485 F.2d 490: United States of America, Appellee, v. Elvin Lee Bynum et al., Appellants
United States Court of Appeals, Second Circuit. - 485 F.2d 490
On Submission to the Court July 2, 1973.Decided Sept. 24, 1973
W. Cullen MacDonald, Asst. U.S. Atty., New York City (Paul J. Curran, U.S. Atty., Southern District of New York, John W. Nields, Jr., Asst. U.S. Atty., of counsel), for appellee.
Henry J. Boitel, New York City, for appellant Bynum.
Patrick M. Wall, New York City, for appellants Cordovano, Wright, Small, Mitchell, Garnett, Dyson, Birnbaum, Feroldi and Nedd.
H. Elliot Wales, New York City (Michael P. Di Renzo, New York City, on the brief), for appellants Coniglio and Tuzzolino.
Jerome Lewis, New York City, for appellant Mele.
Frank A. Lopez, Brooklyn, N. Y., for appellant Altamura.
Before KAUFMAN, Chief Judge, and SMITH and MULLIGAN, Circuit Judges.
MULLIGAN, Circuit Judge:
On a previous appeal to this court we remanded this case to the trial judge, Hon. Milton Pollack, United States District Judge, Southern District of New York, for a hearing to determine whether certain wiretap evidence used at trial had been legally obtained. United States v. Bynum, 475 F.2d 832 (2d Cir. 1973). After the hearing, Judge Pollack issued his findings of fact and conclusions of law, upholding the validity of the wiretaps. 360 F.Supp. 400 (S.D.N. Y.1973). We now affirm the convictions in all respects.
On October 13, 1971 an indictment was filed, charging appellants Bynum, Cordovano, Wright, Small, Mitchell, Garnett, Dyson, Coniglio, Mele, Feroldi, Altamura, Birnbaum, Tuzzolino and Nedd with conspiracy to deal unlawfully in narcotic drugs in violation of 21 U.S.C. Secs. 173, 174 (repealed 1970) and 26 U.S. C. Secs. 4705(a), 7237(b) (repealed 1970). All appellants were found guilty on this charge. The second count of the indictment separately charged appellant Nedd with carrying a firearm during this conspiracy in violation of 18 U.S.C. Sec. 924. Nedd was found guilty on this charge.1
The primary purpose of the conspiracy, which was alleged to exist chiefly in New York City, from January 1, 1970 until April 30, 1971, was to obtain, process and distribute large amounts of narcotic drugs which had been unlawfully imported into the United States. The furtherance of the common scheme involved one unsuccessful robbery, together with the near fatal shooting of the victim, another aborted robbery and an elaborate plan to murder a corrupt New York City patrolman, who was thought to be cooperating with the authorities. The Government's case rested principally upon the evidence of George Stewart, a veteran and former college student, whose record was respectable until he invested in a Manhattan restaurant which eventually stripped him of his resources and indebted him to appellant Cordovano, a customer. At Cordovano's suggestion Stewart embarked on a career of selling cocaine in order to repay his debts. Cordovano and Bynum were the key figures in the drug conspiracy here revealed. Bynum was the banker for the group, supplying large sums of money for the purchase of heroin and cocaine. He and Cordovano supplied the drugs and supervised their mixing, cutting, packaging and distribution through Harlem. The distributors there were Wright, Small, Mitchell, Garnett and Dyson. The suppliers of the ring were Altamura, Mele, Coniglio, Tuzzolino, Birnbaum and Feroldi who normally operated through Cordovano.
