U.S. v. Lawson

• Decision Date: 02 June 1975
• Docket Number: 74-1996,Nos. 74-1982,s. 74-1982
• Citation: 545 F.2d 557
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George LAWSON and Ronald Scharf, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 557

545 F.2d 557

UNITED STATES of America, Plaintiff-Appellee, v. George LAWSON and Ronald Scharf, Defendants-Appellants.

Nos. 74-1982, 74-1996.

United States Court of Appeals Seventh Circuit.

Argued June 2, 1975. ^*

Decided Aug. 20, 1975.

Carl M. Walsh, Edward M. Genson, Chicago, Ill., for defendants-appellants.

Samuel K. Skinner, U. S. Atty., Jerome C. Randolph, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, MOORE, Senior Circuit Judge, ^** and PELL, Circuit Judge.

MOORE, Senior Circuit Judge.

George Lawson and Ronald Scharf appeal from judgments of conviction following a Although we do not discuss each issue below, we have considered each of the issues raised very carefully and we affirm the convictions.

jury trial before Judge Bernard Decker, Northern District of Illinois, on a one count indictment charging Lawson and Scharf as well as Bobbie Arnstein and George Matthews with conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Matthews pleaded guilty and testified for the government at the joint trial of Lawson, Arnstein ¹ and Scharf. Lawson and Scharf raise a plethora of issues on appeal including lack of speedy trial; a bar to prosecution from a prior dismissal of an indictment with prejudice; defective indictment due to reference to cocaine rather than coca leaves; statutory misclassification of cocaine as a narcotic; improprieties in wiretap procedure requiring suppression; proof of multiple conspiracies rather than a single one; a double jeopardy problem in terms of a relationship between a prior conspiracy for which Lawson was convicted and the instant conspiracy; improper admission of "business records"; prejudicial conduct of trial judge; and the giving of a portion of the charge in Lawson's absence.

The evidence at trial indicated that Lawson who was residing in Jamaica, B.W.I., acted as a go-between in getting Scharf, a potential Chicago purchaser-distributor of cocaine, into contact with Matthews who lived in Florida and had large quantities of cocaine for sale.

Lawson, a resident of Jamaica, sent his girlfriend to Matthews' Miami home in August 1971 to obtain cocaine and bring it to Jamaica. Lawson then telephoned Matthews and indicated that he knew several people in the United States who would be interested in purchasing cocaine. Matthews gave Lawson an unpublished phone number to be given to "Ronnie" from Chicago. Following a phone contact, Ronald Scharf and Ira Sapstein flew to Miami to see Matthews, where the three of them sampled cocaine. Scharf left for Chicago with an ounce and a half sample having given Matthews two phone numbers where he could be reached, one of them being a number for the Playboy Mansion. Scharf returned to Miami a few days later but no transaction occurred due to Scharf's financial inability. On September 10, 1971 Scharf visited Matthews, accompanied by Bobbie Arnstein, and in the course of the visit accepted a half-pound of cocaine. On September 13 an informant carrying $6,250 in government funds purchased some cocaine from Scharf, while drug enforcement agents watched, although they were unable to see the exchange of money for the white crystalline powder.

On September 14, Lawson phoned Matthews to inquire when he (Lawson) would be paid for the Scharf-Matthews transaction.

About a week later Matthews and his wife drove to Chicago where Matthews and Scharf discussed payment by Scharf to Matthews for the half-pound at the Arnstein apartment.

Scharf arranged a purchase with Matthews in November for the informant and an undercover agent. In the meantime, Scharf's phone had been tapped. Matthews was arrested when he attempted to complete a cocaine sale with the undercover agent.

Appellants have raised many issues involving the obtaining and processing of wiretap evidence and the conduct of the trial. Before discussing the claims based on governmental noncompliance with the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 we will consider a few of appellants' arguments with respect to alleged faulty trial procedures.

LACK OF SPEEDY TRIAL

Lawson and Scharf were both named in an indictment in this case in December Trial was originally scheduled for June 1973 but the government's chief witness, Matthews, disappeared before trial. In August 1973 Lawson filed a demand for immediate trial. In September 1973 due to Matthews' continuing unavailability, the government moved to dismiss the original indictment. Matthews was located in October 1973 and the second indictment was returned in March 1974. The case was set for trial for July 1974 but was continued until October 1974 because of the calendar situation for a trial of the length estimated by counsel.

