80 F.3d 688 (2nd Cir. 1996), 94-1454, United States v. Workman

Docket Nº:Dockets 94-1454, 94-1568, 94-1656 and 95-1016.
Citation:80 F.3d 688
Party Name:UNITED STATES of America, Appellee-Cross-Appellant, v. Norman WORKMAN, et al., Defendants, Donald Green, a/k/a Sly, a/k/a Stone; Clyde Thomas Brooks, a/k/a Luca, a/k/a Luca Brazzi; John Bolden, a/k/a Johnnie; Derwin Rodgers, Defendants-Appellants, Jens Jamison a/k/a
Case Date:March 27, 1996
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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80 F.3d 688 (2nd Cir. 1996)

UNITED STATES of America, Appellee-Cross-Appellant,

v.

Norman WORKMAN, et al., Defendants,

Donald Green, a/k/a Sly, a/k/a Stone; Clyde Thomas Brooks,

a/k/a Luca, a/k/a Luca Brazzi; John Bolden, a/k/a

Johnnie; Derwin Rodgers, Defendants-Appellants,

Jens Jamison a/k/a "Chauncey," Defendant-Appellant-Cross-Appellee.

Nos. 144, 231, 388, 537,

Dockets 94-1454, 94-1568, 94-1656 and 95-1016.

United States Court of Appeals, Second Circuit

March 27, 1996

        Argued Sept. 5, 1995.

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        Terry Granger, Buffalo, N.Y. (Granger & Granger, on the brief), for Defendant-Appellant Donald Green.

        E. Carey Cantwell, Buffalo, N.Y., for Defendant-Appellant Derwin Rodgers.

        David A. Lewis, New York City (Legal Aid Society, Federal Defender Division Appeals Bureau), for Defendant-Appellant-Cross-Appellee Jens Jamison.

        William J. Hochul, Jr., Assistant United States Attorney, Western District of New York, Buffalo, N.Y. (Patrick H. NeMoyer, United States Attorney for the Western District of New York, Buffalo, N.Y., on the brief), for Appellee-Cross-Appellant United States of America.

        Before: FEINBERG, KEARSE, and LEVAL, Circuit Judges.

        LEVAL, Circuit Judge:

        Donald Green, Jens Jamison, and Derwin Rodgers appeal from their convictions after a jury trial before the United States District Court for the Western District of New York (John T. Curtin, Judge ), finding them guilty of various charges relating to their involvement in a sizeable narcotics trafficking enterprise known as the "L.A. Boys."

        The defendants raise three principal arguments on appeal: (1) that the trial court erred by admitting into evidence tape recordings, made by prison officials acting without court-ordered authorization, of Green's incriminating prison telephone conversations; (2) that the jury instructions were erroneous as to the elements of the charged RICO violation with respect to Jamison and Rodgers, in that they were not in accordance with the requirements of Reves v. Ernst & Young, 507 U.S. 170, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993); and (3) that Jamison's lawyer rendered ineffective assistance of counsel at sentencing. In turn, the government cross-appeals the trial judge's sentencing decision to grant Jamison a two-level downward departure for rehabilitation. For the reasons stated below, we affirm.

Background

        The L.A. Boys was a major narcotics trafficking enterprise that operated in Buffalo,

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New York. The enterprise was formed in the late 1980s, and continued functioning until approximately July of 1992. In support of the conspiracy's drug-related activities, members committed various acts of violence, including murders, kidnappings, and drive-by shootings.

        Defendants Green, Jamison, Rodgers, and twenty-two other members of the enterprise were ultimately charged with racketeering, racketeering conspiracy, and narcotics conspiracy. See 18 U.S.C. § 1962(c) & (d); 21 U.S.C. § 846. The indictment also charged Green and Rodgers with illegally using the telephone to facilitate narcotics transactions, see 21 U.S.C. § 843(b), and Green with narcotics distribution and obstruction of justice. See 21 U.S.C. § 841; 18 U.S.C. § 1512(b). 1

        The government's evidence at trial showed that Green was the leader of the L.A. Boys, and that he had orchestrated the enterprise's activities. The government presented evidence that he continued to play a significant role in the conspiracy, even though in 1989 he began to serve a murder sentence at the Shawangunk Correctional Facility, a New York state prison. Important evidence at trial came from recordings made by prison officials of a series of incriminating conversations that Green had on the Shawangunk prison telephone.

