U.S. v. Lieberman

Decision Date16 December 1980
Docket NumberD,No. 86,86
Citation637 F.2d 95
Parties7 Fed. R. Evid. Serv. 1396 UNITED STATES of America, Appellee, v. Myron LIEBERMAN, Appellant. ocket 80-1179.
CourtU.S. Court of Appeals — Second Circuit

Harvey M. Stone, Asst. U. S. Atty., Eastern District of New York, Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., Eastern District of New York, Mark A. Summers, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appellee.

Peter D. Aiken, Fort Lauderdale, Fla. (Aiken & Damore, Fort Lauderdale, Fla.), for appellant.

Before MOORE and KEARSE, Circuit Judges, and TENNEY, * District Judge.

KEARSE, Circuit Judge:

Myron Lieberman appeals from a judgment of conviction entered after a jury trial in the United States District Court for the Eastern District of New York before Mark A. Costantino, Judge, on one count of conspiracy to distribute and to possess with intent to distribute approximately 2,375 pounds of marijuana in violation of 21 U.S.C. § 846 (1976). Lieberman was sentenced, pursuant to 18 U.S.C. § 3651 (1976), to a term of five years' imprisonment, with four months to be served, three years' probation, and the remaining one year and eight months suspended. He was also fined $5,000 and sentenced to a special parole term of five years. We affirm the conviction, but vacate the sentence and remand for resentencing so that the special parole term may be deleted.

I

On Saturday, December 2, 1978, agents of the United States Drug Enforcement Agency ("DEA") in Brooklyn, New York, intercepted a shipment of more than one ton of marijuana as it was being unloaded from a van belonging to Lieberman Movers, a household moving company whose Fort Lauderdale office was run by the defendant Myron Lieberman. The agents arrested the driver of the van, John Briggs, and his helper, Calvin Mapp, along with the two men who were helping to unload the forty-six cartons containing the marijuana, Louis Caparella and Robert D'Ambra. This appeal arises out of the trial of Myron Lieberman and Willie Gaines, the warehouse foreman of Lieberman's Fort Lauderdale operations, on one count of conspiracy to distribute and to possess with intent to distribute the marijuana. 1 At trial, Lieberman stipulated that the marijuana had been shipped from his Florida offices to Brooklyn. He contends, however, that certain evidence offered at trial to link him with the shipment was improperly allowed, and that in any event there was not sufficient evidence to convict him.

The evidence against Lieberman came primarily from the testimony of William Flynn and Steven Hamilton, two former employees of Lieberman Movers in Fort Lauderdale, as to events at that operation from November 27 through December 4, 1978.

Flynn testified that on Monday, November 27, D'Ambra and Caparella visited the Fort Lauderdale warehouse of Lieberman Movers where they spoke with Joyce Lieberman, a secretary, and Alan Breslow, the dispatcher. Flynn overheard D'Ambra and Caparella say that Joe Lieberman, Myron's uncle who ran the Brooklyn office of Lieberman Movers, had "told them to see Myron about getting some dishpacks 2 for closing up a small business deal, moving some stuff back to New York." D'Ambra also spoke to Briggs who stated that he would see them in New York on Saturday morning. As D'Ambra and Briggs parted, Briggs put his hand in his pocket, and shortly thereafter told Gaines that the two men were good payers and wanted some "stuff" packed. Later that day, Flynn placed several bundles of flattened dishpacks on the loading dock, where they remained unopened through most of November 28.

When Flynn reported for work at 7:30 a. m. on Wednesday, November 29, approximately 40 dishpacks had been packed and sealed and were stacked along the warehouse wall. Flynn testified that the boxes had been taped in a way that, among Lieberman employees, was unique to Gaines. Later that morning, as Flynn and several other employees were standing nearby, Flynn overheard a conversation between Gaines and Briggs, which he described at trial, over Lieberman's objection, as follows:

Q Did you hear Mr. Gaines say anything?

A Mr. Gaines told Mr. Briggs, I heard you come in last night with the truck. Approximately 9:00 o'clock at night.

Q At approximately 9:00 o'clock?

A Yes.

Q And did Mr. Briggs say anything?

A He says where were you. And Mr. Briggs A Mr. Briggs said he was parking the truck at 9:00 o'clock at night and Mr. Gaines said, I heard you come in. Mr. Briggs asked Mr. Gaines, where were you. He said, I was in the warehouse packing up this stuff and he pointed to the row of the pile of dishpacks.

Q This is the pile of dishpacks that you referred to that were standing against the wall of the warehouse?

A Yes. These are two of them.

