P-TA_

November, 1987.

Q. And how did you meet him?

A. I met him at the informant

Gay's house.

Q. Could you determine exactly

why he was coming over at that point?

A. When he was coming over, it was

usually to bring heroin. And then on -- I

would work with Gay, and Gay would speak

to him on the phone and tell him what I

wanted, and he would bring the heroin.

Q. Did there ever come a point

when you and Mr. Smith actually had an

exchange of any sort, either narcotics, or

money for narcotics?

A. Yes. I had seen him a few

times, and, then, finally on December 23,

1987, I had an opportunity to give him

money aS payment for some heroin I had

received.

Q. And how did that

transaction go down, ma'am?

App -13

A. I was in Gay's house, and

Smitty came in, and after the informant

Gay told me, "Ronnie, get the money," I

went into the bedroom and got the money

and came out. I handed it to Mr. Smith.

0. And how much money did you

hand him?

A. It was $3,955.

Q. Do you know what that money

was supposed to be for? What it was --

A. That was payment for a |

previous package of heroin we had

received. !

G. Okay.

And did you designate that

heroin as Exhibit 18?

A. Yes, I did.

Q. I would like to show you

Government's Exhibit 75.

MR. HOWARD: Your Honor, I

have talked to Mr. Dunham. We will have a

Stipulation as to all the drugs involved

Are-7Y )

with Ms. Chauvinist, but this is D.E.A.

74, Governments Exhibit 18.

THE COURT: All right.

BY MR. HOWARD:

Q. Is that the lab report for

that exhibit?

A. Yes, it is.

Q. Did you have another

exchange after that?

A. Yes, we did.

Q. Can you tell the members of

the jury when that exchange took place?

A. It was the following month.

It was about January 21. I had been

waiting for Smith to call at the

informant's house. Finally, he called.

Finally, he said he had it for me around

the corner and for me to meet him at the

hospital.

Q. What happened when you went

around the corner to the hospital?

A. I left the informant's

Affh-7S

house. I walked two and a half blocks to

the hospital ina parking area. Smitty

drove up. I got in the car. He handed me

@ brown paper bag. We drove back. I

looked in the bag. The heroin was in

there. I asked him if he could give me

any bags. He said everything was there.

OD. When you said, "Any bags,

what were you talking about?

A. Little plastic bags, that

you package the heroin in quarters.

QO. I would like to show you

what has been marked as Government's

Exhibit 76. Is that the exhibit you

picked up on -- a lab report of the

exhibit you picked up on January 21?

A. Yes, it is.

O, Ma'am, regardless of the

identification, are these the sorts of

bags that he had asked for -- you had

asked for?

A. Yes.

ApP- Tt

emai ti aiieiiaie

MR. HOWARD: Your Honor, I

will mark the bag I showed her as

Government's Exhibit 81.

THE COURT: All right.

BY MR. HOWARD:

Q. Did you end up paying him

for your Exhibit 22?

A. Yes. I paid about a week

O. And how much did you pay

him, do you remember?

A. I think a little over

$4000. About $4,860.

Q. Did you have another

exchange with him the following that

payment?

Ris The next month.

Q. February 1?

A. February 1, yes.

Q. Can you tell the members of

the jury what happened on that day?

A. I was, again, in the

ApP-77

informant's house. Smith called. He said

he was on his way over. I went downstairs

to meet him. I met him in the vestibule

of the C.I1.A.'s building. He gave me some

heroin. We talked about a future buy. I

told him I wanted to double up on the

amount and that I weuld pay him next time.

Q. And did you -- and what did

you actually get from him?

A. I got heroin again.

Q. Okay.

I would like to show you

what is marked as Government's Exhibit 23.

Is that the drugs from that exchange?

A. Yes.

Q. Did you arrange at that

point to meet him again?

A. i was going to meet him

about a week later on February 6.

Q. And how was that

arrangement made?

| I told him that -- it was a

APP-18

—

Saturday, and I needed to double up on the

amount. He asked me if I -- we talked

about the package, and I told him to put

it all in one package, that I needed to

have it early because out Of town.

Q. Did you end up meeting him

on that day?

A. Yes, on February 6.

2; What happened?

