United States v. Bennett

• Decision Date: 26 February 1969
• Docket Number: No. 214-216,Dockets 32327,32328 and 32336.,214-216
• Citation: 409 F.2d 888
• Parties: UNITED STATES of America, Appellee, v. Charles T. BENNETT, Wilbert Haywood, Elmer Jessup, Henry Stanton and Farris Thomas, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

409 F.2d 888 (1969)

UNITED STATES of America, Appellee, v. Charles T. BENNETT, Wilbert Haywood, Elmer Jessup, Henry Stanton and Farris Thomas, Appellants.

Nos. 214-216, Dockets 32327, 32328 and 32336.

United States Court of Appeals Second Circuit.

Argued December 5, 1968.

Decided February 26, 1969.

COPYRIGHT MATERIAL OMITTED

Frederic A. Johnson, New York City, for appellant Wilbert Haywood.

Irving Younger, New York City (Michael O. Finkelstein, New York City, of counsel on the challenge to the Grand Jury), for appellants Charles T. Bennett and Henry D. Stanton.

Robert Kasanof, New York City, for appellant Elmer Jessup.

Patrick M. Wall, Washington, D. C. (Edward Bennett Williams, William E. McDaniels, Washington, D. C.), for appellant Farris Thomas.

Charles P. Sifton, Ass't. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. for the Southern Dist. of New York, Abraham D. Sofaer, William B. Gray and Paul K. Rooney, Ass't U. S. Attys., on the brief), for appellee.

Before LUMBARD, Chief Judge, FRIENDLY, Circuit Judge, and FRANKEL, District Judge.^*

FRIENDLY, Circuit Judge:

The five appellants, Bennett, Stanton, Haywood, Jessup and Thomas were the subjects, along with nine co-defendants and four co-conspirators, of a single count indictment in the District Court for the Southern District of New York, charging them with having engaged in a conspiracy to import narcotics and to distribute these in the United States in violation of 21 U.S.C. §§ 173-174. The case against eight defendants was severed, and the jury acquitted a ninth, Harris. Appellants were convicted and given heavy sentences, ranging from 12 to 20 years.

The prosecution's evidence showed a sizeable conspiracy of the familiar "chain" type. The entrepreneurs were three Australians — appellant Bennett, Hopes and Egan — who bought heroin in Hong Kong at low prices starting around May 1966, and had couriers convey it on their persons by air to the United States, generally to New York, where the principals would distribute it at a large mark-up. During the seven-month life of the conspiracy a number of couriers were employed, including appellant Stanton as well as Reid, Lewis and Summerill, who were the Government's principal witnesses at the trial. Appellants Haywood, Jessup and Thomas were distributors in New York.

It is unnecessary to make a complete statement of the colorful evidence. None of the appellants challenges its sufficiency — indeed, the record fairly shrieks of guilt — and some of it is summarized in footnotes 1-4. At this point we shall recount only the last stages of the drama since they give rise to a number of the arguments made on appeal.

Reid on his penultimate trip from Hong Kong in early November, 1966, carried 25 one ounce packets of heroin which Stanton delivered to him there. In addition Reid approached a rickshaw boy named Muk, who had already served as a source of supply, and purchased with his own funds an additional six ounces for $600. On arriving in New York Reid delivered the 25 ounces to Egan and received $4,500; Egan also bought the six ounces for $2,400, apparently with knowledge of their separate origin. When Reid returned to Hong Kong late in the month, Hopes propositioned him for a final trip. The arrangements for this were to be somewhat altered. Instead of being a paid employee, Reid was to buy the heroin from the syndicate in Hong Kong at $200 per ounce with his own funds, pay his own expenses and resell to it in New York at $1,000 an ounce. This trip was postponed and, in early January, 1967, Egan, then in Hong Kong, got in touch with Reid and made a still different proposal, namely, that Reid buy heroin there from his own source of supply and sell it to Egan in New York for $600 an ounce. It is clear this proposal was independent of the one made by Hopes and Bennett, since it offered Reid a much smaller margin of profit. Bennett came to Hong Kong a few days later. He told Reid that he was endeavoring to find a better quality of heroin and that the trip on which Reid would earn the $800 differential per ounce would have to be postponed again. Reid indicated he had his own source of pure heroin, again via Muk the rickshaw boy, and inquired whether the syndicate would be prepared to buy from him in New York. Bennett thought it would be better if Reid would wait a week until Hopes' arrival. Reid decided not to wait, went immediately to Muk, bought some 26 ounces of heroin the next day, and boarded a plane for Honolulu. There two United States customs agents arrested and searched him and found on his person the heroin and a card with the names and phone numbers of Egan and Jessup.