From May 1970 on, Stewart sold heroin and cocaine for Cordovano on a consignment basis, sharing the profits. Stewart was eventually introduced to Bynum, Coniglio and Mele by Cordovano, and Stewart's role in the group became increasingly important. In September 1970, Cordovano purchased 5 kilos of heroin from Coniglio and Mele for $72,500 in cash which had been supplied by Bynum. Stewart picked up the heroin. Some of the drugs were delivered to Bynum through Cordovano and the remainder were stored in Stewart's girlfriend's apartment. At Cordovano's instruction, Stewart delivered 2 kilos on October 29th to a customer, Shaw, who paid him $38,000. Shaw in turn unwittingly resold to an undercover agent. Stewart was arrested at this sale and was found to possess 1/8 of a kilo of heroin as well as a gun. Bynum supplied the collateral for Stewart's bail bond.2 In December 1970, Stewart was rearrested since a prior sale had also resulted in another resale to an undercover agent. It was at this juncture that Stewart was approached by the Government and agreed to become an informant.
On January 10, 1971, Stewart, at Cordovano's request, proceeded to Bynum's residence with a device for sealing plastic bags. Wright, who was expected to arrive with 2 kilos of heroin to be cut, appeared without the drugs since he was apprehensive of police detection. Bynum, Wright and Garnett left Stewart for another location. Later in the evening they returned to Bynum's apartment complaining of nausea resulting from the inhalation of heroin dust during the cutting operation. Cordovano subsequently brought to Bynum's apartment 5 kilos of cocaine which he stated he had purchased from Altamura. Bynum cut 1/2 kilo of this cocaine with an adulterant. Stewart took a sample of this and the balance was given to Wright. The 4 1/2 kilos of uncut cocaine were stored at the apartment of Stewart's girlfriend and at Cordovano's mother's apartment. Later in January, Stewart met Cordovano, Altamura, Coniglio and Mele at a wake. It was at this point that their conversations indicated that there was a serious shortage of drugs for the local market. Altamura stated that he had a source but the promised sale eventually fell through when his seller demanded $36,000 for 2 kilos of heroin on February 19, 1971.
At this point, desperate to obtain heroin, the core group adopted less orthodox but predictable means of assuring their continuing business. Cordovano and Bynum discussed with Stewart the possibility of robbing one Marty Carlin, a drug dealer who they believed had large quantities of heroin and cash stored in his safe. The plan was that Nedd and one Michael Libbers (an original co-defendant whose motion to dismiss was granted below) would take Carlin to an apartment selected by Stewart where Carlin would be "persuaded" to reveal his safe's combination. Eventually, in March 1971, Bynum, Nedd, Cordovano and Stewart made the final plan to rob Carlin. Nedd located Carlin at a west-side hotel, but Carlin resisted and was shot by Nedd. Although he was seriously wounded, Carlin was able to identify Nedd as his assailant. When Nedd was subsequently arrested in New Jersey, he had jewelry belonging to Carlin as well as identification papers belonging to another victim of the attempted robbery.
In the meantime, other efforts were made to secure heroin. On February 25, 1971, Stewart was given $65,000 in cash at Bynum's direction to pay to Altamura for heroin to be turned over for cutting and sale to Garnett and Dyson. Altamura had only cocaine and no heroin. It was then decided to purchase 2 kilos of heroin from Birnbaum whose source was Feroldi. After giving a kilo of plaster in order to cautiously test the delivery plans, Feroldi finally delivered a kilo of heroin on March 13, 1971 to Stewart and Cordovano. Cordovano brought it to Bynum at Dyson's home for cutting. It proved to be impure in quality and somewhat less in quantity than represented.
On March 29, 1971, after meetings with Cordovano, Altamura delivered 2 kilos of heroin to Cordovano and Stewart who brought it to Bynum at Dyson's house. Bynum, Dyson, Garnett, Mitchell, Wright, Cordovano and Stewart, all participated in the cutting and packaging of the drug.
Early in April, 1971, Cordovano and Stewart held separate meetings with Tuzzolino and with Coniglio and Mele for a 5 kilo purchase of heroin. A 2 kilo purchase of heroin was made from Tuzzolino using Feroldi's car to make delivery to Stewart who in turn delivered it to Cordovano. After a variety of furtive maneuvering, this was followed by the usual cutting and repackaging operation at Dyson's residence with Bynum, Cordovano, Stewart, Garnett, Dyson and Small participating.
