U.S. v. Bloom

• Decision Date: 13 September 1976
• Docket Number: No. 75-3558,75-3558
• Citation: 538 F.2d 704
• Parties: 2 Fed. R. Evid. Serv. 226 UNITED STATES of America, Plaintiff-Appellee, v. Andrew B. BLOOM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 704

538 F.2d 704

2 Fed. R. Evid. Serv. 226

UNITED STATES of America, Plaintiff-Appellee, v. Andrew B. BLOOM, Defendant-Appellant.

No. 75-3558.

United States Court of Appeals, Fifth Circuit Sept. 13, 1976.

Rehearing Denied Oct. 15, 1976.

Frank Maloney, Kenneth E. Houp, Jr., Austin Tex., for defendant-appellant.

Edward B. McDonough, Jr., U.S. Atty., James R. Gough, George A. Kelt, Jr., Frederic Bennett, William L. Bowers, Jr., Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before TUTTLE, AINSWORTH and CLARK, Circuit Judges.

AINSWORTH, Circuit Judge:

The appellant, Andrew B. Bloom was convicted by a jury of possessing with intent to distribute and with distributing heroin on three separate occasions, in violation of 21 U.S.C. Sec. 841(a)(1). Bloom was sentenced to fifteen years' imprisonment, to be followed by a special parole term of five years, and was fined $15,000. His appeal rests on claims (1) that several of the trial court's rulings and instructions with regard to evidentiary matters were erroneous; (2) that the court improperly refused to hold an evidentiary hearing to determine whether the Government's evidence was tainted by illegal wiretap activity; and (3) that the court erred in failing to dismiss his indictment for noncompliance with the maximum time limits established by the applicable plan promulgated under Rule 50(b) of the Federal Rules of Criminal Procedure for achieving prompt disposition of criminal cases. Finding these contentions to be without merit, we affirm the conviction.

I. The Facts

The Government's case rested principally on the testimony of Vernon Oakum, an agent of the Drug Enforcement Administration, who contacted Bloom on numerous occasions in an undercover capacity while attempting to arrange the purchase of a two-pound quantity of heroin. According to Oakum's testimony, this large transaction was never consummated, but in the course of negotiations, three deliveries of smaller quantities of heroin were made. The first "buy" occurred after Oakum as introduced by an informer named Robert Durst to William Hooker Davis, ¹ who in turn introduced Oakum to Bloom. Thereafter, Oakum arranged to meet the appellant at a liquor store in Houston, Texas, on January 20, 1972, where he purchased two ounces of what turned out to be low grade heroin for $1,400. Oakum subsequently complained that the heroin involved was not clearly as pure as it was represented to be, and was assured by Bloom that the quality of heroin in future dealings would be much better. Bloom and Oakum next met three weeks later at a Houston Holiday Inn, where Bloom provided Oakum with two heroin samples which were to be tested for quality, thereby effecting the second delivery. Finally, after numerous conversations and repeated delays resulting from difficulties Bloom encountered in arranging a new "connection," a meeting was arranged involving Bloom, Oakum, and a second undercover agent, H. T. Autry, at which thirty-two ounces of heroin were to be delivered. At the meeting, which occurred at Andrau Airport near Houston on March 24, 1972, Bloom claimed that he still did not have the thirty-two ounces, but gave Oakum a small representative sample, thus completing the third transaction. Subsequent phone calls attempting to work out delivery of the two-pound quantity ensued, but negotiations eventually broke off and the larger transaction never came to fruition.

No substantive evidence tending to rebut the testimony of Oakum and other government witnesses with regard to these indictments was introduced by the defense. Rather, defense efforts were aimed primarily at impugning the Government's evidence through cross-examination. In addition, Robert Durst was called in an apparent attempt to establish an entrapment defense, but this line of questioning was properly ruled irrelevant when it became apparent that a small quantity of heroin purportedly in the possession of Durst during the period of the investigation could not be linked to the transactions between Oakum and Bloom. Aside from Durst, no one was called to testify on Bloom's behalf.

