604 F.2d 121 (2nd Cir. 1979), 1051, United States v. Barnes

Docket Nº:1051, 1056, 1058-1061, 1063, 1067.
Citation:604 F.2d 121
Party Name:UNITED STATES of America, Appellee, v. Leroy BARNES, a/k/a
Case Date:April 23, 1979
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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604 F.2d 121 (2nd Cir. 1979)

UNITED STATES of America, Appellee,

v.

Leroy BARNES, a/k/a "Nicky", Steven Baker, a/k/a "Jerry",

Steven Monsanto, a/k/a "Fat Stevie", John Hatcher, a/k/a

"Bo", Joseph Hayden, a/k/a "James Hayden", a/k/a "Freeman

Hayden", a/k/a "Jazz", Wallace Fisher, Leon Johnson,

a/k/a"J.J.", Waymin Hines, a/k/a "Wop", Leonard Rollock,

a/k/a "Petey", James McCoy, Walter Centeno, a/k/a "Chico

Bob", Defendants-Appellants.

Nos. 1045-1053, 1056, 1057; Dockets 78-1040, 1045, 1050,

1051, 1056, 1058-1061, 1063, 1067.

United States Court of Appeals, Second Circuit

April 23, 1979

Argued June 22, 1978.

Rehearing and Rehearing En Banc Denied June 18, 1979.

Dissenting Opinion June 22, 1979.

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Robert B. Fiske, Jr., U. S. Atty., S.D. New York, New York City (Thomas H. Sear, Robert B. Mazur, T. Barry Kingham, Lawrence Pedowitz, Richard D. Weinberg, Robert J. Jossen, Asst. U. S. Attys., New York City, of counsel), for appellee.

Edward M. Chikofsky, New York City (David Breitbart, H. Richard Uviller, New York City, of counsel), for defendant-appellant Barnes.

Michael Young, New York City (Goldberger, Feldman & Dubin, New York City, of counsel), for defendant-appellant Baker.

Mel A. Sachs, New York City, for defendant-appellant Monsanto.

Helene M. Freeman, New York City (Robert Koppelman, New York City, of counsel), for defendant-appellant Hatcher.

Joel A. Brenner, East Northport, N. Y., for defendant-appellant Hayden.

Mark Lemle Amsterdam, New York City, for defendant-appellant Fisher.

Joseph T. Klempner, New York City, for defendant-appellant Johnson.

Mark S. Arisohn, New York City, for defendant-appellant Hines.

Melvyn Schlesser, New York City (Bobick, Deutsch & Schlesser, New York City, of counsel), for defendant-appellant Rollock.

J. Jeffrey Weisenfeld, New York City (Steven M. Jaeger, New York City, on the brief), for defendant-appellant McCoy.

Barry Bohrer, New York City (Bohrer & Ullman, New York City, of counsel), for defendant-appellant Centeno.

Before MOORE, VAN GRAAFEILAND and MESKILL, Circuit Judges.

MOORE, Circuit Judge:

Leroy ("Nicky") Barnes, Steven Baker, Steven Monsanto, John Hatcher, Waymin Hines, Leonard Rollock, James McCoy, Walter Centeno, Leon Johnson, Joseph Hayden, and Wallace Fisher appeal from judgments of conviction entered on January 19 and 23, 1978, in the United States District Court for the Southern District of New York after a ten-week trial before the Honorable Henry F. Werker, District Judge, and a jury. The defendants were convicted of conspiracy to violate the federal narcotics laws, in violation of 21 U.S.C. § 846, and of various substantive violations thereof (21 U.S.C. §§ 812, 841(a) (1), and 841(b)(1)(A)). In addition, defendant Barnes was convicted of engaging in a continuing criminal enterprise involving narcotics, in violation of 21 U.S.C. § 848, and defendant McCoy was convicted of unlawful possession of a firearm during the commission of a federal felony (18 U.S.C. § 924(c)(2)).

Those defendants who appeal have submitted a Joint Brief (J.Br.) of 94 pages and a reply brief of 71 pages covering common issues on appeal. In addition, separate briefs have been filed by individual appellants as to issues that apply more particularly to them. In view of the complexity of the issues raised on appeal, we set forth a summary of the charges in the indictment, insofar as it relates to appellants, followed

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by a brief chronological sketch of the narcotics investigation which led to the instant prosecution, the facts of which were presented to the jury during the ten weeks of trial.

THE INDICTMENT

Count ONE charged a conspiracy by Barnes, Baker, Monsanto, Hatcher, Hayden, Wallace Fisher, Hines, Rollock, McCoy, and Centeno to violate the narcotics laws of the United States, 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A), 846. The object was the possession and distribution of heroin and cocaine. Thirty-three overt acts were alleged. Additional defendants named in this count included Guy Fisher, Gary Saunders, Wayne Sasso, and Brenda Sasso. The jury failed to reach a verdict as to Guy Fisher. Saunders and Wayne Sasso were acquitted. The charge against Brenda Sasso was dismissed by the court.

