U.S. v. Perry

• Decision Date: 13 May 1981
• Docket Number: 1051 and 1052,Nos. 783,998,999,997,D,s. 783
• Citation: 643 F.2d 38
• Parties: 7 Fed. R. Evid. Serv. 1224 UNITED STATES of America, Appellee, v. Leroy PERRY, Leroy Butler, Charles Cameron, Donald Dewees, Arthur Gibbons, and Willie Earl Patterson, Appellants. ockets 79-1407, 79-1456, 79-1458, 79-1477, 79-1486 and 79-1496.
• Court: U.S. Court of Appeals — Second Circuit

Page 38

643 F.2d 38

7 Fed. R. Evid. Serv. 1224

UNITED STATES of America, Appellee, v. Leroy PERRY, Leroy Butler, Charles Cameron, Donald Dewees Arthur Gibbons, and Willie Earl Patterson, Appellants.

Nos. 783, 997, 998, 999, 1051 and 1052, Dockets 79-1407,

79-1456, 79-1458, 79-1477, 79-1486 and 79-1496.

United States Court of Appeals Second Circuit.

Argued June 16, 1980.

Decided Feb. 9, 1981.

As Amended March 19, 1981.

Rehearing and Rehearing In Banc Denied May 13, 1981.

Jerome H. Field, Brooklyn, N. Y., for appellant Leroy Perry.

Lawrence K. Feitell, New York City (Ozro T. Wells, New York City, on brief), for appellant Leroy Butler.

Lawrence K. Feitell, New York City, for appellant Charles Cameron.

Irving Perl, New York City, for appellant Donald Dewees.

Marguerite Spencer Hines, New York City, for appellant Arthur Gibbons.

Peter J. Maloney, New York City (Harold B. Foner, Brooklyn, N. Y., on brief), for appellant Willie Earl Patterson.

Laurence A. Urgenson, Asst. U. S. Atty., Brooklyn, N. Y. (Edward R. Korman, U. S. Atty. for the E. D. N. Y., Harvey M. Stone, Victor J. Rocco, Asst. U. S. Attys., Brooklyn, N. Y., on brief), for appellee.

Before OAKES and VAN GRAAFEILAND, Circuit Judges, and NICKERSON, District Judge. ^*

OAKES, Circuit Judge:

This case, dealing with the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 841(a)(1), 846, is here on appeal from judgments of conviction in the United States District Court for the Eastern District of New York, Jacob Mishler, Judge. This appeal presents a novel question whether members of a single distribution network for substances (mannite and quinine), which are themselves legal and uncontrolled but which are used as agents for cutting heroin, can be prosecuted for one conspiracy by virtue of their common source, their knowledge of one another's position in the network, and their intent that the uncontrolled substances would be used as cutting agents, despite the fact that the conspirators were simultaneously involved in different independent networks which distributed the illegal element, heroin. Put another way, where the raw heroin utilized for manufacture of the final "street" product did not come from a common source or from a new common pool, may there be conspiratorial liability for selling uncontrolled dilutant compounds to the different and, so far as appears, unconnected heroin dealers? My colleagues affirm on the basis that appellants were properly convicted under 21 U.S.C. § 846 for conspiracy to violate 21 U.S.C. § 841 by aiding and abetting the distribution of heroin. ¹ I disagree,

but because two of the principal alleged coconspirators were themselves substantial heroin dealers I would hold that any error as to them (and their respective confederates) was harmless. I would, however, reverse as to appellant Donald Dewees.

FACTS

The facts need not be spelled out in great detail. One Canadian pharmaceutical source of mannite and quinine, Joel Merling, sold vast quantities of these uncontrolled substances which are, and in certain cases were proven to be, used as heroin cutting agents, or "diluents" (although they can be used, respectively, for laxative or medicinal purposes), to a New Yorker, Hyman Lieberman. Lieberman stored the substances in his store on the lower East Side of Manhattan and resold them with the aid of Israel (Paddy) Pollack. Pollack was friendly with and had access to various members of the black community in Harlem, including the appellants and other people in the drug business.

In July of 1974 Lieberman and Pollack employed Gerald Gewirtz to pick up and unload incoming shipments of mannite and quinine, and to make deliveries to Pollack's customers. Gewirtz, apprehended on another charge in June 1976, became an informant and thereafter for six months made deliveries of some seventy-four boxes of mannite weighing twenty pounds each to appellants, their apartments, their vehicles, their stores or shops, and, in the case of Leroy Butler, his New Jersey home. These deliveries were monitored, that is, they were under police surveillance. Sales prices to appellants totaled tens of thousands of dollars, and credit was extensively used. Gewirtz testified as to heavy mannite-quinine traffic and his deliveries in late 1976 were substantiated by photographs and tape recordings.