A. He called. We knew that we

were going to arrest him that day. I had

some of my other investigators in the

C.I.A.'sS apartment. When he called, we

told him to come on up, and he did. He

was placed under arrest when he went into

the apartment.

Oo. When he was placed under

arrest, was he searched?

A. Yes. In his pocket, he had

a large quantity of heroin.

Q. I would like to show you

what has been marked as Government's

APP-T9

aii

Exhibit 78. Do you recognize that?

A. Yes.

Q. Is that the lab report of

the heroin you found in his pocket?

A. Yes, it is.

APP —-8O r

A. Approximately nine years.

Q. I would like to ask you if you

were working on August 22, 1985.

A. Yes, I was.

Q. First of ali, in the year 1985,

can you tell the members of the jury what

your duties were?

A. I was in undercover police

officer.

Q. And at some point in 1985, did

you find yourself at a limousine service

Known as C.P.I., Champagne Productions,

Incorporated, looking for a car?

MR. DUNHAM: Your Honor, we

have an objection to this line of

questioning, particularly with regard to

Champagne Productions. I just want to

state it for the record.

THE COURT: All right.

Proceed.

MR. GETTINGS: And our prior

objection we had for everything before.

App -8 |

Cn

THE COURT: That continues

on. Proceed.

MR. GETTINGS: Thank you.

BY MR. HOWARD:

Q. Can you tell the members of the

jury what happened while you were at

C.P.1.?

A. I was there to purchase a car,

to lease a car,

Q. And did anything happen during

the time you were there?

A. Yes. I met Mr. Smith.

QO. And what is his full name,

please?

A. James Edward Smith.

Q. Did you know Mr. Smith?

A. At the time, I knew about him,

yes.

2. Is he present today?

A. Yes, he is.

Could you please point him out?

~> OO

The gentleman sitting there with

APP-& >-

the gray stripped suit with the glasses.

MR. HOWARD: Your Honor, if

the record will reflect an identification

of the defendant James Edward Smith.

THE COURT: It will so

reflect.

BY MR. HOWARD:

Q. What happened after you met him?

A. We exchanged beeper numbers and

we kept in touch.

Q. And why did you exchange beeper

numbers? What was the purpose of that, do

you know?

A. Hopefully, to eventually

purchase drugs from Mr. Smith.

Q. Did you two start developing a

business relationship of some sort?

A. Yes.

Q. And did that include lunches?

A. Yes, that's correct.

Q. Okay.

What was -- what exactly were

APP-83

you trying to do for him, or what was he

going to do for you? What was your

understanding?

A. At the time, I was posing as

someone that was running money for another

organization, and I confronted him with

that.

Q. Can you tell the members of the

jury whether on August 22, 1985, you and

Mr. Smith ate lunch at the Red Lobster in

Prince George County, Maryland?

A. Yes, we did.

Q. And during that discussion, can

you tell the members of the jury whether

your discussion at some point turned to

narcotics trafficking?

A. Yes, it did.

Q. Were you carrying any special

devices with you at that point?

A. Yes, I was wearing a body wire.

Q. The body wire, did it actually

make a recording?

;

ArP-s4

A. Yes, it did. It recorded the

conversation that Mr. Smith and I were

having.

Q. And have you listened to that

recording recently?

A. Yes.

0. Was there a transcript made of

it?

Yes, there was.

Q. And have you reviewed that

transcript?

A. Yes, I have.

Q. At some point, did Mr. Smith

indicate to you his ability to get into

narcotics, different sorts of narcotics?

A. Yes.

Q. Can you describe for the jury

exactly what you two talked about?

A. Mr. Smith and I talked about the

fact the he used to be into drugs, and how

he learned a lesson at one point. He had

lived in an apartment, and the night

App-85

before he had moved his drugs out of that

place, the police had actually raided the

place the next day, and that is how he

learned his lesson that you don't leave

your drugs, I guess, basically where you

live.

Q. I would like to, if I could,

direct your attention -- do you have a

copy of the transcript with you?

A. Yes.

Q. -- to page 1l of that

transcript.

MR. DUNHAM: Your Honor, I

would like to object. If we could

approach side bar, I would like to explain

my objection.