Cordovano and Bynum also proceeded to plan with Moody (a prosecution witness) to steal heroin and money from two drug dealers in Washington, D. C. Feroldi was an added starter, participating in the planning in mid-April, 1971. The theft was never consummated despite a trip to Washington by Feroldi and Moody who were telephoning Cordovano for advice. They left behind them in Washington police uniforms, chloroform, tape, a sledge hammer and a trunk with a .38 caliber pistol in it. Bynum paid some of their expenses for this aborted scheme.
On April 29, 1971, the partnership business came to an abrupt termination. Bynum and Garnett advised Stewart that an informant had betrayed them. He was identified as corrupt New York City patrolman Wollack who was believed to be talking to federal authorities. Cordovano and Bynum planned that Garnett was to have Wollack visit her home on a pretext. Cordovano and Stewart were to follow him from Garnett's home to the meat market operated by Bynum and Cordovano where he was to be knocked out, searched for bugging equipment, shot to death and placed in a plastic bag. Stewart, who at this point was fully accepted as a member of the core group, even purchased surgical gloves at Bynum's suggestion that the gloves would foil any paraffin test indicating that the apprehended person had recently fired a gun. Stewart fortunately alerted the authorities. Cordovano and Stewart were apprehended en route to the scene, and each was found to possess a loaded hand gun. Two other loaded guns were found in the car.
While the furtive and devious movements of drug conspiracies such as this are unfortunately routinely encountered in the federal courts of this circuit, the detailed facts which amply document and support the Government's case here, are uniquely provided by the informant witness Stewart, whose regular reports to Government agents enabled them to independently make surveillance and confirm the conspiracy and the overt acts charged in the indictment. Thus Stewart's "sample" of cut cocaine received from Bynum on Jaunary 10, 1971 was turned over to agents on January 19, 1971. The $65,000 in cash delivered to Stewart on February 25, 1971 at Bynum's request was later photographed by agents. Birnbaum's attempted delivery on March 2, 1971 was subjected to surveillance by agents. The Altamura sale on March 29, 1971 and the subsequent cutting operation were observed by agents. The April 9, 1971 Tuzzolino sale and cutting operation were also under surveillance, with Stewart managing to discard packages which were recovered by agents who were able to determine that pure heroin traces still adhered to the original containers.
Defendants Birnbaum, Altamura, Tuzzolino, Coniglio, Mele, Wright, Small, Mitchell, Garnett and Dyson seek reversal of their convictions on the ground that the Government did not prove one conspiracy but rather multiple individual conspiracies. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). The Government established beyond a reasonable doubt a large scale drug sale conspiracy in this case between January 1970 and April 1971. The pattern is now familiar. Raw drugs in large quantities have to be imported and supplied. In this case the core operators Bynum and Cordovano, respectively, supplied the capital and the contact with the suppliers who provided the raw material. The raw drugs then had to be adulterated or cut, packaged and then resold to purchasers who eventually made them available to the victims. In more normal business ventures this would be described as a vertically integrated loose-knit combination. The point of course is that each level of the operation depends upon the existence of the other, and the mutual interdependence of each is fully understood and appreciated by the other. This knowledge on the part of Bynum and Cordovano operating in the middle layer is obvious. The supplier defendants Birnbaum, Altamura, Feroldi, Tuzzolino, Coniglio and Mele could not reasonably suppose that the large amounts of raw cocaine and heroin received by Bynum and Cordovano were not to be resold at the tremendous profits this business produces. The defendants Wright, Small, Mitchell, Garnett and Dyson who participated in the cutting, repackaging and distribution of the drugs understood fully the roles of Bynum and Cordovano and that suppliers of the raw drugs had to be involved. This is the usual chain conspiracy encountered in drug cases. "Thus the conspirators, at one end of the chain knew that the unlawful business would not, and could not, stop with their buyers; and those at the other end knew that it had not begun with their sellers. That being true, a jury might have found that all the accused were embarked upon a venture, in all parts of which each was a participant, and an abettor in the sense that the success of that part with which he was immediately concerned, was dependent upon the success of the whole." United States v. Tramaglino, 197 F.2d 928, 930 (2d Cir.), cert. denied, 344 U.S. 864, 73 S.Ct. 105, 97 L.Ed. 670 (1952), quoting United States v. Bruno, 105 F.2d 921, 922 (2d Cir.), rev'd on other grounds, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257 (1939). See also Blumenthal v. United States, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154 (1947); United States v. Vega, 458 F.2d 1234 (2d Cir. 1972); United States v. Agueci, 310 F.2d 817 (2d Cir. 1962), cert. denied, 372 U.S. 959, 83 S.Ct. 1013, 10 L. Ed.2d 11 (1963). The fact that not all of the defendants may have known and worked directly with all of the others is not significant since it is clearly established that each knew from the scope of the operation that others were involved in the performance of functions vital to the success of the business. United States v. Calabro, 467 F.2d 973, 982-983 (2d Cir. 1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1358, 35 L.Ed.2d 587 (1973).