1972 and they claim that they were deprived of their constitutional right to speedy trial by the twenty-two month pre-trial delay from December 1972 to October 1974. The right of a defendant to a speedy trial is not absolute and exists in a balance with the right of the public to have offenders prosecuted. The Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) has indicated that where a delay has occurred a court must consider four factors (1) the length of delay; (2) the reasons for delay; (3) defendant's requests for trial; and (4) whether or not defendant was prejudiced by the delay to determine whether a defendant has been denied his constitutional right to speedy trial. In this case, considering these factors, we find that Lawson and Scharf did not suffer a deprivation of their constitutional speedy trial right.

In Barker v. Wingo, supra, reaffirmed in Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973), the Supreme Court indicated that we must examine and balance the above-mentioned factors. We, therefore, turn to the reasons for the delay. The initial delay in the summer of 1973 was the result of Matthews' unavailability. There has been no indication that the government did not make a good faith effort to locate the missing witness. See also Barker v. Wingo, 407 U.S. at 531, 92 S.Ct. 2182; United States v. DeTienne, 468 F.2d 151 (7th Cir. 1972), cert. denied, 410 U.S. 911, 93 S.Ct. 974, 35 L.Ed.2d 274 (1973). Once Matthews was located in October he gave further information necessitating additional investigation by the government. This resulted in another delay before the new indictment of March 1974 was returned.

From that point until July 1974 various pretrial motions occupied the attention of defense counsel, the government, and the court. During a colloquy about scheduling on July 16, 1974, Judge Decker informed counsel that he would be attending a judicial administration conference on July 27. Defense counsel indicated that they did not believe the trial could be completed by then. Since counsel for Arnstein was unavailable in August and Judge Decker had another lengthy trial scheduled in September, trial was set for October 21, 1974. Based upon the record in this case, we find that the defendants were not deprived of a speedy trial.

DOUBLE JEOPARDY

Lawson claims that his conviction in this case violates the constitutional protection against double jeopardy due to an alleged relationship between the instant conspiracy and the conspiracy charged in United States v. Lawson, 507 F.2d 433 (7th Cir. 1974). An examination of the facts of the earlier case reveals that the two conspiracies were different and prosecution for each is entirely proper. While there are some similarities between the two conspiracies, the parties involved, the mode of distribution, and Lawson's role were different in each and his double jeopardy claim must fail. See United States v. Barzie, 433 F.2d 984 (2d Cir. 1970), cert. denied, 401 U.S. 975, 91 S.Ct. 1194, 28 L.Ed.2d 324 (1971). Cf. Dryden v. United States, 403 F.2d 1008, 1009 (5th Cir. 1968); United States v. Edwards, 366 F.2d 853, 872 (2d Cir. 1966), cert. denied, 386 U.S. 919, 87 S.Ct. 882, 17 L.Ed.2d 790 (1967).

THE WIRETAP EVIDENCE

Congress has specified the procedure for securing judicial authority to intercept wire communications in the investigation of certain serious offenses in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520. 18 U.S.C. § 2516(1) provides that the Attorney General or a specially designated Assistant Attorney General must authorize every wiretap application submitted for approval to the district court. ² The district court must make certain findings before authorizing interceptions including (1) the lack of other investigative techniques and (2) the existence of probable cause. ³ The law enforcement agency is required to produce the tapes to the authorizing judge for sealing once the order expires and the statute provides for official control of the custody of any recordings or tapes until the time of trial. ⁴ Notification to those subject to the surveillance is required prior to use of the tap evidence at trial. ⁵ Suppression of evidence derived from electronic surveillance is required by the statute when communication has been unlawfully intercepted or when approval of the wiretap order is insufficient on its face. ⁶

Appellants moved to suppress the wiretap evidence prior to and at trial, alleging violations of all of the provisions referred to above. The trial judge denied the suppression motions and admitted the evidence. We must determine whether the government failures to comply with statutory provisions are of the type which " . . . require suppression where there is failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device." United States v. Giordano, 416 U.S. 505 at 527, 94 S.Ct. 1820, at 1832, 40 L.Ed.2d 341 (1974).

Appellants...