THE COURT: All right.

(Side bar conference )

MR. DUNHAM: Your Honor, we

moved in advance of trial pursuant to Rule

16 for all the statements of defendant

Smith that the government was going to use

a

ApP- 8

in this case, and these -- this recording

was not furnished to us in advance of

trial.

MR. HOWARD: Yes, it was.

MR. DUNHAM: There was

material furnished to us, about three feet

worth of material furnished to us in

connection with our motion for a dismissal

of Count 1, but the material that was

furnished to us as statements of the

defendant that the government was going to

use at trial was a separate delivery, it

was not contained -- it was submitted to

uS at a completely different time.

It corresponds to a specific

discovery request for statements of the

defendant recorded, or otherwise, that you

intend to use at trial, and this material

was not among that material. It is very

difficult to respond to a statement that I

didn't know the government was going to

use. I don't even have a copy of it with

ArPe-37

me. ’

MR. HOWARD: Your Honor, I

took a separate stack of recordings that I

found in the District of Columbia. If I

remember, I stacked them together, and I

sent them to him. There were tons of

recordings involving James Edward Smith.

I gave them to him separately. I guess

what Mr. Dunham is asking me to do is

duplicate everything I have done and

resubmit them.

THE COURT: But at one point

in time, a transcript of this was

submitted to him for review?

MR. HOWARD: Yes, sir.

THE COURT: All right.

MR DUNHAM: I am not

disputing that, your Honor, but what I am

saying is it was not presented to me for -

THE COURT: Fine. Your

objection is overruled. Your position is

Afe-88

now a matter of record.

(End of side bar conference)

BY MR. HOWARD:

Q. In reviewing the transcript,

page 11, did Mr. Smith at some point talk

to you about his ability to, being out of

narcotics now as he represented, getting

back into it, you know, or anything else?

A. That's correct.

Q. Could you please tell the

members of the jury based on the page 11

what the conversation was about there,

please?

A. The conversation basically was

about that Mr. Smith did "boy" at one

point, which is heroin, and anyone that

knew that you could do one can do the

other, which was cocaine, which is "22. ”*

Q. At one point, did he tell you

about whether he had seen pure heroin and

his ability to work with a drug that is

100 percent pure?

ARP-84

A. He indicated to me that 100

percent heroin would take at least a 30 or

40 cut.

Q. When you say a 30 or 40 cut,

what does that mean?

A. Which means you can basically

mix it or dilute it to stretch it.

Q. Some 30 or 40 times; is that

correct?

A. Yes.

QO. If you could turn to page 44, at

some point did he talk to you about houses

and where he keeps his narcotics versus

other places?

A. Yes.

Q. And did you review a tape of

that portion of the conversation?

A. Yes, I did.

MR. HOWARD: Your Honor, the

government will not play the entire tape

because it is very lengthy. This is

approximately a two minute version, and I

Are -IO

would like to show Ms. Lyles Government's

Exhibit 73.

BY MR. HOWARD:

G. Is that an excerpted portion of

your conversation with the defendant James

Edward Smith on August 22, 1985?

A. Yes.

Q. I would like to also show you a

copy of, Government's Exhibit 74. Do you

recognize Exhibit 74?

A. Yes.

Q. Is that an accurate reflection

of the conversation as you remember it?

A. Yes, it is.

MR. HOWARD: Your Honor, with

the Court's permission, we will pass out

those transcripts.

MR. MCCLURE: I ask that

everybody turn their headsets back on,

which requires you to turn that switch to

the right.

(Whereupon, a tape was played)

ArP-¢ |

BY MR. HOWARD: 7

6. Ms. Lyles, during that tape

wherein -- on the first page where it

indicates Mr. Smith had gone to make a

telephone call, there was some two voices

apparently over radio. Can you tell the

members of the jury what that was?

A. What that was was there was a

receiver in one of the cars outside that

was monitoring, you know, this

transaction, and what was going on. What

they had done was actually taken a small

portable taperecorder and actually put

over the top of the receiver, so what you

heard was the background sound of other

cars in the area, police cars that were

monitoring this, transmitting over their

radio.

