U.S. v. Gibbons

• Decision Date: 25 June 1979
• Docket Number: 250,Nos. 117,D,s. 117
• Citation: 602 F.2d 1044
• Parties: 4 Fed. R. Evid. Serv. 999 UNITED STATES of America, Appellee, v. Arthur GIBBONS, a/k/a "Joe Gibbons," a/k/a "Joe the Barber" and Leroy Perry, Appellants. ockets 78-1189, 78-1196.
• Court: U.S. Court of Appeals — Second Circuit

Page 1044

602 F.2d 1044

4 Fed. R. Evid. Serv. 999

UNITED STATES of America, Appellee, v. Arthur GIBBONS, a/k/a "Joe Gibbons," a/k/a "Joe the Barber" and Leroy Perry, Appellants.

Nos. 117, 250, Dockets 78-1189, 78-1196.

United States Court of Appeals, Second Circuit.

Argued Sept. 11, 1978.

Decided June 25, 1979.

Lawrence K. Feitell, New York City, for appellant Gibbons.

Lawrence W. Kessler, Hempstead, N. Y., for appellant Perry.

Jane W. Parver, Asst. U. S. Atty., S. D. N. Y., New York City (Robert B. Fiske, Jr., U. S. Atty., and Howard W. Goldstein, Asst. U. S. Atty., S. D. N. Y., New York City, of counsel), for appellee.

Before OAKES, GURFEIN and MESKILL, Circuit Judges.

GURFEIN, Circuit Judge:

Arthur Gibbons and Leroy Perry appeal from judgments of conviction entered in the District Court for the Southern District of New York (Hon. Robert L. Carter, Judge) after a jury verdict of guilty. The indictment charged appellants and James Earl Cox and Sidney Williams with conspiring to distribute and possess with intent to distribute unknown quantities of heroin by means of actual distributions of heroin and by purchases of mannite for use in cutting or diluting heroin, in violation of 21 U.S.C. § 846. ¹

Facts

From 1974, Sidney Williams and one Leroy Roper began a partnership selling heroin. The heroin was marketed in glassine bags referred to as "quarters," each containing 1/20Th to 1/25Th of an ounce of "street" heroin. At first, Williams and Roper were supplied by a John Bazemore, but after 1976, when Bazemore died, deliveries were made by James Earl Cox. Both Bazemore and Cox were deliverymen: as early as 1976, Roper was told by Bazemore that the source of supply was Arthur Gibbons, who owned a building at 2459 Eighth Avenue which contained a barbershop and a backroom "social club." And when Bazemore died in the fall of 1976, Williams got in touch with Gibbons and arranged for Cox to resume heroin deliveries.

Roper was arrested in March 1977, at which time he agreed to cooperate with agents of the New York Drug Enforcement Task Force. His first effort on the Task Force's behalf was to arrange a meeting between Williams and an undercover detective which culminated in the sale to the detective by Williams of 25 quarters of heroin originally supplied by Gibbons. Throughout the spring and summer Roper kept drug enforcement agents informed as to transfers of heroin from Cox to Williams. He also recorded telephone conversations with Cox, meetings with Cox or Williams, and meetings with Gibbons; these last recordings turned out to be unintelligible. By means of these tapes, the government agents learned of price disputes between the street distributors and their supplier. Cox and Gibbons complained that Williams and Roper were in arrears in their payments for past deliveries, and Williams and Roper asserted that they had been cheated by having been charged a higher "wholesale" price for heroin than were other street merchants.

During this period, Roper informed Cox and Williams that he knew someone who could provide material used for diluting or "cutting" wholesale level heroin to the less pure "street grade." This provider was actually an undercover agent. Cox originally showed some interest because, as he put it, the "old man" was short of "cut," having sold some on the side. Testimony at trial indicated that the "old man" was a nickname for Leroy Perry, a superintendent at Gibbons' building at 2459 Eighth Avenue.

Roper's first effort to have an undercover agent sell Cox mannite and quinine two cutting materials did not bear fruit. But toward the end of August, Cox informed Roper that Gibbons was interested in procuring a quantity of mannite. Another undercover agent was provided with mannite itself not an illicit substance, but an infant laxative and a deal was concluded for the sale of five cases. On August 25 Roper and the agent arrived at the social club in Gibbons' building. Cox greeted the agent at the door and the latter left briefly and returned with six boxes of mannite. Perry stood at the bar in the club counting money. Perry asked Cox, "Should be 2700, right?" and handed Cox the cash. Cox and the agent then discussed the disposition of one of the cases of mannite that was extra, and the agent decided to remove it rather than to leave it on consignment. Perry chimed in: "Yes, don't leave nothing here, take it with you."

