U.S. v. Lawson

• Decision Date: 31 March 1975
• Docket Number: No. 74-1134,74-1134
• Citation: 507 F.2d 433
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George LAWSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 433

507 F.2d 433

UNITED STATES of America, Plaintiff-Appellee, v. George LAWSON, Defendant-Appellant.

No. 74-1134.

United States Court of Appeals, Seventh Circuit.

Argued June 3, 1974.

Decided Nov. 26, 1974, Rehearing Denied Dec. 19, 1974,

Certiorari Denied March31, 1975, See 95 S.Ct. 1446.

Carl M. Walsh, Chicago, Ill., for defendant-appellant.

James R. Thompson, U.S. Atty., Gary L. Starkman and Walter Jones, Jr., Asst. U.S. Attys., Chicago, Ill., for plaintiff-appellee.

Before CLARK, Associate Justice (Retired), ^* and PELL and SPRECHER, Circuit Judges.

PELL, Circuit Judge.

The defendant George Lawson was convicted by a jury of importing and conspiring to import cocaine into the United States, in violation of 18 U.S.C. 2, and 21 U.S.C. 952(a) and 963. Lawson raises a number of issues on appeal, including: (1) whether the defendant was prejudiced by a display of cocaine which was not admitted into evidence; (2) whether the indictment was invalid because the Grand Jury which returned the indictment was the third Special Grand Jury in existence at that time in the Northern District of Illinois; (3) whether the evidence was sufficient to prove Lawson guilty beyond a reasonable doubt; (4) whether the district court erred in instructing the jury; (5) whether there was a lack of jurisdiction and venue in the Northern District of Illinois; (6) whether the defendant was prejudiced by certain statements of witnesses and the prosecutor; and (7) whether there was a variance between the evidence and the indictment.

The evidence, taken in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), established the following significant conduct. ¹ In April 1971, Richard Fox, Randy Fine, and Larry Zaretsky traveled to Jamaica. While there, they met George Lawson who was living in Jamaica. During a visit to Lawson's home, the defendant stated that he had a supply of cocaine for sale and asked if Fox was interested in purchasing any. After discussing Lawson's offer with Zaretsky and John DeCarolis, Fox told Lawson he was interested in buying the cocaine but that it would have to be delivered to Chicago and payment would not be made until it was delivered. Lawson subsequently informed Fox that the deal was acceptable to him and that Lawson's girl friend, Myrna Pierce, would personally deliver the cocaine to Chicago that weekend. In return for the cocaine, Lawson was to receive $4,500 a pound plus a percentage of the profits.

Before leaving Jamaica, Fox again visited Lawson's home, where he saw Lawson packing a white powder into a cosmetic bag. Lawson gave this bag and two clear plastic bags, also containing white powder, to Myrna Pierce and instructed her to take them to Chicago.

Fox then flew to chicago. Zaretsky flew to Miami, Florida, picked up Fox's car, and drove it to Chicago. Myrna Pierce flew to Chicago by way of Baltimore and, upon arriving in Chicago, she telephoned Randy Fine. Fine, accompanied by another man, picked up the packages from Pierce's hotel room. The following day, Fox and Zaretsky gave Pierce an envelope containing $5,000. Pierce then flew back to Jamaica and gave the envelope to Lawson.

After Pierce had been paid, Fox, Zaretsky, DeCarolis, and David Bennett met at an apartment in Chicago. At that time, the powder from the cosmetic bag was mixed with lactose and placed in one-ounce bottles and one-pound containers.

A few days thereafter, Zaretsky sold a one-ounce bottle of white powder, which he had obtained from Fox, to Special Agent Aldo Aurilio for $1,000. The following day, Zaretsky sold Aurilio another larger package for $11,000.

Approximately two weeks after these sales to Aurilio, Fox withdrew $10,000 from a bank and gave it to David Bennett with instructions to deliver it to Lawson. Bennett and his girl friend Linda Vasquez then flew to Jamaica. Lawson told Myrna Pierce that 'Rick had sent (Bennett and Vasquez) down with the balance of the money.'

I

The evidentiary part of Lawson's trial lasted less than two days. During the morning of the second day of the trial, two Government witnesses, Special Agent Aldo Aurilio and Mark Cunningham, a Government chemist, testified. In substance, Aurilio testified that on two separate occasions, Zaretsky sold him packages of white powder which were identified as Government Group Exhibits 1 and 2. Cunningham was qualified as an expert witness and testified that the powder contained in the exhibits was cocaine. During Aurilio's and Cunningham's testimony, the exhibits, purportedly containing more than a pound of cocaine, were on the prosecution's table in front of the jury.