        As for Jamison, the government presented evidence that he had purchased and sold narcotics for the organization, providing drugs to street-level dealers for sale on consignment, and later picking up the proceeds. In addition, the evidence showed that he had participated in the December 1989 murder of James Bolden, and the attempted murder of James Wright in August 1989. The government's evidence against Rodgers indicated that he had principally served as a street-level cocaine dealer, and that he had participated in conversations (one held at his home) during which members of the L.A. Boys conspired to murder Darryl "Reese" Johnson, a former leader of the organization.

        The jury found Rodgers and Jamison guilty on all counts. Green was found guilty on all counts except an obstruction of justice charge. All three defendants appeal.

Discussion

       I. Admission of the Prison Recordings

        Prior to trial, defendants moved to suppress recordings made by prison officials of Green's incriminating conversations on the prison telephone. Defendants contended these recordings were made in violation of Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-22 ("Title III"), the Fourth Amendment, and the New York State Constitution.

        At a hearing held before the start of the trial, Lieutenant Tasker--the afternoon Watch Commander at the Shawangunk prison--testified that all of Green's telephone calls were recorded on cassette from the start of his incarceration, and sent to law enforcement officials for use in an ongoing criminal investigation. Between March 1991 and July 1992, prison officials recorded approximately 1,000 separate conversations. The district court denied the motion to suppress, and numerous recordings of Green's prison conversations were received at trial.

        A. Title III

        Title III generally forbids the intentional interception of wire communications, such as telephone calls, when done without court-ordered authorization. 18 U.S.C. §§ 2510-2522. An unlawfully intercepted telephone call may not be offered as evidence in any trial. See 18 U.S.C. § 2515 ("Whenever any wire or oral communication has been intercepted, no part of the contents of such communication ... may be received in evidence in any trial ... if the disclosure of that information would be in violation of this chapter.").

        Title III allows for certain exceptions, however. Among them, the statute provides that "[i]t shall not be unlawful ... for a person acting under color of law to intercept a wire, oral, or electronic communication, where ... one of the parties to the communication has given prior consent to

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such interception." 18 U.S.C. § 2511(2)(c). Consent may be either express or implied. United States v. Amen, 831 F.2d 373, 378 (2d Cir.1987), cert. denied, 485 U.S. 1021, 108 S.Ct. 1573, 99 L.Ed.2d 889 (1988). We have long recognized that, under certain circumstances, prisoners are deemed to have given consent for purposes of Title III to the interception of their calls on institutional telephones. See United States v. Willoughby, 860 F.2d 15, 19-20 (2d Cir.1988), cert. denied, 488 U.S. 1033, 109 S.Ct. 846, 102 L.Ed.2d 978 (1989); Amen, 831 F.2d at 378-79.

        In Amen, we held that inmates impliedly consent to have their telephone conversations monitored where they have received notice of the surveillance and nevertheless use the prison telephones. 831 F.2d at 378-79. The notice in that case consisted of federal prison regulations clearly indicating that inmate telephone calls were subject to monitoring, an orientation lecture in which the monitoring and taping system was discussed, an informational handbook received by every inmate describing the system, and signs near the telephones notifying inmates of the monitoring. Id. Similarly, we held in Willoughby that a combination of notification at an orientation lecture and signs near the telephones explaining the policy was sufficient to justify the inference of consent by prisoners who used the phones. Willoughby, 860 F.2d at 20. 2

        Although Green was given somewhat less notice than the inmates in Willoughby and Amen, he had sufficient warning of the monitoring program that his use of the telephones implied consent to the surveillance. A sign, written in English and Spanish, notifying inmates of the monitoring program was placed near each telephone in the prison. The warning read:

        NOTICE

ALL INMATE TELEPHONE CONVERSATIONS ARE SUBJECT TO ELECTRONIC MONITORING BY DEPARTMENTAL PERSONNEL.

        Approximately one week after arriving at the prison, Green was provided with an orientation handbook. This manual provided further notice of the telephone monitoring program. Green signed a form stating that he had received the handbook. Finally, New York State regulations then in force provided public notice that prisoner "calls are subject to monitoring and may be tape recorded." N.Y.Comp.Codes R. & Regs. tit. 7, at § 723.5(a)(1) (1986) (policy for inmate self-dialed calls); see also id. at § 723.4 (parallel policy for staff-assisted calls). Furthermore, Green's statements on the recordings show that he was successfully informed by the prison's notification program. On many of the tapes, Green warned his interlocutors that the call might be monitored, and he sometimes used coded language in an apparent effort to mislead authorities who might be listening.

        Green argues that the notice he received was insufficient. In particular, he claims that--unlike the federal prison inmates in Willoughby and Amen--he was told of New York's prison telephone monitoring program, but never expressly informed either that his use of the telephones would constitute consent to the surveillance, or that the monitoring could include recording of his conversations.

        Green's argument misunderstands...

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