II. The Evidentiary Rulings

During the direct examination of agents Oakum and Autry, each was asked to describe the particular circumstances surrounding the negotiations and transactions in which he was involved. In the course of doing so, each mentioned that the discussions involved cocaine as well as heroin. Oakum's testimony, which was more extensive because of his deeper involvement in the investigation, also revealed that Bloom was engaged in procuring and marketing marijuana and had considerable prior experience in securing Mexican heroin for prospective buyers. Since Bloom's indictment charged him only with heroin violations, his counsel objected to admission of the references to prior trafficking in heroin and to dealings in other drugs each time such matters were mentioned.

The numerous purportedly erroneous evidentiary rulings and jury instructions which ensured fall into four categories: (1) rulings which simply admitted testimony concerning illegal conduct not charged in the indictment; (2) rulings which allowed the jury to consider such evidence subject to appropriate limiting instructions; (3) incidents where such evidence was introduced, but the jury was instructed to disregard it; and finally, (4) instructions which allegedly permitted the jury to draw improper inferences concerning the defendant's propensity to commit the crimes charged from the extrinsic evidence.

Rulings in the first category related to agent Oakum's testimony concerning discussions with Bloom after the first transaction. According to that testimony, Bloom had assured Oakum that he could supply higher grade heroin in the future, and that this would be secured from some unnamed Mexicans with whom he had been doing business for almost a year. Oakum also testified that Bloom mentioned he had received complaints from several of his customers about the quality of his heroin. Rulings and instructions in the remaining categories related to testimony from the two agents indicating that Bloom had suggested possible cocaine and marijuana dealings in the course of negotiating the heroin transactions. Typical of testimony in the second category is an exchange in which the Government was permitted to ask Oakum whether drugs other than heroin were mentioned on a specific occasion. After Oakum responded in the affirmative and recounted a conversation in which Bloom had alluded to marijuana and a new cocaine connection, the judge instructed the jury as follows:

Mr. Oakum is telling us that the defendant made statements to him about the defendant's dealings in marijuana or cocaine. You will bear in mind the defendant is not charged with dealing in marijuana or cocaine. He is charged only with the several counts in the indictment that we read to you, which deal specifically with heroin transactions on given dates and times and places.

I am permitting this testimony to come in with the thought that it may tend to show, if you accept the testimony of this witness, a willingness of the defendant to deal in drugs generally, that it may lend support to the testimony of this witness that the defendant in fact dealt with heroin, to show that at the same time and during the same course of events, he either had or was willing to deal in these other drugs. You will please not hold against him the fact that he was dealing in other drugs, if you should so fine [sic], he is not charged with that. It is simply admitted as tending to clear up or elucidate the specific charges that were read to you and with which he is on trial here today.

Most of the other incidents fall into the third category, in which the court sustained defense objections to the mention of other drugs and issued prompt curative instructions such as the following:

Ladies and Gentlemen, this witness is telling us as to a conversation he had with the defendant in which Mr.Oakum tells us the defendant spoke of purchasing cocain [sic], marijuana, I believe, and possibly other narcotics other than heroin, and heroin is concerned with the counts in this indictment. I will ask you not to consider the admission of the testimony about dealing in other narcotics, if in fact he did make such an admission.

The fourth category relates mainly to a final instruction given by the trial-judge just before the jury retired to consider its verdict:

Counsel has asked that I instruct you again at this time essentially as I did earlier, you remember that there were some references early in the testimony to a discussion or maybe more than one discussion between the Government agent and the defendant about the possible purchase and sale of marijuana and cocaine as well as heroin. I told you at that time that the defendant was not charged with any offense concerning marijuana or cocaine. You would consider that testimony, if at all, only if it caused you to believe that such a person was more inclined to deal in heroin. If it had that effect, if you want to give it that effect, you may consider it, but only for that purpose and that alone.

Bear in mind he is not charged with marijuana offenses. He is not charged with cocaine offenses. And the testimony as to a discussion on those two substances, the evidence thereof will only be for the very limited purpose, if any, if you give it that weight, I should say, that such a person would also be inclined to deal in heroin.

In analyzing the propriety of the trial judge's actions in each of these categories, it should be noted at the outset that the evidence admitted formed an integral and natural part of the agents' accounts of the circumstances surrounding the offenses for which Bloom was indicted. As in United States v. Nunez, 5 Cir.,1967, 370 F.2d 538, 539, where we affirmed a conviction for possession of a sawed-off shotgun...