United States of America, Appellee, v. Elvin Lee Bynum et al., Appellants, 485 F.2d 490 (2d Cir. 1973)

* * *

If you decide that the charged conspiracy existed between any of the defendants, you must then decide as to each defendant individually whether he or she joined the conspiracy with knowledge of either one or both of its purposes as alleged in the indictment.

Judge Pollack meticulously charged the elements and characteristics of the single conspiracy and summarized the Government's evidence as to each defendant and the evidence, if any, of each defendant who presented testimony. This alone takes up eighteen pages of the record. The contention therefore that the charge was prejudicial and in violation of Borelli and Kelly, is unsupportable.

B. The Crimes of Violence

The principal thrust of appellants' argument that multiple conspiracies existed rather than the single conspiracy charged in the indictment, lies not in the drug supply process and sales activity of the defendants but rather in the evidence presented to the jury of the attempted robbery and shooting of Martin Carlin, the planned robbery of the drug dealers in Washington, and the plan to murder the New York City policeman, Wollack. Those defendants, primarily Bynum and Cordovano, who participated in the crimes, claim that they were prejudiced by the evidence of "other crimes" and those conspirators who were not directly implicated claim prejudice by the "spill over" effect on the jury which would prejudice their right to a fair trial. Kotteakos v. United States, supra.

The actual participants in the crimes rely on the line of cases presented by United States v. Byrd, 352 F.2d 570 (2d Cir. 1965), and United States v. Deaton, 381 F.2d 114 (2d Cir. 1967), which hold that evidence of other crimes is admissible except when offered solely to prove criminal character. The other defendants maintain they were not responsible for the violent acts since these crimes were not within the fair import of the conspiracy as they understood it (United States v. Peoni, 100 F.2d 401, 403 (2d Cir. 1938)), and thus the trial court erred in not granting them a severance.

In this case the planned robberies and murder were not "other crimes" at all; they were part and parcel of the single drug conspiracy charged in the indictment. E. g., United States v. Leftwich, 461 F.2d 586, 589 (3d Cir. 1972); United States v. Persico, 425 F.2d 1375, 1384 (2d Cir.), cert. denied, 400 U.S. 869, 91 S. Ct. 102, 27 L. Ed. 2d 108 (1970); Ignacio v. Territory of Guam, 413 F.2d 513, 519-520 (9th Cir. 1969), cert. denied, 397 U.S. 943, 90 S. Ct. 959, 25 L. Ed. 2d 124 (1970); Rodriguez v. United States, 284 F.2d 863, 867 (5th Cir. 1960), cert. denied, 368 U.S. 1001, 82 S. Ct. 632, 7 L. Ed. 2d 540 (1962). Moreover, as to the other defendants, these were not extramural frolics of wanton criminals introduced by the Government to establish to the jury that wicked men were in the dock. The Bynum-Cordovano group which was conducting an enormously profitable business, was faced early in 1971 with a shortage of heroin and cocaine. They discussed this with their suppliers and were desperately seeking new sources of hard drugs. The planned theft from Carlin, a drug dealer, was to supply heroin for the purpose of the conspiracy. His shooting was in furtherance of that purpose. The aborted Washington burglary was conceived by Cordovano and Bynum for the purpose of obtaining heroin and money. The planned killing of Wollack was to silence a suspected informant and thus to preserve the viability of the conspiracy.3 The suppliers here were acutely aware of the shortage; that the "core group" would resort to violence to secure hard drugs or to protect the venture, could hardly be unanticipated or unexpected. See Rodriguez v. United States, supra.