Q. You said, "this transaction."

There was no exchange?

No. No. It was nothing like

* was just a meeting.

Ape -FX

0. When you say police cars, you

were being surveyed; is that correct?

A. Oh, yes.

0). This conversation with Mr.

Smith, what did you understand it to mean?

A. I understood it to mean that Mr.

Smith had drugs in his place at one point,

and what had happened just before he moved

MR. DUNHAM: Your Honor, I

object. We have heard the conversation.

It means what it means. What it means to

her is irrelevant.

THE COURT: The objection is

sustained. Proceed.

ArP- 93

Q. And have you been in the

Richmond area that entire time?

A. Yes, all my life.

Q. Have you ever purchased

heroin from James Edward Smith?

A. Yes, I have.

Q. Can you tell the members of

the jury when you started purchasing

heroin from James Edward Smith?

A. About 1969 or 1970.

MR. DUNHAM: Your Honor,

may we have an objection to this on the

grounds that we have stated?

THE COURT: Yes. You have

a continuing objection.

MR. GETTINGS: I have a

continuing objection?

THE COURT: Yes.

MR. GETTINGS: Thank you.

BY MR. HOWARD:

Q: How long have you been

purchasing?

|

ApP-44

A. Since about 1969 or 1970.

Q. Can you tell the members of

the jury how you started with you cousin?

A. I didn't get started with

him, I got started with someone else.

Q. Who was that?

A. This guy name Ray James.

This was back in 1968.

A. How did come to start

buying drugs from your cousin Smitty?

A. Well, he gave me a better

price.

Q. Where was Smitty selling

drugs at that time?

A. Out of Washington.

Q. And when you needed to get

drugs from Smitty, how would you go about

it in that time period, 1969 through the

1970's?

A. 1969 to 1970? I used to go

up and get it myself then.

Q. And how much were you

ApPP-IS

purchasing from him?

A. At that time?

Q. Yes.

A. Probably an ounce.

Q. At a time?

A At a time.

Q. How much were you paying

for an ounce at that time?

MR. GETTINGS: Your Honor,

may I object on the grounds of relevance

because of the remoteness in time?

THE COURT: Yes. The

objection is overruled. Proceed.

BY MR. HOWARD:

Q. How much were you paying

for heroin at that point?

A. About $600.

Q. At some point, did you --

you said at that time you were going up to

get the drugs. Would you actually drive

from Richmond to D.C.?

A. I would go from Richmond to

AV? -%\

Q. How would you locate Mr.

James Edward Smith?

A. Call him on the phone.

Call him on the beeper.

Q. Did you know where he

lived?

A. He had more than one house.

I found him -- I would Stay up there until

I found him.

Q. Were you able to drive

right to where he worked, or where he

lived in order to buy your heroin at that

point?

A. No. Not to where he worked

Or lived at.

Q. At some point, did you have

to -- did your method of Operation change?

Did you start buying heroin from him in a

different manner? Were people bringing

heroin down to you at some point?

A. Oh, yes.

ACP -97

Q. When did that start?

A. That probably started in

the late 1970's or early 1980's.

Q. Can you describe for the

jury exactly how you were buying heroin

from Mr. Smith in the late 1970's or

1980's?

A. how was I buying it? Do

you mean how much?

Q. No. How would you get it?

A. Oh. I would call on his

beeper and he would bring it down or have

it sent down.

Q. Okay.

And who were the people who

brought it down?

A. Alexander Trent was one of

them.

Q. Alexander Trent?

A. Yes.

Q. Do you know him as Buddy?

A. Buddy, yes.

— 45

Q. Anybody else that brought

it down?

A. No. Nobody else that I

recall.

0. How would you actually get

it? How would you actually go up to tell

him that you needed heroin?

A. I would go up and call him

on the beeper and tell him what I want.

Q. Can you tell the members of

the jury, if you would, at that point, how

much heroin you were buying from him at a

time? In the late 1970's and 1980's.

A. I was buying maybe four

ounces at a time.

Q. And how much were you

paying for four ounces?

A. $5,000.

Q. How often were you buying

that quantity?

A. Maybe once every couple of

months, every two or three months.

