U.S. v. Thompson

• Decision Date: 29 January 1996
• Docket Number: D,No. 589,589
• Citation: 76 F.3d 442
• Parties: UNITED STATES of America, Appellee, v. Everett W. THOMPSON, Jr., Defendant-Appellant. ocket 95-1048.
• Court: U.S. Court of Appeals — Second Circuit

Page 442

76 F.3d 442

UNITED STATES of America, Appellee, v. Everett W. THOMPSON, Jr., Defendant-Appellant.

No. 589, Docket 95-1048.

United States Court of Appeals,

Second Circuit.

Argued Nov. 9, 1995.

Decided Jan. 29, 1996.

Thomas M. Gannon, Department of Justice, Washington, DC (Thomas J. Maroney, United States Attorney for the Northern District of New York, Edward R. Broton, Assistant United States Attorney, Syracuse, New York, on the brief), for Appellee.

Raymond M. Schlather, Ithaca, New York (Lopinto, Schlather, Solomon & Salk, on the brief), for Defendant-Appellant.

Before: KEARSE and WINTER, Circuit Judges, and POLLACK, District Judge ^*.

KEARSE, Circuit Judge:

Defendant Everett W. Thompson, Jr., appeals from a judgment of the United States District Court for the Northern District of New York, Frederick J. Scullin, Jr., Judge, convicting him of conspiracy to distribute and to possess with intent to distribute narcotics, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1988), conspiracy to defraud the United States in connection with nonpayment of income taxes, in violation of 18 U.S.C. § 371 (1988), and witness tampering, in violation of 18 U.S.C. § 1512(b)(1) (1988), and sentencing him principally to 51 months' imprisonment to be followed by three years' supervised release. On appeal, Thompson contends chiefly that he is entitled to a new trial on the ground that jurors were allowed to question the witnesses. He also challenges the constitutionality of § 1512, the trial judge's refusal to recuse himself, the procedures used during jury selection, one aspect of the jury charge, and the calculation of his sentence under the federal Sentencing Guidelines ("Guidelines"). Finding no basis for reversal, we affirm the judgment.

I. BACKGROUND

The present prosecution focused on drug distribution activities in the area of Moravia, New York, principally from 1987 to 1993, in

                which Charles Bergerstock was the leader and Thompson was a participant.   The evidence at trial included tape recorded conversations;  drug transaction records seized from Bergerstock;  and testimony from a number of witnesses, including coconspirators Will Henry ("Will"), his brother Tim Henry ("Tim"), James Spano, and Martin Dann.   Taken in the light most favorable to the government, the evidence as to the narcotics conspiracy and Thompson's participation in it included the following
                

A. The Narcotics Distribution Conspiracy

Bergerstock, the owner of garages and residences at Stauber Road and Sayles Corners Road in or near Moravia, was a major source of supply for marijuana in the Moravia area from the late 1980s to 1993. Bergerstock obtained bulk quantities of marijuana from the southwestern United States, periodically sending Will, and on one occasion Dann, to act as courier. Bergerstock normally stored the marijuana--sometimes as much as 100 pounds--in a back room or shed in his garage, or in cars parked there, and he distributed from these locations.

Bergerstock sold marijuana to Thompson, Will, Tim, Dann, Spano, Garry Stone, Kenneth J. Alvord, and others. Bergerstock's prices ranged from $1,500 to $2,600 a pound. During the period in question, Spano and Stone jointly bought about 75 pounds per year from Bergerstock. Dann too bought large quantities from Bergerstock, generally on credit; his balance normally averaged $10,000. Will, Tim, and certain others were sellers and users of narcotics; they purchased from Bergerstock in smaller quantities.

For approximately a year and a half beginning in 1988, Will worked in Bergerstock's Stauber Road garage as a mechanic. He also helped Bergerstock package the marijuana in one-pound bags. During that period, Will observed Thompson visit about once a week. On those visits, Thompson normally arrived empty-handed, went into the shed with Bergerstock, and emerged carrying a brown paper bag or box. During the same period, Tim was a part-time mechanic at that garage and observed some of Thompson's visits to the shed and his emergence with a brown paper bag. That what Thompson took away with him on those occasions was marijuana was inferable from the facts that, inter alia, Bergerstock kept much of his marijuana stored in the shed; Will overheard Thompson discussing with Bergerstock "how many pounds" Thompson could get; on some 10 occasions Will was in the shed with Thompson and Bergerstock while marijuana was weighed by Bergerstock and evaluated by Thompson; Bergerstock usually packaged the marijuana he sold in bags of the same type that Thompson carried away with him; and on one occasion, when the door to the shed had been left open, Tim saw Bergerstock weigh and transfer marijuana into the bag that Thompson took.