Q The two that you have identified here and the others?

A Yes, sir.

Q After Mr. Gaines said I was here packing up the stuff, what did Mr. Briggs say?

A Mr. Briggs said, how come you don't open up the door. And Mr. Gaines told him, he says, Myron says don't open up the door for anybody, the warehouse door.

On Thursday, November 30, Flynn and Hamilton were sent home at approximately 7:45 a. m., but before they left they saw the dishpacks still stacked against the wall. Later that afternoon, when they returned to the warehouse to check on Friday's work schedule, they saw Briggs's truck being loaded. When they arrived at work on Friday, December 1, the dishpacks were gone.

Later that day, Flynn telephoned his cousin, Joseph Flynn, an F.B.I. agent in Los Angeles, to inform him that he suspected a shipment of marijuana was on its way to New York. Agent Flynn notified the DEA, which made arrangements that resulted in the arrests in Brooklyn on December 2.

Hamilton's testimony paralleled Flynn's to some extent since Hamilton was in the group of employees who heard the November 29 conversation quoted above, in which Gaines stated that Lieberman had told him not to open the door for anyone while he was packing dishpacks on the night of November 28. 3 Hamilton also testified that he asked Gaines what was in the dishpacks. Gaines's reply was, "Just a bunch of junk." When he later asked Lieberman, in full view of the 46 dishpacks, what the dishpacks were doing stacked against the warehouse wall, Lieberman responded, "What dishpacks?" and walked away.

On Monday, December 4, two days after the arrests in Brooklyn, Hamilton had two conversations with Lieberman. In the morning, when he entered Lieberman's office to pick up his pay check, Lieberman shouted at Hamilton, "If you don't learn to shut your mouth ...," and stopped. Hamilton asked what Lieberman was talking about, to which Lieberman replied, "Nothing." Later, Lieberman called Hamilton into his office where he told him to close the door and turn up the radio; he apologized for having shouted at Hamilton, stating that he was upset because one of his best trucks had been seized in New York. Hamilton described the remainder of the conversation as follows:

Q And what if anything did he say after that?

A He told me that the D.A. would be down to talk to a few people around the warehouse. I asked him who the D.A. was. He said, "The Drug Administration."

Q And did he say anything else after that?

A No, I asked him what are they going to ask us. And he says, "Well, whatever they ask you," he says, "just tell them, you know."

Q What happened after that?

A I said, "Well, if they ask I will just tell them the truth."

And he said, "Yes."

And he has a fish on his wall. And he pointed to the fish on the wall and he asked me if I knew how the fish got caught.

Q What did you say?

A I said, "No, I didn't."

Q And what did he say?

A He said, "By opening up his mouth."

Q And was there anything further said during that conversation?

A No, sir. I just said, "Oh, well." 4

In addition to the testimony of Flynn and Hamilton, the government introduced several documents. A shipping contract for 46 dishpacks, dated November 28, 1978, had been signed by Myron Lieberman and by consignee "Jaime Peters." The only addresses shown for Jaime Peters were the Lieberman Movers offices in Fort Lauderdale and Brooklyn; despite efforts by the DEA, Peters was never located. The shipment inventory prepared by Gaines bore the notation "PBO" which indicated that the dishpacks had been packed by the owner of the contents. The Government also introduced records from the Newport Resort Hotel in Miami Beach, Florida showing that someone using the name and address of Robert D'Ambra had registered as a guest at 9:44 p. m. on November 27, 1978, and that at 10:05 p. m. a telephone call had been placed from D'Ambra's room to the unlisted telephone number of Myron Lieberman.

For the defense, Lieberman called John Gibson, a co-worker of William Flynn, who testified that Flynn had stated that he was receiving $800 a month from the DEA while the case against Lieberman was pending, and that he would receive $10,000 when the case was completed. Gibson testified that Flynn had said he was "out to screw Myron Lieberman and his driver." Lieberman also introduced documents reflecting DEA payments to Flynn. Gaines called no witnesses and presented no evidence.

The jury found Lieberman guilty of the conspiracy charged; it found Gaines not guilty.

II

Lieberman's principal contentions on this appeal are that the trial judge erred in allowing Flynn and Hamilton to testify to the conversation between Gaines and Briggs and in admitting the hotel registration card, and that even considering the challenged evidence, there was insufficient evidence to establish his participation in the conspiracy. We find no merit in any of his contentions.

A. Admission of the Hotel Record

The government contends principally that the hotel guest registration card was admissible either under the business records exception to the hearsay rule or as non-hearsay evidence not offered for the truth of the matter reflected therein. We...

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