Are - 49

Q. And what were you doing

with that heroin?

A. Selling it.

Q. And where were you selling?

A. Selling it to Titi.

0. Here in Richmond.

A. In Richmond.

Q. Did you have a normal

stream of customers?

A. Yes, I had a normal stream

of customers.

Q. Who else was buying heroin

from James Edward Smith at that point?

A. My cousin, Charles Smith.

My brother.

Q. What is your brother's

name?

A. Raymond Smith.

Q. Does Charles Smith go by

the name of Dickey?

A. Yes, by Dickey.

Q. And does Raymond Smith go

.

AfP-100

by the name of Buck?

A. Yes, Buck.

Q. How did you know Dickey was

buying heroin from Smith?

A. I think he told me.

Q. Did he indicate to you how

he was getting his heroin? Did you know?

How would he go about getting it?

A. He would go by the same way

I did, go up there and look for him. He

would go get it sometimes himself.

Q. And how about Buck? How

was Buck buying his heroin at that time?

A. Same way. He was also

buying it the same way.

Q. Do you know how much they

were buying from him?

A. Maybe Buck may not buy but

an ounce at time.

Q. Who else were you getting

heroin from?

A. Who else was I getting

APP -10 |

heroin from?

Q. Were you getting heroin

from anybody else?

A. Yes. I got some heroin out

of New York from a guy named -- I can't

recall his name, but I did get ici from a

guy Out of New York.

0. How many times was that?

A. About twice. The dude is

dead now.

Q. Anybody else that you have

purchased heroin from?

A. No.

2B Do you know where James

Edward Smith was purchasing his heroin

from at that period?

A. Do I Know where he was

purchasing?

Q. Yes.

A. No, I do not.

Q. Did you ever ask him?

A. No, I never asked him.

APP -10 >

:

2

*

Q.

A.

Did you ever try to learn?

I wanted to Know, but I

Know he wouldn't tell.

Q.

tell you?

A.

didn't want me to get it from nobody, from

his people.

Q.

people" ---

A.

Stuff from.

Q.

Leander Smith is?

Why do you know he wouldn't

Because he really probably

When you say, "his

The people who he gets

Do you know who Richard

Rx Richard Leander Smith?

Yes. He is my cousin.

Q. I would like to ask you if

he goes by a nickname?

A.

Q.

Peter.

Is he here?

(Indicating)

MR. HOWARD: Your Honor, if

Af? -ia3

the record would reflect an identification

of the defendant Richard Leander Smith.

THE COURT: It will so

reflect.

BY MR. HOWARD:

Q. Can you tell the jury how

often -- whether Richard Leander Smith was

buying drugs from Smitty?

A. Yes.

MR. BENJAMIN: Objection to

hearsay, your Honor.

THE COURT: Pardon?

MR. BENJAMIN: Objection to

hearsay.

THE COURT: The objection

is overruled. Proceed.

BY MR. HOWARD:

Q. Do you Know if he was

buying from James Edward Smith?

A. Yes. He said he was --

yes. I know he was getting it. He told

me he was getting it from him.

APP -104

’

Q. Could you tell us how much

he was getting from him?

A. Probably an ounce at a

time.

QO. At some point in 1988, did

you learn that James Edward Smith had been

arrested?

A. Yes, I did.

Q. Do you remember the date of

that?

A. No, I don't know the date.

I know it

APP-10S

A. Around the year 1972, somewhere

around there.

Q. And can you tell the members of

the jury how you got started?

A. By delivering drugs.

GO. And who were you delivering

drugs for, sir?

A. For James Smith.

QO. That is James Edward Smith.

A. Yes, James Edward Smith, yes.

MR. GETTINGS: Excuse me. Same

objection, your Honor.

THE COURT: All right.

BY MR. HOWARD:

Q. Do you know James Edward Smith?

A. Yes, I do.

Q. How do you know him?

A. We is cousins.

Q. Is he present today?

A. Yes, he is.

Q. Can you point him out, please?

A. Right on the end over there.

MR. HOWARD: Your Honor, if

the record would reflect an

identification.

THE COURT: The record will

SO reflect.

BY MR. HOWARD:

Q. He goes by the name of Smitty,

is that correct?