We fail in any event to appreciate the defendants' argument that evidence of these crimes was so prejudicial as to arouse the "irrational passions of the jury" (United States v. Kaufman, 453 F.2d 306, 311 (2d Cir. 1971)), or to create in the jury "overmastering hostility." C. McCormick, Evidence Sec. 190, at 453 (2d ed. E. Cleary 1972). Whether or not a jury will be so inflamed by allegedly extraneous criminal activity will of course depend upon what crime they have been accused of committing. United States v. Williams, 470 F.2d 915, 918 (2d Cir. 1972). The appellants here were engaged for profit in a major hard drugs venture in Harlem which not only dehumanized its ultimate customers but unquestionably spawned myriad crimes in a community already misery-ridden. No jury in New York can be unaware of the dimensions and consequences of the major operation which was graphically portrayed here. The revulsion of the average citizen to this traffic need not be documented. How evidence of the concomitant robbery, assault or even planned murder here could be so exacerbating as to render the jury's judgment irrational, we are unable to understand. We are not dealing with minor league addicted street pushers but with well-financed brazen professionals engaged in a large-scale criminal undertaking in which corruption and violence are endemic. The euphemistic description of these activities as transactions in "contraband" does not disguise the true nature of the wicked alliance here established. Moreover, the trial judge's careful marshaling of the evidence, as we have pointed out, made it clear that the participation of each defendant must be determined by his own actions and not the acts of the others. The jury therefore was capable of determining which defendants had participated in the violence.

IV. The Wire Taps

The Government was authorized by District Judge Anthony J. Travia, Eastern District of New York, on January 29, 1971 to overhear and electronically record telephone conversations at the home of the defendant Garnett, Bynum's girlfriend; her home was the site of subsequent meetings and cutting operations of the defendants. The order was based on an affidavit stating that four reliable informants had indicated that Bynum was engaged in a large drug distribution business and used Garnett's phone in this business. The affidavit further recited that Bynum had corrupted state and federal officers, that he had a previous narcotics conviction, and that he was reputed to have caused the killing of some 18 people. The order authorized the wiretap for 20 days and contained the statutory directive (18 U.S.C. § 2518(5)) that the interception of communications be conducted in such a way as to minimize the interception of communications not otherwise subject to interception. On February 12, 1971, a second wiretap was authorized on another phone in the Garnett residence for 20 days duration.4 The tap on the first phone was extended by Judge Travia on February 18, 1971 until March 3, 1971 so that it expired on the same day as the second tap. For five weeks these phones were monitored and conversations were recorded, eight of which were introduced at the trial and played for the jury. The issuance of the authorization for the wiretap and the recordation of the conversations of some of the defendants has given rise to a number of arguments on appeal.

A. Authorization and Necessity

Appellants claim that the application for the wiretap order was improperly authorized since the application was not approved by the Attorney General or a specially designated Assistant Attorney General as required by statute (18 U.S.C. § 2516(1)) but rather by an Executive Assistant to the then Attorney General. The precise question has been before this court on several occasions and has been decided adversely to appellants' position, and we are now bound by these precedents. United States v. Becker, 461 F.2d 230, 235-236 (2d Cir. 1972); United States v. Pisacano, 459 F.2d 259 (2d Cir. 1972).5

It is further urged that the applications for the wiretaps were defective in failing to establish that resort to this means of surveillance was necessary as required by 18 U.S.C. § 2518(1) (c). A reading of the detailed affidavits which were submitted in support of the wiretap and which form part of this record, indicating reason to believe that Bynum had engaged in the corruption of officials and violence against informants, and that he was a long time narcotics violator, amply supports the issuance of the orders here made.

B. Minimization

The remand for an evidentiary hearing here was prompted by the argument on the initial appeal in this case that there was a failure by the Government to minimize the interception of innocent conversation on the two telephones tapped at 855 Linden Boulevard, in violation of 18 U.S.C. § 2518(5) which mandates the inclusion of a "minimization" provision in the order authorizing the electronic surveillance. District Judge Pollack held such evidentiary hearings on April 9, May 10, 11 and 14, 1973. On June 6, 1973 he filed a 64 page opinion containing findings of fact and conclusions of law, in which he made an exhaustive analysis of the calls which were intercepted, the identity of the conversants, the length of the calls, the actual conduct of the surveillance by the Assistant United States Attorney and the inspectors of the Bureau of Narcotics and Dangerous Drugs (BNDD) and the continuing supervision of Judge Travia, to whom the Government was reporting regularly pursuant to his order. Judge Travia also appeared as a witness in the hearing before Judge Pollack. In view of the extensive opinion below, we see no point in repeating the minutiae necessarily developed in the record analyzing the surveillance.