The on-going nature of the partnership here and the roles assigned to the cast were established clearly in the record. The period of the conspiracy here, moreover, is comparatively short (16 months compared to 9 years in United States v. Borelli, 336 F.2d 376 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965)), so that the participation of the defendants in the Bynum-Cordovano Harlem operation is more easily established.
With respect to the individual defendants who claim discrete conspiracies, we find ample proof of participation in the single conspiracy charged within the principles enunciated in the prior cases. Wright, Small, Garnett and Dyson were closely allied with Bynum and Cordovano in the cutting and packaging operation. Garnett and Dyson were girlfriends of Bynum, and Wright had worked for him for many years. They were obviously trusted associates. Wright's presence at cutting operations on the evening of January 10, 1971 was established. Moreover, Wright warned of police activity which resulted in a changing of plans as to the place of cutting. He was present later that evening at Garnett's home where Cordovano had produced 5 kilos of heroin and received 1/2 kilo from Bynum. On March 29 he was also present at the cutting operation and departed with one of the three bundles of adulterated heroin. Small, a friend and part-time employee, and Mitchell, also a friend of Bynum, were present at the March 29 cutting party and were assigned the two other bundles. Small was also present at the cutting operation on April 9, 1971. It is clear that the relationship here among the cutters and distributors was continuing, intimate and pursuant to common scheme or plan.
The connections of the suppliers with the operation were broad and extensive. Coniglio and Mele made the $72,500 sale to Cordovano in September, 1970. In January, 1971, they advised Stewart of the lack of heroin on the market and offered to sell 5 kilos to Cordovano in April, 1971, for $100,000. Their continuing willingness to participate is patent. Altamura supplied Cordovano with the 5 kilos of cocaine cut on January 11, 1971; he drove Cordovano to meet Bynum in February, 1971; he attempted to purchase 10 kilos of heroin at the same time; he spoke to Cordovano and Stewart numerous times in February and March, and finally delivered 2 kilos of heroin on March 29, 1971. He was entrusted with $49,000 in cash to make a purchase for the partnership. Birnbaum, who initially introduced a buyer to Cordovano and Stewart in the summer of 1970, appeared as a seller in February, 1971, offering Cordovano and Bynum 5 kilos of heroin for $90,000. He and his source, Feroldi, continued to promise delivery and on March 13 a kilo sale of heroin resulted after Feroldi had been given $15,000 and a gun by Cordovano. Feroldi promised to continue to search for a source. On March 2, 1971, Birnbaum had been entrusted with $38,000 to make a heroin purchase which was never consummated and the money was returned. Tuzzolino appears in April, 1971, as a prospective supplier of 5 kilos of heroin for $105,000 and was entrusted with $15,000 in cash. After several meetings, a 2 kilo sale was transacted.