Reid decided to cooperate. He and two federal agents flew to New York, where they registered at a hotel. They installed in Reid's room a tape recorder and a microphone leading to an adjacent room. Reid telephoned a woman whose name and number Egan had given him. Shortly thereafter Egan called, said he had picked up "some unwanted friends" and had been obliged to leave town but would send "Caroline," the code name for Haywood,¹ who would identify himself by a password. Haywood did not appear but, after more telephoning and the lapse of several days, defendant Harris did and was promptly arrested.

On the same day, January 12, 1967, Egan was arrested in a room registered under the name of Austin Burke at a Miami Beach hotel. Found on him was an envelope with the partially obscured notations "Caroline" and "Glen," which was Reid's first name. Haywood was arrested the same evening in his Greenwich Village apartment; the agents discovered an apparatus used in determining the purity of drugs and $5,000 in cash. Jessup was also arrested that day in his Manhattan apartment;² the agents found an address book and a business card containing the telephone listings of Egan, Thomas, Hopes and "Carolina"; a list of names and numbers headed by "Carolina — 5400," and a slip containing the address of Egan's apartment and the name "Thomas."

Thomas' arrest³ came seven weeks later, in his Manhattan apartment. The agents found two address books both of which contained the telephone numbers of "Dog," a business card of "Austin Burke," Egan's assumed name, and a letter from Egan, of which more hereafter.⁴

I. The Grand Jury

The sole point briefed by appellants Bennett and Stanton concerns their challenge to the method of grand jury selection in the Southern District of New York. With the approval of the trial judge it was stipulated that similar motions made before Judge Tyler in United States v. Leonetti, 291 F.Supp. 461 (S.D.N.Y.1968), would be considered to have been made here, and that his decision thereon would be deemed the decision in this case as well. In a careful opinion Judge Tyler overruled the challenge. The basic contention of the movants was that the jury selection system⁵ operated unfairly to minimize participation by black and Puerto Rican citizens and, generally, by the urban poor. Conceding that "Gross disparities in the representation of any identifiable group in the community of course serve to call scrutiny to the system," the judge concluded that "the disparities relied upon by movants are almost completely the product of the hardship excuse procedures." He found also that the attack based on the long discarded practice of choosing grand jurors by relying in part on impermissible sources such as recommendations of the Grand Jury Association, the Social Register, and real estate listings, as against voter registration lists, had much less force today than when it was rejected years ago in United States v. Dennis, 183 F. 2d 201, 218 (2 Cir. 1950), aff'd, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951), and, more recently, in United States v. Van Allen, 208 F.Supp. 331 (S.D.N.Y.1962), aff'd sub nom. United States v. Kelly, 349 F.2d 720, 777-779 (2 Cir. 1965), cert. denied, 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544 (1966). See also United States v. Flynn, 216 F. 2d 354, 385-386 (2 Cir. 1954), cert. denied, 348 U.S. 909, 75 S.Ct. 295, 99 L.Ed. 713 (1955). Granting, as Judge Tyler did, that the Jury Selection and Service Act of 1968, 82 Stat. 53, 28 U.S.C. §§ 1861-1867, will produce more thoroughly representative juries in the Southern District of New York, we find no evidence of invidious discrimination sufficient to require invalidation of this indictment.

II. Evidence allegedly stemming from an independent venture by Reid

Turning to the conduct of the trial, we shall deal first with two contentions which have as a common ground a claim that Reid's final trip was not a part of the conspiracy charged in the indictment but rather an independent venture of his own. One of these, to be discussed below, relates to a statement made considerably before the trip by Lewis to Reid concerning Jessup. The other is that it was error to admit into evidence against all the defendants the heroin seized from Reid in Honolulu and to allow the jury to hear the story of his post-arrest contacts with Egan and Harris.

Since the heroin was real evidence, its admissibility is governed by the rule, stated in Lutwak v. United States, 344 U.S. 604, 618, 73 S.Ct. 481, 97 L.Ed. 593 (1963), that though hearsay declarations of a co-conspirator are admissible against the others only if made during and in furtherance of the conspiracy, acts relevant to prove the conspiracy are admissible even if they occurred after the conspiracy had ended. Here the jury could reasonably have inferred from proof of Reid's possession of concealed heroin on his person at the time of his passage through Customs that he either had had previous experience as a courier or had been instructed by other conspirators.

Furthermore, the heroin would have been properly admitted even if it were necessary to show that it was taken from Reid while he was acting in furtherance of the conspiracy. It is common ground that in conspiracy the agreement itself is the crime, and that "it is...