U.S. v. McGrath, Nos. 1181

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtBefore MANSFIELD, MULLIGAN and TIMBERS; TIMBERS; After a four week jury trial in the Southern District of New York, Henry F. Werker
Citation613 F.2d 361
Parties5 Fed. R. Evid. Serv. 107 UNITED STATES of America, Appellee, v. James McGRATH, Sylvester Scigowski, Scott Cooper and Bruce Buckle, Appellants. to 1184, Dockets 79-1103, 79-1105, 79-1111 and 79-1116.
Decision Date10 December 1979
Docket NumberNos. 1181

Page 361

613 F.2d 361
5 Fed. R. Evid. Serv. 107
UNITED STATES of America, Appellee,
v.
James McGRATH, Sylvester Scigowski, Scott Cooper and Bruce
Buckle, Appellants.
Nos. 1181 to 1184, Dockets 79-1103, 79-1105, 79-1111 and 79-1116.
United States Court of Appeals,
Second Circuit.
Argued June 14, 1979.
Decided Dec. 10, 1979.

Page 362

Paul Casteleiro, New York City (Michael Kennedy, New York City, on the brief), for appellant McGrath.

Mark Lemle Amsterdam, New York City, for appellant Scigowski.

Page 363

Stanley L. Siegel, New York City (Norman T. Corenthal, New York City, on the brief), for appellant Cooper.

Richard W. Levitt, New York City (Gerald B. Lefcourt, New York City, on the brief), for appellant Buckle.

Kenneth V. Handal, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., and David C. Patterson, Asst. U. S. Atty., New York City, on the brief), for appellee.

Before MANSFIELD, MULLIGAN and TIMBERS, Circuit Judges.

TIMBERS, Circuit Judge:

After a four week jury trial in the Southern District of New York, Henry F. Werker, District Judge, appellants Scigowski, McGrath, Cooper and Buckle were convicted of conspiring to possess and to distribute large quantities of marijuana during the four year period between June 8, 1974 and June 15, 1978. The latter three appellants also were convicted of substantive offenses of possession with intent to distribute marijuana.

Of the numerous claims of error raised on appeal, we find the following to be the only ones which warrant attention in this opinion:

(1) Whether the district court properly denied motions to suppress evidence seized without a warrant from a van and from a briefcase.

(2) Whether the indictment and trial were timely under the Speedy Trial Act.

(3) Whether the evidence was sufficient to establish a single conspiracy and to connect appellants thereto.

(4) Whether a notebook seized from a co-conspirator was properly admitted in evidence.

Other subordinate claims of error have been raised.

We have carefully considered all claims of error raised by all appellants and we find no merit in any of them.

We affirm.

I.

During the four year period from June 8, 1974 to June 15, 1978, McGrath was a large-scale marijuana supplier. With help from friends, including the other appellants, he engaged in a substantial sale and distribution operation. Cooper, together with co-conspirators Schaller and Felle, were distributors for McGrath. Scigowski was a distributee who resold the marijuana he received.

Prior to January 1978, most of the group's dealings in marijuana involved quantities ranging from 10 to 135 pounds. At one point Cooper's sales ran as high as 800 pounds. The group also engaged in some cocaine transactions.

In January 1978, McGrath received some four tons, or 8,000 pounds, of marijuana. On January 26, McGrath had sent Felle a shipment of 3,400 pounds of marijuana so that the ring could distribute from both the Schaller farmhouse in Kingston, New York, and from a New York City location. Felle called on Cooper and Scigowski for help in finding a place to store the 1.7 tons of contraband. Cooper came forward with a friend who agreed to store the marijuana in a rented warehouse. When McGrath and Buckle arrived with the shipment, it was taken first to a warehouse in Queens and then to another in Brooklyn. At the latter, after being sorted and logged, it was left in storage with a "distributing company" listed as bailor. Cooper and Felle distributed some of the warehouse marijuana on a consignment basis. Felle also delivered bales from Brooklyn directly to Cooper and Scigowski at their homes in the Soho section of New York City.

It was during one such delivery that law enforcement agents began to close in. On January 30, 1978, Drug Enforcement Administration (DEA) agents were watching as Felle delivered three bales of marijuana to Scigowski. After seeing Felle and Scigowski carry burlap bales from a car into the latter's house, the agents placed both men under arrest.

Page 364

Felle quickly agreed to cooperate with the government. He informed the agents that he expected another very large marijuana shipment to arrive from Kingston the following day. Felle's telephone calls to other members of the ring in the early hours of the morning confirmed the fact of the shipment, but failed to pinpoint the details for the agents.

