U.S. v. Napue, 85-2642

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation834 F.2d 1311
Docket NumberNo. 85-2642,85-2642
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Irving L. NAPUE, Defendant-Appellant.
Decision Date21 January 1988

Jerold S. Solovy, Robert W. Kent, Jr., Jenner & Block, Chicago, Ill., for defendant-appellant.

Anton R. Valukas, U.S. Atty., Stephen L. Heinze, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS, CUDAHY, Circuit Judges, and GRANT, Senior District Judge. *

CUDAHY, Circuit Judge.

Defendant Irving Lopez Napue was convicted by jury verdict of ten counts of possession with intent to distribute cocaine, 21 U.S.C. Sec. 841(a)(1), one count of conspiracy to possess with intent to distribute heroin and cocaine, 21 U.S.C. Sec. 846, one count of use of a telephone to cause and facilitate the unlawful distribution of cocaine, 21 U.S.C. Sec. 843(b), and two counts of making fraudulent statements on his income tax returns, 26 U.S.C. Sec. 7206(1). The jury acquitted Napue on one count that alleged that his narcotics trafficking constituted a continuing criminal enterprise, 21 U.S.C. Sec. 848. The district court sentenced Napue to a prison term of eighteen years followed by five years of probation and a special parole term of life. Napue now appeals his conviction.

I.

Napue alleges that the district court made the following errors that require reversal of his conviction: (1) his constitutional rights were violated by ex parte communications between the government and the district court; (2) the evidence of Napue's dangerousness presented by the government in the ex parte communications was insufficient to justify any limitation on the government's pretrial disclosure obligations; (3) the district court abdicated to the government the determination of the government's pretrial discovery obligations; (4) the prosecutor violated a court order by referring in rebuttal argument to a fact not in evidence; (5) the district court erred in denying Napue's motion to suppress guns and a scale seized during the August 1, 1979 search of his hotel room; (6) the district court erred in denying Napue's request for an evidentiary hearing on his motion alleging that the government prosecuted this case vindictively; and (7) the government's evidence at trial of Napue's alleged conspiracy varied fatally from the indictment.

We will describe the facts that are relevant to each of Napue's claims along with our discussion and disposition of the claims. We will briefly describe here some of the central evidence offered at trial of Napue's involvement in the possession and distribution of narcotics. Napue's trial lasted eleven weeks and Napue was the only defendant.

In March of 1973, Napue was released from federal prison where he had served a sentence for narcotics offenses. Upon his release, Napue returned to Chicago and was on parole until August of 1974. During his period of parole, he was required to report all income and sources of income to his parole officer. At trial, Napue's parole officer testified that Napue reported a little over $4000 income for March through December 1973 and approximately $3000 for January through July 1974. Napue reported to his parole officer that he was employed at a jewelry store, but the owner of that store, Armando Martinez, testified at trial that Napue never worked for him. Rather, according to Martinez, Napue purchased jewelry from Martinez every week or two during the time Napue claimed to be working for him. Napue paid for the jewelry in cash and usually offered Martinez small amounts of cocaine. The government introduced evidence that Napue claimed in an application for homeowner's insurance to own $25,000 in furs and $24,000 in jewelry purchased in 1973-74, and that during that same time Napue purchased an interest in six cabs and a house.

Martinez further testified that Napue asked him to find a customer to purchase cocaine from Napue. Martinez agreed to try to do so and he later arranged for the sale of an ounce of cocaine on May 10, 1974, by Napue to government informant Mario Torres and an undercover federal agent, Gustavo Vazquez. Torres also testified at trial that this sale took place.

In September 1974, Napue and his wife purchased a house in Las Vegas, Nevada, which was put in Napue's sister-in-law's name. Napue purchased an answering-beeper service from October 1974 through January 1982 and was billed for it first at the address of the house he purchased in September and later at various other Las Vegas addresses.