We commence with the observation that the mere fact that every conversation is monitored does not necessarily render the surveillance violative of the minimization requirement of the statute. See United States v. Cox, 462 F.2d 1293, 1301 (8th Cir. 1972); United States v. Leta, 332 F. Supp. 1357, 1360 n.4 (M.D. Pa. 1971). It is also obvious that no electronic surveillance can be so conducted that innocent conversation can be totally eliminated. Before a determination of innocence can be made there must be some degree of eavesdropping. The record here discloses that out of 2058 completed phone calls, 1277 of them (more than half) were completed in less than 2 minutes. Since, in a case of such wide-ranging criminal activity as this, it would be too brief a period for an eavesdropper even with experience to identify the caller and characterize the conversation as merely social or possibly tainted, we eliminate these calls from consideration. See United States v. Sisca, 361 F. Supp. 735, at 744 (S.D. N.Y.1973); United States v. Focarile, 340 F. Supp. 1033, 1050 (D. Md.), aff'd sub nom., 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); United States v. La Gorga, 336 F. Supp. 190, 196 (W.D. Pa. 1971). Our concern is with the 781 conversations which lasted 2 or more minutes.

In determining whether or not these calls were susceptible to minimization, there is patently no mechanical, hard and fast formula applicable. We look first to determine whether or not the Government could anticipate or, during the course of the surveillance, detect some pattern of innocent conversation which could be eliminated from scrutiny. The facts and events detailed earlier in this opinion supported the Government's expectation at the time of the initiation of the taps, that Bynum was operating a massive drug business headquartered at 855 Linden Boulevard. We cannot accept appellants' suggestion that this was just another large drug operation. The conspiracy here unveiled was not limited to drug peddling, but included larceny, robbery and murder among its ingredients. The taps were further authorized because Bynum was suspected of corrupting local police as well as federal agents to assure the continuing success of the venture. Bynum, as we have indicated, was no pedestrian punk or common hoodlum. He had acted as an informant for the Government in previous drug cases and was well versed in narcotic investigative techniques. His contacts included not only law enforcement agents but also corrupt attorneys who were suspected of being implicated in the drug operation. He had arrived in New York in modest circumstances at best and within several years, according to his own testimony, had attained a net worth of more than a million dollars and a taxable income in 1971 of $120,000 allegedly on income from "legitimate" businesses, including a clothing store, record shop and the "Kosher" wholesale meat market which he operated with Cordovano (and which, had it not been for the intervention of the authorities, would have been the situs for the murder of Patrolman Wollack).

Even more grotesque is the fact that Bynum testified that through a contact in the Telephone Company, whom he named, he was made aware almost immediately of the existence of both of the taps made on the phones at 855 Linden Boulevard. It is incongruous therefore to advert to an expectation of privacy (Katz v. United States, 389 U.S. 347, 351-353, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)) under circumstances such as these. See United States v. Pui Kan Lam, 483 F.2d 1202, 1205-1206 (2d Cir. 1973). Although Bynum did reside at this address with one of his mistresses (Garnett) and his child, it can hardly be characterized as such a normal domestic menage, that the Government could have anticipated some pattern of orthodox social calls. On the contrary, the reasonable anticipation on the part of the Government, as the court below recognized, was that surreptitious, illegal activity would be conducted on the premises and over the telephone. Furthermore, while natural caution dictates that drug related conversations will be disguised and cryptic, in view of Bynum's awareness of the surveillance, the efforts to obfuscate and confuse the eavesdropper would have been more pronounced than usual.