Count TWO charged Barnes with operating a "continuing criminal enterprise" to violate 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) in concert with five or more other persons with respect to whom he occupied a position of organizer, supervisor, or manager, and from which enterprise he obtained "substantial income or resources". 21 U.S.C. § 848.

The Substantive Narcotics Violation Counts 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A), and 18 U.S.C. § 2

  1. The Heroin Charges

    Count THREE charged Barnes, Baker, Monsanto, McCoy, and Fisher with possessing and distributing approximately 445 grams of heroin on or about December 29, 1976.

    Count FOUR charged Barnes, Hatcher, and Fisher with possession and distribution of approximately 457 grams of heroin on or about March 11, 1977.

    Count FIVE made the same charge against Barnes, Hines, and Centeno, the date being on or about March 14, 1977, and the amount being 892.7 grams.

    Count SEVEN charged Baker and McCoy with possession and distribution of some 191 grams of heroin on or about March 1, 1977.

    Count ELEVEN charged Barnes, Rollock, and Fisher with possession and distribution, on or about November 29, 1976, of 107.6 grams of heroin.

  2. The Cocaine Charges

    Count TWELVE charged Johnson with possession and distribution, on or about December 4, 1976, of some 24.1 grams of cocaine.

    Count THIRTEEN charged Johnson with possession and distribution of 99.5 grams of cocaine on or about December 14, 1976.

    The Firearms Violations

    Count EIGHT charged McCoy with carrying a firearm, on or about March 15, 1977, during the commission of a federal felony, in violation of 18 U.S.C. § 924(c) (2).

    In addition, McCoy and Centeno were charged with separate firearms violations. Count SIX, in which Centeno was charged, was dismissed at the close of the Government's case. The jury acquitted McCoy under Counts NINE and TEN.

    THE INVESTIGATION

    Apparently as a result of a New York State narcotics investigation, Inez Smart, a narcotics "activist", was arrested in March 1977. She agreed to cooperate and testified at trial. Her testimony, in substance, was that, in October 1974, she had met the defendant Barnes through a Richard Smith; that Barnes had desired to purchase quinine (a narcotics cutting material) in large quantities ($150,000 worth a month) at $25 an ounce; and that, upon delivery of 1000 ounces, Smith and Barnes had paid her $25,000. Further quinine transactions took place during 1975.

    In December 1974 police officers stopped a Mercedes Benz leased by Barnes from Hoby Darling Leasing Corporation and driven by Barnes. Richard Smith and one Robert Monroe were passengers. In the trunk of the car the police found over $132,000 in cash, mostly small bills.

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    In November 1976 the Drug Enforcement Administration (DEA), in an effort to uncover sources of drug traffic in Harlem and the South Bronx, enlisted, for a financial consideration and witness protection, the services of Robert Geronimo. He had grown up in the South Bronx and was friendly with many of the defendants. Geronimo also was familiar with the Kingdom Auto Leasing Corporation in the Bronx, owned by Guy Fisher and apparently used by the Barnes organization narcotics dealers to avoid car forfeiture if narcotics were found therein.

    In November 1976, Geronimo, in an effort to infiltrate what was believed to be the Barnes organization, called upon Wallace Fisher, a younger brother of reputed Barnes confederate Guy Fisher, in an endeavor to enlist his services. At about this same time, undercover agent Louis Diaz of the DEA appeared with money to make substantial purchases. Geronimo represented Diaz to Wallace Fisher 1 as his Italian cousin with money to make narcotics purchases.

    On November 29, 1976, for the sum of $8,300 ($8,000 for the narcotics and $300 for Fisher), one-eighth of a kilogram of heroin was sold by Rollock to Geronimo and Diaz. This transaction formed the basis for Count ELEVEN of the indictment. Rollock and Fisher were convicted on this charge; Barnes was acquitted.

    "Money-washing" is apparently an important step in the narcotics business. It involves the conversion of many small bills into larger denominations. In mid-December 1976, at the Hubba Hubba Social Club in Harlem, Barnes asked Fisher whether he and Geronimo could handle a "wash". This was accomplished at a downtown bank by Diaz and Wayne Sasso (who was acquitted of the conspiracy charge arising from this transaction). Defendant Hayden, when told of the success of the "wash", expressed his satisfaction with the operation.

    Shortly thereafter, on an occasion when Barnes met Fisher at Bubba Jean's Emporium, Barnes asked Fisher why he (Fisher) and Geronimo had gone to Rollock; Barnes directed that, for any further deals, Fisher and Geronimo should see defendant Monsanto ("Fat Stevie"). A deal was consummated subsequently at the Harlem River Motors Garage, whereat Geronimo gave $21,000 to Monsanto, who in turn gave Geronimo one-half kilogram of heroin which, according to the conspirators, had come from...

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