A. Yes, he does.

Ps And you go by the name Dickey?

A. Yes.

Q. You said you were delivering

drugs. Where would you get the drugs?

Where would you pick them up and in which

City?

A. Washington, D.c.

Q. Were you living up there at the

time?

| At the time, I was.

Q. And where would you deliver them

to?

A. To Richmond.

Q.

Do you know who in Richmond you

were delivering to?

A.

Q.

Q.

A.

him now.

Q.

To a couple of people.

Who were they?

There was some to Scank Smith.

That is James Reginald Smith?

James Reginald Smith, yes.

Do you Know James Reginald

Yes, I dc

How do you know him?

He is some kin to me, too.

Who else would you deliver to?

The other fellow, I can't recall

Okay.

How long were you delivering

drugs for James Edward Smith?

A.

times.

Q.

I just did it about a couple of

At some point, did you move up

in the business?

APP -108

. Yes, I did.

A

Q. And what did you start doing?

A. I started selling drugs myself.

Q. When you Say, "Drugs," was there

a particular type of drug you were

selling?

A. Heroin.

Q. And when did you start selling?

A. Oh, about 1974, something like

that.

Q. And how long did you sell?

A. On and off, up until the time I

got arrested.

Q. Okay.

From 1975 -- how long were you

selling at that point in the District of

Columbia?

A. No. I never sold drugs in the

District of Columbia.

Q. What were you doing in the

District of Columbia from 1972 to

approximately 1984?

APP -104

A. I wasn't up there that long. I '

was up there from 1972 to 1978.

Q. Were you running drugs at that

point, from 1972 to 1978?

A. No, I wasn't.

Q. In 1978, what happened in 1978?

A. I moved back down here to

Richmond.

Q. And when you moved back down to

Richmond, what happened then?

A. I started selling drugs.

Q. And who were you selling -- who

were you getting your drugs from?

A. From James Edward Smith.

Q. When you were down here in

Richmond, how would you get your drugs

from James Edward Smith?

A. I woule go up there and get

them.

Q. How did you find him? How did

you know to find him?

A. I would call him before I go,

APP -lio

and we would meet some place.

Q.

A.

Q.

drugs and

Richmond;

A.

Q.

Richmond?

A.

Q.

A.

Q.

get into?

A.

Q.

A.

Q.

Did you know where he lived?

Yes, I knew where he lived.

And you would pick up those

bring them back down to

is that correct?

Yes, sir.

How long

Up until

And then

I got in

And what

were you selling in

1984.

what happened in 1984?

trouble.

kind of trouble did you

For drugs.

Did you get arrested?

Yes, I did.

And did you serve any time?

I served

And what

about seven months.

charges were you on?

Combination.

Was that

in the City of

APP -11I

Richmond?

A. Yes, it was.

Q. After that, did you end up

moving to the District of Columbia?

A. Yes, I did.

QO. When was that, sir?

A. In 1984.

Q. Okay.

How long were you in the

District of Columbia?

A. I stayed up there from 1984,

1985 -- last part of 1984 until the middle

part of 1986.

Q. When you were in the District of

Columbia, did you continue in the

narcotics trade?

A. Yes, I did.

Q. Can you tell the members of the

jury what you were doing during that

period that you were in the District of

Columbia?

A. I was selling drugs.

APP - 11>

Q. Where were you getting your

drugs from?

A. From James Edward Smith.

Q. How much were you getting and

how often were you getting it?

A. I was getting about a half an

ounce at that time.

Q. About how often?

A. About once every other week.

Q. And what were you doing with

those drugs?

A. Bringing them back to Richmond

and selling them.

Q. Were you getting drugs from

anybody else?

A. No, I wasn't.

Q. Did you eventually leave the

District of Columbia?

A. Yes, I did.

Q. Can you tell the members of the

jury when that was?

A. About the last part of 1986.

APP -3

QO. And where did you come? 1

A. Back to Richmond.

Q. And what were you doing down

here?

A. Selling drugs.

O. And once again, drugs are

heroin?

A. Heroin.

0. When you were selling these

drugs down here in Richmond, was James

Edward Smith again your source?