The other chief Government witness was Frank Lucas, the well-known Harlem drug trafficker who is currently serving consecutive federal and state prison terms totaling seventy years. Lucas testified as to transactions with appellant Butler throughout 1974 in which Butler gave him mannite and quinine in exchange for heroin. These transactions took place at the Audubon Garage in Washington Heights. The garage was owned by a corporation in which Butler was a stockholder and on behalf of which appellant Arthur Gibbons at one point served as a leasing agent. Lucas on occasion played cards with Butler and Pollack at the Audubon Garage, and Gewirtz made a number of mannite-quinine deliveries there. Lucas's and Butler's dealings were arranged during meetings either at a Harlem social club or at the Bridge Apartments (located across the street from the Audubon Garage) where Butler had an apartment and where, from time to time, Gewirtz also brought mannite and quinine to Butler or to Willie Earl Patterson. Lucas testified to three sales of heroin to Butler in 1974: one in late spring or early summer of a half kilo paid for by Butler with $60,000 and an amount of mannite and quinine; a second in mid-summer of a half kilo delivered to Butler at the Bridge Apartments; and a third sale in late 1974 of a half kilo paid for in "cash and cut."

Lucas also testified to appellant Charles Cameron's association with Butler, as well as Cameron's own statements about delivering "bundles" (packages containing fifty-five bags of heroin) for Butler, later distributing them in Washington, D. C., and Miami, and meeting with a source for heroin passingly familiar to regular readers of Second Circuit opinions. ² In addition, Gewirtz testified that Pollack told him that Lucas further testified to purchases of mannite and quinine from appellant Donald Dewees and his sale to Dewees of an eighth of a kilo of heroin in 1974, as well as Dewees's complaints about needing higher quality heroin. The record gives no indication, however, that during the period of the conspiracy Dewees was a heroin dealer, ³ though he was tied to Cameron, who, immediately after the first delivery to him by Gewirtz, went to one of Dewees's bicycle stores at 125th Street and Fifth Avenue. Dewees was also linked to Butler by way of a payment book in Butler's possession bearing the name Arthur Dewees, Arthur being appellant's middle name. After his arrest and Miranda warnings Dewees commented that his arrest "must be for conspiracy because he hadn't made any moves (i. e., purchases or sales of narcotics) for a long time." And in the course of three deliveries of mannite or quinine by Gewirtz, Dewees gave him or Pollack a total of $20,400 for Pollack or Lieberman.

Cameron was a heroin dealer whose payment was guaranteed by Butler and to whom Pollack sold as a favor to Butler, thus tying Cameron to Butler during the period of the indictment. Cameron himself also stipulated that he received three boxes of mannite in 1976 intending to sell and distribute it with knowledge and intent that it would be mixed with heroin.

Appellant Patterson, who owned a variety shop at 125th Street and Fifth Avenue, ⁴ was even more closely tied to Butler. On four occasions deliveries were made to him at the Bridge Apartments garage between 178th and 179th Streets, across from the Audubon Garage where Gewirtz had previously delivered, and was subsequently to deliver, mannite for Butler. When stopped on one occasion after leaving the Bridge Apartments garage, Patterson claimed that the boxes (of mannite) in his car trunk contained popcorn. Testifying in his own defense Patterson conceded that he had known Butler and had been at Butler's New Jersey home (where various deliveries were made), though not in 1976, despite the fact that a detective observed his brown Cadillac there on October 14, 1976. Patterson also testified to being at the Butler-owned Audubon Garage (where some deliveries were made to Butler), but only to use the parking facilities.

Gibbons, who owned Joe's Barbershop and was himself a street dealer, and Leroy Perry, the "old man" who worked for Gibbons, bought large quantities of mannite and quinine from Pollack for which Gibbons was often in debt. Gibbons and Perry are tied if at all to the Butler heroin enterprise only by the following facts: on one occasion Gewirtz picked up a bag of quinine from Perry at the Eighth Avenue and 131st Street barbershop, which he delivered together with a box of mannite on an "emergency" basis (according to Pollack) to Dewees; Gibbons stated after his arrest (and Miranda warnings) that he had bought heroin from Pollack at the Audubon Garage, well uptown from the barbershop; Gibbons stipulated that he had leased the Audubon Garage in 1974 on behalf of the 264 Audubon Corporation to one Ellie Williams and one Isaac Hamilton, indicating a possible garage relationship between Gibbons and Butler. ⁵

DISCUSSION

A. Jury Instructions

The appellants object to that portion of the jury charge quoted in the margin ⁶ on the basis that it failed to restrict the conspiracy of which they were accused to a conspiracy whose object was the distribution of heroin. ⁷ Judge Mishler did tell the jury that "(t)he conspiracy charged in this indictment is a conspiracy to deal in heroin." He advised the jury that neither mannite nor quinine was a controlled substance, and that the charge was conspiracy to distribute a controlled substance or to possess with intent to distribute a controlled substance. The court also repeatedly charged, however, that "(t)he conspiracy charged in this...