Roper and the agent departed, as did Cox a short time later. Perry then left but returned shortly. Perry came out of the barbershop with a white plastic bag large enough to have contained one of the boxes of mannite. He returned to the shop, which was then entered by Gibbons and another man. About one hour later Gibbons left and then Perry left.

Several days after the delivery, Roper met with Gibbons in the barbershop. Gibbons informed Roper that he had purchased the extra mannite because he was expecting a shipment of heroin but that the heroin had not arrived. He told Roper that further orders of mannite would depend upon the arrival of the heroin. In mid-September, some two weeks later, Roper spoke with Perry at the barbershop and was told that the five cases of mannite were still on hand.

Gibbons, Perry, Cox and Williams were arrested on January 18 and 19, 1978. When Perry was arrested, 3/10 of a gram of cocaine was found on his person, wrapped in a dollar bill. Shortly after his arrest, Gibbons confessed to involvement in narcotics trafficking and recounted distribution procedures to the police. At trial, Gibbons did not testify nor did he present evidence. Perry admitted giving Cox money in the "social hall" on August 25, 1977, but denied knowing what mannite is. He also denied seeing Gibbons on August 25. Perry conceded that he vaguely understood what the term "cut" meant, but denied that he knew how cocaine or heroin is cut.

Within days after the commencement of trial, Williams and Cox pleaded guilty and dropped out of the proceedings.

I

Gibbons contends: (1) that the District Judge's charge on conspiracy was erroneous; (2) that the court's instructions to the jury regarding the codefendants who pleaded guilty during trial were erroneous; (3) that Judge Carter showed racial bias in sentencing against appellant, a Negro; and (4) that the Judge presided over the trial in a manner unfair to appellant Gibbons.

Perry contends: (1) that the Judge improperly admitted prejudicial irrelevant evidence of a subsequent similar act, and (2) that the appellants' statutory right to exercise peremptory challenges was improperly curtailed by depriving appellants of essential information about prospective jurors.

We find all these contentions without merit and affirm both convictions.

II

Gibbons attacks a portion of the charge as prejudicial error. The sentence challenged reads:

Proof concerning the accomplishment of the objects of a conspiracy may be the most persuasive evidence of the existence of the conspiracy itself: Success of the venture, if you believe that it was successful, may be the best proof of the existence of a conspiracy.

Counsel timely objected on the ground that this statement required the addition of a converse statement "that proof of the substantive crime does not require a conclusion that a conspiracy existed. . . ." The Judge refused to amend his charge, which we note is a charge commonly used. Actually the Judge simply charged that success of the venture "may be" the best proof of the existence of the conspiracy, which, indeed, it may be. He also charged, conversely, that "there is no need to prove that the substantive crime . . . has been committed." Reading the charge as a whole, See Cupp v. Naughten, 414 U.S. 141, 93 S.Ct. 1926, 36 L.Ed.2d 408 (1973); United States v. Nemes, 555 F.2d 51, 52 (2d Cir. 1977), we note that the Judge charged that, in order to convict, the jury had to find that there was an agreement, the purpose of which was to distribute or possess with intent to distribute Schedule I controlled substances, that the defendant knowingly and wilfully became a member of the conspiracy and that one of the conspirators committed an overt act. He charged particularly that "mere similarity of conduct" or discussion of "common aims" does not establish the existence of the conspiracy. He even charged that "mere knowledge or approval of the conspiratorial acts . . . or mere willing participation in the acts with the alleged co-conspirators, knowing in a general way that their intention was to break the law" is not enough.

We are convinced that the judge made it abundantly clear that success by one conspirator in selling narcotics to a police detective was not enough to permit the jury to find a codefendant who did not participate in the sale guilty of conspiracy Without more. By clearly charging the elements required to convict for the crime of conspiracy, the court dispelled any such erroneous view. Circumstantial evidence of criminal acts may, of course, be used inferentially to prove the existence of the conspiracy. United States v. Sperling, 506 F.2d 1323, 1341-42 (2d Cir. 1974), Cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439 (1975); See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Turcotte, 515 F.2d 145, 150 (2d Cir.), Cert. denied, 423 U.S. 1032, 96 S.Ct. 564, 46 L.Ed.2d 406 (1975).

III

The indictment named four defendants, all of whom appeared for trial. On the second day of trial, Williams pleaded guilty and the court advised the jury that he was no longer a part of the proceedings and that they were not to speculate on why he was no longer present. Later, Cox pleaded guilty and the court made the same statement to the jury. These statements are not challenged.

Unfortunately, the Judge told counsel just before the summations: "I think that I am obligated to tell the jury that they pleaded guilty and I am going to do that." Counsel promptly objected.

Later the Judge...