Some time after noon on January 31, Buckle arrived at Felle's New York City apartment, picked up Schaller, and departed for Kingston in a Chevrolet camper van owned by McGrath. Police units in the field learned of the make and license number of the van by radio at 1:30 p. m. DEA Agent Siegel, who had arrested Felle, spotted the van near Exit 16 on the Thomas E. Dewey Thruway at 3:45 p. m. He followed the van to a Volkswagen dealership in Kingston and then to the Schaller farmhouse where it arrived between 4:30 and 5:00 p. m. Between then and 6 p. m., a New York State police airplane conducted air surveillance of the farmhouse and reported to the ground units that the van was being loaded with marijuana.

The agents did not know whether the van would remain in Kingston overnight. They had Felle call Schaller to learn his plans. Felle relayed to the agents Schaller's assurance that the van would leave for New York City by 8 p. m. At 8:45 the van was still at the farmhouse. DEA Agent Siegel decided to apply for a search warrant. He left for a nearby State Police barracks to prepare an affidavit. Within minutes of his departure, however, the van started to leave the Schaller farmhouse. Officers who were still there stopped the van which was being driven by Buckle with Schaller as his passenger. A search revealed 760 pounds of baled and boxed marijuana in the van. Both men were arrested. A briefcase in the possession of Schaller also was seized and later searched; it contained the records of the ring's drug operations. The records included a meticulous listing of which bales had gone to which persons. It reflected the exact contraband contents of the van. Agents quickly obtained a warrant to search the Schaller home where they found and seized another 3,400 pounds of marijuana.

Although two tons of marijuana had been seized, the members of the ring still at large had 3,400 pounds at the warehouse. At cut rates by which they intended to reduce their stockpile in February, they sold another quarter of a million dollars worth of the warehouse marijuana. The operations of the ring finally were brought to a halt on June 15 when a superseding indictment was returned which named as defendants the four appellants and others. The indictment charged all defendants with conspiracy and with various offenses of possession and distribution.

McGrath, Buckle and Schaller already had been charged with possession in a complaint filed February 1. A further grand jury investigation followed, based on the records of the ring which had been seized. On March 3, the government moved for a 60 day extension in which to indict because of the great quantity of documentary material to be reviewed. Judge Pierce heard arguments on the motion. He also conducted an in camera examination of the records. On March 6, he granted the extension under the Speedy Trial Act. McGrath and Buckle were indicted on May 5 and thereafter were named with the other appellants in the superseding indictment of June 15.

In March 1978, Buckle, McGrath and Schaller filed motions for the return of their property. They also moved for the suppression of the material seized from the van. Judge Lasker denied these motions on March 16. McGrath and Buckle, with others, renewed these motions in September before Judge Werker to whom the case had been assigned for trial. Evidentiary hearings were held. Judge Werker filed three written opinions. In the first, he rejected the contention that police had conducted an impermissible, warrantless search of the camper. In the second, he held that the drug record notebook had been taken from Schaller's briefcase during an improper search under United States v. Chadwick, 433 U.S. 1 (1977). The third opinion, in

Page 365

response to the government's motion objecting to the standing of Buckle and McGrath to assert Fourth Amendment claims regarding the briefcase, held that the requisite standing was lacking and that the notebook should be admitted in evidence.

After a four week trial, the jury convicted appellants of the offenses stated above. From the judgments entered on the jury's verdict, these appeals have been taken.

II.

In the light of these facts and prior proceedings, we turn first to the question whether the district court properly denied motions to suppress evidence seized without a warrant from the van and from the briefcase. We hold that the motions were properly denied.

Appellants in essence argue that the officers knew of the planned marijuana shipment some seven hours in advance and still failed to obtain a search warrant. This resulted, so the argument goes, in a planned but warrantless search, in violation of the Fourth Amendment. We disagree.

As for the search of the van, it is true that the agents knew its identity...

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56 practice notes
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    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 29, 1984
    ...v. Edwards, 627 F.2d 460, 461 (D.C.Cir.), cert. denied, 449 U.S. 872, 101 S.Ct. 211, 66 L.Ed.2d 92 (1980); United States v. McGrath, 613 F.2d 361, 366 (2d Cir.1979), cert. denied, 446 U.S. 967, 100 S.Ct. 2946, 64 L.Ed.2d 827 697 F.2d at 1372; see United States v. Zielie, 734 F.2d 1447, 1453......
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    ...misconstrued the case law upon which they rely as support for their claim. For example, the Second Circuit case, United States v. McGrath, 613 F.2d 361, cert. denied Buckle v. United States, 446 U.S. 967, 100 S.Ct. 2946, 64 L.Ed.2d 827 (1980), actually supports defendant's position that all......
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    ...a privacy interest in the bag, the district court cited Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, and United States v. McGrath, 613 F.2d 361 (2d Cir.1979), cert. denied, 446 U.S. 967, 100 S.Ct. 2946, 64 L.Ed.2d 827 (1980). Neither case stands for the proposition that a bailee such ......
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