In view of all of these factors we cannot conceive that either the Assistant United States Attorney or Judge Travia could formulate any detailed screening instructions which could effectively minimize licit telephone interception. The record below establishes that on January 29, 1971, the Assistant United States Attorney and two inspectors of the BNDD submitted to Judge Travia the application for surveillance and personnally discussed the breadth of the conspiracy and the difficulties embraced in the surveillance. The record makes it apparent that all were fully aware of the statutory requirements, including the minimization provision and the need to screen out innocent calls. Since it was known that lawyers were suspected of involvement, monitoring agents were specifically instructed not to intercept privileged conversations. The calls were in fact received and monitored but no serious argument is made here that privileged calls were intercepted. For the first time in New York apparently, in view of the charge of corruption, out-of-town BNDD agents, all of the rank of Inspector, were imported to conduct the surveillance and, in order to cope with the jargon anticipated, 2 were assigned in tandem to each tap on a 24 hour basis. Judge Travia moreover insisted upon written reports on a regular basis covering short periods of the tap. In addition to written summaries and detailed logs which were submitted to him on February 4, 8, 16, 18, 24 and March 1 and 8, 1971, there were supplemental meetings and conversations throughout the period of the surveillance. In our view, the degree of judicial supervision is an important factor in determining whether a good faith effort to minimize was attempted. See United States v. Cox, supra, 462 F.2d at 1301. We agree with the finding of the court below that the taps were closely and conscientiously supervised by Judge Travia.

The Government maintains that in fact 85% of the conversations recorded were relevant to the authorized investigation. We are, however, unable to determine whether the estimate is accurate. Statistics in this area are properly suspect. What is significant in our view is that appellants' principal contention on appeal on this issue is that some 73 calls of 3 minutes or more duration involved conversations between Bynum's infant's babysitter, Donna, and her friends and classmates which were clearly innocent. The argument is made that in view of the length of the investigation and the pattern of innocence emerging from these calls, they should not have been intercepted.

The Government's contention in response, that although all conversations were recorded only 90% of them were in fact monitored by the agents, is not persuasive. We need not determine, however, whether the interception prohibited by the statute is aural intrusion or mechanical recordation.6 The difference here between what was monitored and what was recorded is insignificant and in fact not measurable (having been based on one agent's estimate). Assuming arguendo that there was a total interception of all of Donna's calls, we do not find a violation of the statute or any constitutional infirmity in their interception.

Our own examination of the logs supports the contention that Donna's conversations with friends were banal and for the most part devoid of content which would assist the investigation at issue. Of course, in making this retrospective judgment that the Donna calls were innocent, we enjoy the acuity of hindsight. United States v. La Gorga, supra, 336 F. Supp. at 196. While such conversations might well commence with teenage trivia, the eavesdropper, unless possessed of the prescience of a clairvoyant, could hardly predict when they might become relevant or when they might be interrupted by an adult with more pressing problems. Id. The record in fact reveals that Donna's innocence did not immediately become apparent. Even when it became obvious, Donna was also used to transmit messages and on occasion did reveal the whereabouts of Bynum and the company he was keeping.

Considering all of the circumstances set forth-the broad range of alleged criminality, Bynum's awareness of the taps, the supervision by Judge Travia- we agree with the court below that there was no violation of the minimization requirement of the statute.

V. OTHER ARGUMENTS

Appellant Bynum argues that he was denied the effective assistance of trial counsel because his trial counsel had at one time represented the Government witness Stewart. Appellant relies on a recent decision of this court, United States v. Alberti, 470 F.2d 878 (2d Cir. 1972), cert. denied, 411 U.S. 919, 93 S. Ct. 1557, 36 L. Ed. 2d 311 (1973) for the proposition that the trial judge should have conducted a hearing to determine whether or not a conflict exists. Contrary to his present position, the record contains an affidavit by Bynum indicating that he knew of his counsel's representation of Stewart at the beginning of the trial. Although Bynum was represented by two attorneys throughout the trial, no request for a hearing on this question was ever made until after the trial, and then on the basis of newly discovered evidence. It was properly denied by the trial judge. The representation of Stewart by Bynum's trial counsel was in a totally unrelated matter, an assault charge in a state court. There is no prejudice in any event since Stewart was acquitted and any avenue of cross-examination on this point would be fruitless. Moreover, the court below found that trial counsel had represented Bynum in an extremely competent manner. Under these circumstances we find no possible conflict of interest. Olshen v. McMann, 378 F.2d 993, 994 (2d Cir.), cert. denied, 389 U.S. 874, 88 S. Ct. 165, 19 L. Ed. 2d 157 (1967).