A. I started getting them from

James Reginald Smith when I moved back to

Richmond.

Q. Okay.

Why did you stop going to James

Edward Smith?

A. He just cut me off.

Q. Do you know why he cut you off?

A. I believe because James Reginald

Smith wasn't doing too good to hin,

Q. When you said he wasn't dcing

AvP - 14

too good, what do you mean?

A. He wasn't selling that much

drugs to survive, I guess.

Q. Do you known anybody else who

was purchasing drugs from James Edward

Smith?

A. I know some peopie that was

getting drugs from him, but I never seen

him give it to them.

Q. Has anybody ever told --

MR. GETTINGS: Your Honor, we

will object to this. This is pure

hearsay.

THE COURT: The objection is

overruled. Proceed.

BY MR. HOWARD:

Q. Did anybody ever tell you that

they were buying drugs from James Edward

Smith?

A. Yes.

Q. Who would those people be?

A. James Reginald Smith.

AP?-u5

Q. Anybody else?

A. Raymond Smith.

Q. Is that Raymond Luther Smith?

A. Raymond Luther Smith, yes.

Q. What is his nickname?

A. We called him Buck.

Q. Anybody else?

A. No.

Q. How about Richard Leander Smith?

MR. BENJAMIN: I object to the

leading.

THE WITNESS: I don't know if

he got anything from him or not.

told me he got anything from him.

BY MR. HOWARD:

Q. That's fine.

He never

Sir, the drugs that you obtained

during this period, 1986 to the time of

your arrest, what were you doing with

them?

A. Selling them in Richmond.

0. Was somebody helping you sell

APP -11C

A. The persons who were dealing for

me.

Q. And the people that were dealing

for you, where were they selling?

A. Out in the Creighton Court

project.

Q. How many people did you have

selling out there?

A. I had one at a time selling for

me.

Q. How many different people sold

for you during this period?

A. About three or four different

people.

Q. I would like to ask you to what

extent you were the boss of anybody. Who

were the people that you controlled?

A. What do you mean by "control."

Q. Who were the people that you

gave drugs to?

A. Lawrence Brown was one of them.

Ar? -119

> Oo .e)

2)

of?

now.

Q.

Anybody else?

A girl named sheila.

Anyone else.

A boy name Tony Merritt.

Anybody else that you can think

That's all I can think of right

Did you consider yourself

managing or controlling James Reginald

Smith?

A.

Q.

A.

Q.

Managing James Reginald Smith?

Yes, sir.

No, I haven't. No.

Did you consider yourself

managing or controlling James Edward

Smith?

A.

Q.

A.

Q.

No, sir.

How about Richard Leander Smith?

No, sir.

Sir, was it your understanding

that in February, 1988, that James Edward

APP -i18

Smith was arrested?

A. Yes, I remember.

Q. And how did you learn that? —

A. Somebody called down here and

told all of us about it.

Q. And did you ever -- after he was

arrested, did you have an Opportunity to

visit with him?

A. While he was in prison, yes,

when he was locked up.

Q. And where did you go to visit

with

APP-119

BY MR. HOWARD:

Q. Can you tell the members of the

jury how you know James Edward Smith?

A. I met him some years back, 20

years back.

Q. ‘and how did you meet him?

A. Just on occasion, just out in

the street.

Q. The two of you had become fairly

close social friends?

A. That's correct.

Q. And does he enjoy status in your

family?

A. He is the godfather to my son.

Q. Mr. Alexander, let me digress.

You are also known by a nickname, is that

correct?

A. Yes, Buddy.

Q. Can you tell the members of the

jury whether at some point you were

working for Mr. James Edward Smith.

A. The latter part of 1979 and the

APP-130

caer eee ete

first part of 1980.

G. And what were you doing for him?

A. I was making deliveries for him.

Q. When you say "deliveries,"

deliveries of what, sir?

A. Heroin.

Q. Where were you making -- where

would you pick up the deliveries?

A. From Mr. Smith.

Q. And where would you take them to

in Richmond?

A. Scank.

QO. Is that James Reginald Smith?

A. James Reginald Smith.

Q. Anybody else?

A Yes, Peter.