While some of the suppliers may not have known the identity of other sellers, the inference was justified that each knew his supplies were only a small part of the raw drugs which the extensive Bynum-Cordovano operation processed and sold. See Blumenthal v. United States, supra, 332 U.S. at 554-555 n.14, 68 S.Ct. 248. In view of the large amounts of hard drugs involved and the large amounts of money advanced to suppliers, there is no question but that the Bynum-Cordovano partnership was conducting a regular business on a steady basis with numerous suppliers who intentionally and knowingly were either looking to or maintaining a close relationship with a solvent, on-going apparatus.
In view of this evidence of one conspiracy, the refusal to grant severances was proper. Some of the appellants, notably Mele and Coniglio, argue that there was prejudice in failing to sever since the court below charged: "if you find that the Government has failed to prove the existence of only one conspiracy you must find the defendants not guilty." This is urged to be a prejudicial "all or nothing charge" condemned by this court in United States v. Borelli, supra, and in United States v. Kelly, 349 F.2d 720 (2d Cir. 1965), cert. denied, 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544 (1966). The argument in essence is that no jury would acquit all of the defendants since Bynum and Cordovano were clearly active in all of the ventures undertaken by the group. Hence the jury would convict all rather than let the principal malefactors go free. We cannot accept the argument since it fails to consider other portions of the trial court's charge which made it perfectly clear to the jury that if each of the defendants was not a knowing participant in the single conspiracy he must be acquitted. In short, it was not an "all or nothing charge." The court carefully charged:
In determining whether any defendant was a party, each is entitled to individual consideration of the proof respecting him or her, including any evidence of his or her knowledge or lack of knowledge, his or her status as a partner, manager or supervisor, his or her participation in key conversations, his or her participation in the plan, scheme or agreements alleged.
The disposition of the charges against other defendants as well as a list of those who were named as co-conspirators but not as co-defendants, are set out in our prior opinion. United States v. Bynum, 475 F.2d 832, 834 n.2 (2d Cir. 1973)
Bynum testified that he posted collateral for Small's, Wright's and Mitchell's bail bonds after their arrests on the present charges. Defendant Garnett pledged her house as collateral for Cordovano's bond
See C. McCormick, Evidence Sec. 190, at 451 & n. 48 (2d ed. E. Cleary 1972)
Bynum learned of the first proposed wiretap before Judge Travia signed the authorization. He had the second phone installed and the agents learned of this through their tap on the first phone
We note that the federal courts are divided on this question. See United States v. Roberts, 477 F.2d 57 (7th Cir. 1973); United States v. Giordano, 469 F.2d 522 (4th Cir. 1972), cert. granted, 411 U.S. 905, 93 S.Ct. 1530, 36 L.Ed.2d 194 (1973)
The court below held, and the Government argues here, that the statutory provision requiring that interceptions of communications be minimized (18 U.S.C. Sec. 2518(5)) was intended to limit only the hearing and not the recordation of conversations. Authority for this view is said to be found in the words of the statute itself. The statute defines "intercept" as "the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device." 18 U.S.C. Sec. 2510(4). The statute also draws a distinction between interception and recordation in Sec. 2518(8) (a), which requires that the "contents of any . . . communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device." Any recording made under this subsection is to be "done in such a way as will protect the recording from editing or other alterations." See United States v. Huss, 482 F.2d 38 (2d Cir. 1973)
Appellants respond that the statute was never intended to permit recordation of all conversations. Such a construction would, in their view, allow the Government or anyone else to legally create a tape library of the conversations of any citizen. If such reasoning were applied to the situation of a warrant covering tangible items, seizure of the contents of a whole house would be permissible, in their view, on the ground that to do so would prevent any destruction or disappearance of exculpatory evidence. Appellants contend that this question has been resolved in their favor by earlier cases (United States v. King, 335 F.Supp. 523 (S.D. Cal.1971), rev'd on other grounds, 478 F.2d 494 (9th Cir. 1973); United States v. Leta, 332 F.Supp. 1357, 1360 n.4 (M.D.Pa.1971)).