Appellant Birnbaum claims that there was reversible error committed because Stewart referred to the fact that Birnbaum was in jail for several months. The record discloses that the trial judge promptly admonished the jury to disregard and completely erase the remark from their minds. There is no basis for reversal. United States v. Stromberg, 268 F.2d 256, 269 (2d Cir.), cert. denied, 361 U.S. 863, 80 S. Ct. 119, 4 L. Ed. 2d 102 (1959).

In his "Reply and Supplemental Brief" appellant Altamura urges that the trial judge committed "plain error" in failing to charge the jury on the law and facts in regard to his alibi defense. Having failed to either request such a charge or to make a timely objection in accord with Fed. R. Crim. P. 30, Altamura cannot complain now. Goldsby v. United States, 160 U.S. 70, 77, 16 S. Ct. 216, 40 L. Ed. 343 (1895); Lewis v. United States, 373 F.2d 576, 579 (9th Cir.), cert. denied, 389 U.S. 880, 88 S. Ct. 116, 19 L. Ed. 2d 173 (1967); United States v. Tramaglino, supra, 197 F.2d at 932.

Appellants Mele and Coniglio complain that unique circumstances prevented the latter from testifying at the trial. In June 1971 Coniglio was convicted after a jury trial in the Eastern District of New York, of violating the narcotics laws. On June 15, 1972, this court reversed that conviction because the prosecution had suppressed certain relevant evidence. United States v. Mele, 462 F.2d 918 (2d Cir. 1972). Thus the argument is that had Coniglio testified in the instant April-May, 1972 trial, he would have been subjected to damaging cross-examination about his prior narcotics conviction, a conviction eventually overturned because of prosecutorial misconduct. The fallacy lies in the fact that Coniglio possessed, and failed to exercise, the right to request a prior ruling from the trial judge on whether the earlier conviction could be used on cross-examination. See, e. g., United States v. Palumbo, 401 F.2d 270 (2d Cir. 1968), cert. denied, 394 U.S. 947, 89 S. Ct. 1281, 22 L. Ed. 2d 480 (1969). Having neglected to make such an application below, the appellants are now in no position to urge that Coniglio was unfairly prevented from testifying.

Levis Nedd, along with some of the other defendants, complains that his in-court identification by Martin Carlin, the victim of the robbery, was the product of an impermissibly suggestive photographic display. Of course, "our inquiry must be whether under all the circumstances [the allegedly improper photographic display] gave rise to a very substantial likelihood of irreparable misidentification . . . . Moreover, in determining whether or not the suggestive photographic identification procedure resulted in misidentification, we may properly consider the other factors which were before the jury and were properly admissible which tend to establish that there was not substantial likelihood of misidentification." United States ex rel. Gonzalez v. Zelker, 477 F.2d 797, 801, 803-804 (2d Cir. 1973). Even assuming that the photographic display was impermissibly suggestive, the other evidence against Nedd was so overwhelming that the possibility he was the victim of misidentification is remote in the extreme. Stewart not only testified that Nedd was in on the planning of the robbery, but also related a subsequent conversation in which Nedd graphically described the circumstances surrounding his shooting of Carlin. In addition, when arrested in New Jersey, Nedd possessed jewelry and rings stolen from Carlin as well as an identification taken from another victim of the attempted robbery. See United States ex rel. Springle v. Follette, 435 F.2d 1380 (2d Cir. 1970), cert. denied, 401 U.S. 980, 91 S. Ct. 1214, 28 L. Ed. 2d 331 (1971). There was no constitutional infirmity here.

We have considered all arguments urged on us by appellants and find them to be without merit.

Affirmed.

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. § 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. § 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)).