Charles Wilson testified that he began selling heroin on Chicago's West Side in July or August 1975. He began purchasing heroin for resale directly from Napue in late 1976, at which time he was also purchasing heroin from his brother, Robert "Rabbit" Parker, who also purchased heroin from Napue. From late 1976 through early 1977, Wilson purchased heroin from Napue in quantities of eight to ten ounces per transaction; from early 1977 through the summer of 1978, Wilson purchased heroin from Napue in one-pound quantities for $21,000 on almost a weekly basis. Later, Napue supplied Wilson with smaller quantities of heroin, about five to ten ounces every week or two. Wilson testified that Harry "Dog" Cannon worked for him as his assistant and that by the end of 1978 Wilson had turned over most of his operation to Cannon. Wilson directed Cannon to purchase heroin from Napue. In 1979, Wilson saw Cannon sell a car to Napue which Napue paid for with heroin and money.

Robert Gaston testified that he bought and sold drugs with Rabbit Parker in 1980 and 1981. Gaston testified that he and Parker purchased cocaine and heroin from Napue on a regular basis from the summer of 1980 through October 31, 1981, the day before Parker was killed. After Parker's death, Gaston continued purchasing narcotics from Napue through October 1982.

Myron Bing Matsumoto testified that he purchased one-ounce quantities of cocaine from Napue on four separate occasions in 1980.

Several government witnesses testified concerning Napue's sources of cocaine. Edward Fields and two people who worked for Fields at that time, John Unger and Myron Bing Matsumoto, testified that they sold large quantities of cocaine to Napue from February or March 1979 through October 1979. On at least one occasion, Unger provided cocaine to Napue prior to being paid. Robert Bridges testified that he also sold cocaine to Napue beginning in about May 1979, when he was introduced to Napue by their mutual attorney, James Cutrone. Bridges gave cocaine to Napue in advance of being paid on at least one occasion. Bridges' cocaine sales to Napue ended sometime in 1981; following a conversation Bridges had with Parker, Bridges quoted Napue a high price for cocaine in order to stop dealing with him. 1

The government also introduced evidence that Napue's wife, Joyce Smith, and several other women purchased more than thirty guns for use in connection with Napue's narcotics transactions. Employees at the gun stores that sold the guns to the women testified that Napue accompanied the women during at least several of these purchases and that Napue and his wife occasionally practiced at the shooting range in the back of one of the gun stores. Police officers testified that during arrests some of these guns were recovered from Napue and from women who were with Napue. Testimony and evidence at trial indicated that these women, in addition to purchasing guns for Napue, actively participated in his drug transactions. Some of the drug dealers who testified to doing business with Napue also testified that they saw Napue carrying guns.

II.

Prior to his trial, Napue repeatedly sought additional information from the government about the charges against him. On April 4, 1984, Napue filed a motion to dismiss the conspiracy count of the indictment for vagueness, or, in the alternative, for a bill of particulars providing the names of Napue's alleged co-conspirators and the nonconspirators with whom he allegedly did business, as well as the details of each of the alleged overt acts of the conspiracy. On that same date, Napue filed a motion for disclosure of the identities of others suspected by the government to have complicity in the alleged offenses. On January 8, 1985, Napue filed a Rule 16 motion for discovery and inspection that sought, among other things, a list of all witnesses whom the government intended to call at trial.

The government objected to supplying Napue with some of the information he requested on the ground that Napue was a dangerous individual who would pose a threat to the safety of some of the government's witnesses if they were identified to Napue. On two occasions during the pretrial proceedings, the government and the district court engaged in ex parte communications regarding Napue's alleged dangerousness as it related to his discovery requests. On November 19, 1984, the government submitted to the district court a document describing the basis for its belief that Napue's dangerousness justified limiting pretrial disclosure of the identity of some of the government's witnesses. On March 13, 1985, the district court held an ex parte conference from which Napue was excluded and at which the government made additional specific allegations of Napue's dangerousness. In each of these two instances, Napue was given notice prior to its occurrence that the ex parte communication was to be made, but was denied the opportunity to review or rebut the government's allegations.

Napue claims on appeal that this ex parte procedure violated "his Due Process rights to rebut these allegations and to have his alleged dangerousness determined as accurately as possible; and his Sixth Amendment rights to have counsel interview witnesses in preparation for trial and to have counsel present his defense at trial."...

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