In early 1990, Bergerstock moved his operation from Stauber Road to Sayles Corners Road. At the new location, Will spent less time as a mechanic and more as Bergerstock's assistant in the drug business. He frequently made trips to bring marijuana back from New Mexico; he helped weigh and package the marijuana that was brought back; he made marijuana deliveries to Bergerstock's customers; and he stored some of Bergerstock's marijuana at his home. In 1990 and 1991, Will observed Thompson visit the Sayles Corners Road garage about twice a week. On those visits, Thompson and Bergerstock would go into the back room and weigh out pounds of marijuana which Thompson purchased. Will was with them in the back room on several such occasions. Three times in 1990, Will delivered five pounds of marijuana to Thompson. On another occasion, Thompson was sent to Will's home by Bergerstock to obtain 12 pounds of the marijuana stored there.

Will also observed Thompson make payments of thousands of dollars to Bergerstock and on one occasion heard Bergerstock threaten to stop selling marijuana to Thompson unless he paid a debt of $4,000. Tim too heard discussions of debts owed to Bergerstock by Thompson ($3,500) and Dann ($8,000). Thompson was listed as a debtor many times in Bergerstock's drug transaction records.

Dann testified that on several occasions at Bergerstock's Sayles Corners Road garage from 1990 to 1992, he saw Thompson obtaining marijuana in quantities of up to two pounds. On numerous occasions, Thompson, Dann, and Bergerstock met in the back room of the garage and discussed marijuana quality, inventory level, the scheduling of new shipments, and price.

Bergerstock was apparently close-mouthed about the prices he charged various customers. Will, though often present for the weighing of the marijuana to be purchased by Thompson, normally was sent from the room before price was discussed. Will once asked Thompson how much he was paying Bergerstock for marijuana, but Thompson smiled and said nothing. On a few occasions, Dann and Thompson discussed their dealings with Bergerstock and tried to calculate which of them was paying more for the marijuana.

Thompson resold marijuana he bought from Bergerstock, and some of Thompson's customers testified at trial. Rodney Leonard testified that he had bought about 10 pounds of marijuana from Thompson during a 15-month period from late 1991 through early 1993. Leonard began by purchasing small quantities, but he later purchased one- and two-pound quantities and was aware that Thompson distributed larger quantities. Leonard once saw four pounds of marijuana in Thompson's bedroom; on another occasion, Thompson said that on the previous day he had sold 10 pounds.

Other customers of Thompson included William Wade, who testified that from 1985 to 1992 he had bought marijuana from Thompson, usually in quarter-ounce quantities, some 20 times. Jeff Dean testified that from 1990 to 1992, he had bought marijuana from Thompson on 20 to 25 occasions. He usually bought quarter-pound quantities, though six or seven times he made one-pound purchases.

B. The Present Prosecution

In the summer of 1993, when Thompson and others had become aware that a federal investigation was underway with respect to the Bergerstock narcotics operation, Thompson had conversations about the investigation with Wade, Will, Tim, Leonard, and Dann. Wade testified at trial that Thompson came to his house unannounced on the morning Wade was to testify before the grand jury. Thompson told Wade "not to say anything different that didn't take place." And though Wade had purchased marijuana from Thompson some 20 times, Thompson told him "just to tell them [Wade] purchased marijuana a couple of times from him and that was it, just don't tell them anything else other than that."

After Bergerstock was arrested, Thompson told Will that if Will did not talk about Thompson, Thompson would not talk about Will. He offered a similar agreement to Dann and told Tim that if Bergerstock's connections "stuck together" and did not "rat each other out" they would "get through this." Thompson advised Leonard not to make a deal with the prosecution. Thompson also influenced Will to sign an affidavit repudiating statements Will had previously made to law enforcement officials with regard to the scope of the drug conspiracy.

Eventually, Thompson, Bergerstock, and others were indicted. A superseding indictment handed down in February 1994 alleged that Thompson, Bergerstock, Alvord, Will, and Tim had, inter alia, conspired to distribute narcotics, in violation of 21 U.S.C. § 846 (count one), and that, with the exception of Tim, they had conspired to evade taxes on their narcotics-distribution income, in violation of 18 U.S.C. § 371 (count seven). Bergerstock, Alvord, Will, and Tim pleaded guilty to various offenses; other coconspirators pleaded guilty in related cases.

Thompson stood trial alone on the two conspiracy counts and on a third count alleging witness tampering with respect to Wade, in violation of 18 U.S.C. § 1512(b). Thompson was found guilty on all three counts and was sentenced as indicated above.

II. DISCUSSION

On appeal, Thompson contends principally that he is entitled to a new trial...