At the conclusion of this testimony, the district court sustained the defendant's objection to the admission of the exhibits on the ground that the Government had failed to connect the exhibits with Lawson. The district judge also struck the testimony of both Aurilio and Cunningham and instructed the jury to disregard that testimony and the exhibits. The court, however, denied Lawson's motion for a mistrial. The defendant contends that the district court erred in denying this motion for a mistrial since Lawson was prejudiced by the testimony of Aurilio and Cunningham and by having the exhibits of cocaine before the jury.

As this court has noted, there are situations in which the display of evidence which is later ruled inadmissible constitutes reversible error. United States v. Heft, 413 F.2d 1027 (7th Cir. 1969); United States v. Reid, 410 F.2d 1223 (7th Cir. 1969). However, we have also recognized that not all such displays require reversal. United States v. Holmes, 452 F.2d 249 (7th Cir. 1971), cert. denied, 405 U.S. 1016, 92 S.Ct. 1291, 31 L.Ed.2d 479 (1972); United States v. Catalano alano, 450 F.2d 985 (7th Cir. 1971), cert. denied, 405 U.S. 928, 92 S.Ct. 980, 30 L.Ed.2d 802 (1972).

In Catalano, where the defendants were charged with unlawful possession of property (television sets) stolen in interstate commerce with knowledge that the property was stolen, Government witnesses identified two guns found at or near the scene of a gunfight which had occurred between police and the defendants at the time of the defendants' arrest. The trial court, finding that neither gun had been connected to any of the defendants, refused to admit the guns into evidence and struck all testimony with respect to the guns. The trial court, however, denied the defendants' motion for a mistrial. This court held that the district court's cautionary instruction was adequate to protect the defendants from any possible prejudice and that the court properly denied the motion for a mistrial. In particular, this court noted that the defendants had failed to object to the initial display of the guns to the jury and that, even if a timely objection had been made, the defendants were not prejudiced by the display of the guns since there had been other testimony concerning the fact that a gunfight had taken place.

As in Catalano, the defendant in the present case did not object to the initial display of the cocaine. ² Moreover, the testimony of Aurilio was merely cumulative in that Zaretsky had testified about the sales of packages to Aurilio. The defendant did not dispute that these sales had taken place. In addition, the jury had heard extensive and undisputed testimony regarding lawson's role in initiating the sale to Fox and in directing Myrna Pierce to bring the substance to Chicago. We also note that the district judge admonished the jury during the trial to disregard the exhibits and the testimony of Aurilio and Cunningham. In its final instructions, the court again told the jury to consider only properly admitted evidence in reaching their verdict. See United States v. Catalano, supra; United States v. Holmes, supra. Finally, we note that there is no indication that the Government was acting in bad faith in presenting the testimony of Aurilio and Cunningham or in seeking to have the exhibits admitted into evidence. United States v. Lyon, 397 F.2d 505, 512 (7th Cir. 1968), cert. denied, 393 U.S. 846, 89 S.Ct. 131, 21 L.Ed.2d 117.

In the context of the entire trial, we conclude that reversible error was avoided by the district court's action in striking the testimony and instructing the jury to disregard both the testimony and the exhibits. ³ United States v. Holmes, supra.

Our decision is not contrary to this court's opinions in United States v. Heft, 413 F.2d 1027 (7th Cir. 1969), United States v. Reid, 410 F.2d 1223 (7th Cir. 1969), and United States v. Kwitek, 433 F.2d 18 (7th Cir. 1970). As we pointed out in Catalano, in all three of those cases, the prejudicial evidence was found in the possession of the defendant.

II

The defendant next contends that the indictment against him was invalid because the Special September 1972 Grand Jury, which returned the indictment, was the third such special grand jury then in existence in the Northern District of Illinois. ⁴ This argument is without merit. As this court has recently noted:

'The legislative history of the Organized Crime Control Act of 1970 indicates that the Special Grand Jury was created as an instrument to investigate organized crime in areas where such criminal activity was evident. it would thwart the purpose of the Act to limit to two the number of Special Grand Juries in a district when in fact four or five were necessary for adequate investigation of organized crime. Korman v. United States, 486 F.2d 926, 934 (7th Cir. 1973).

Lawson argues that the statement in Korman is dicta and further that Korman involved an attack by a witness who would have had no standing to attack the grand jury, and that, therefore, we should not follow the explicit language quoted above. While it may be, as Lawson contends, that the special grand jury in Korman was in fact the second special grand jury impaneled in the district and therefore clearly permissible by the terms of...