Q. Is that Richard Leander Smith?

A. That is correct.

is Do you know if Richard Leander

Smith is here today?

A. Yes, he is.

Q. Could you please point him out?

APP -ja\

A. (Indicating )

MR. HOWARD: Your Honor, if

the record would reflect an identification

of defendant Richard Leander Smith.

THE COURT: It will so

reflect.

MR. DOHNAL: Your Honor,

excuse me. Could the witness please raise

his voice?

THE COURT: Yes, Mr.

Alexander, speak into the microphone, if

you will. Marshal, adjust it so that he

will be speaking into it directly.

BY MR. HOWARD:

Q. Approximately how many

deliveries did you make for James Edward

Smith to the Richmond area.

A. Once or twice a year.

Q. Was there anybody else that you

Gelivered to in Richmond besides the two

gentlemen that you have identified?

A. No.

Ape -12>

| Q. Did you deliver at all in the

District of Columbia area?

A. No.

Q. You are, in fact, a resident of

the State of Maryland?

A. That's correct.

Q. Did you make any deliveries in

the Maryland area?

A. No, I did not.

Q. What did you get in return for

making these deliveries?

A. The sum of a couple hundred

dollars, $2- or $300.

Q. Did you ever buy heroin from Mr.

Smith for your own personal use?

A. No, I did not.

Q. Who did you buy your heroin

from?

A. Off the street.

Q. Do you know any of the names of

people you bought from off the street?

a. No, I do not.

Mewes wwi S ”

APP -|23

Q. You do know the name Gay

Caviness?

A. Yes, I do know Gay.

Q. Did you ever buy heroin from

her?

A. Yes, I have.

Q. Do you know what her

relationship is to James Edward Smith?

A. Friend, as far as I know.

Q. Do you know where she got her

heroin?

A. No, I can't say where she got

her heroin.

Q. Do you know anybody else besides

Mr. Peter Smith and Mr. James Reginald

Smith who purchased heroin from -- I mean,

besides Peter Smith and Scank Smith that

purchased heroin from James Edward Smith?

A. No, I do not.

Q. Do you know who else worked for

him, ran for him, took orders from him?

A. No, I do not.

Are-j2u

A ay hs SIR Se Nh te Seah pele breeds

Q. At some point -- how long did

you deliver drugs for him?

A. Once or twice a year. Like I

said, the latter part of 1979, first part

of 1980.

Q. Did you stop at that point?

A. Yes.

Q. After 1980, did you deliver any

A. Yes. I guess about 1985, or so.

Q. Were you doing anything else

besides delivering drugs?

A. No, that was all.

Q. Do you remember ever cutting

drugs with Smith, helping him package it?

A. Yes, when I first met him.

Q And that was 1979?

A. No, that was 20 years ago.

Q. That was 20 years ago?

A. Yes.

Q. Well, 20 years ago when you

first met him, what were you doing other

A PP-|aS

than courier?

A. I was cutting with him.

Q. When you say “cutting,” what

were you doing?

A. Cutting the heroin.

Q. When you say "cutting," what

does that mean?

A. Mixing it up, putting mixtures.

Q. Were you familiar with that

process, or did you come familiar with it?

A. I became familiar with it.

Q. How many times did you do that

with him?

A. A couple of times. I can't

remember counting.

Q. A couple of times 20 years ago

and that was the last time you did it?

A. Yes.

Q. Did you, at some point, learn

that Mr. James Edward Smith became -- was

arrested?

Q. And do you remember the day

being February 6, 1988?

A. Yes. Yes, I do.

Q. After you learned that he was

arrested, did -- were you ever contacted

by

APP -127

-

MR. DUNHAM: Your Honor, if Mr.

Howard wants a stipulation that Mr. Smith

was a drug dealer, that he was dealing

drugs, and that he was convicted in the

District of Columbia in 1988, he has got

> ae I mean, that is not what the issue is

here.

The issue is he wants to try the

District of Columbia case in Technicolor,

and it comes so late and so close to

trial. He talks about the Blackwell case

that the prosecution decided to use the

evidence from the other drug case less

than one business day before the trial was

Supposed to begin.

APP-| a8

AeP-1519 v4