U.S. v. Nolan

• Citation: 718 F.2d 589
• Decision Date: 30 September 1983
• Docket Number: No. 82-5263,82-5263
• Parties: UNITED STATES of America, Appellee, v. Charles Wallace NOLAN, Jr., a/k/a "Charlie", a/k/a Rocco Favorite, a/k/a Harold Mathers, a/k/a Mark Anthony Mallino, Mohan Singh, an Indian National. Appeal of Charles Wallace NOLAN, Jr.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 589

718 F.2d 589

UNITED STATES of America, Appellee, v. Charles Wallace NOLAN, Jr., a/k/a "Charlie", a/k/a Rocco Favorite, a/k/a Harold Mathers, a/k/a Mark Anthony Mallino, Mohan Singh, an Indian National Appeal of Charles Wallace NOLAN, Jr.

No. 82-5263.

United States Court of Appeals Third Circuit.

Argued Jan. 11, 1983.

Decided Sept. 30, 1983.

J. Alan Johnson, U.S. Atty., Constance M. Bowden (argued), Paul J. Brysh, Michael A. Cauley, Asst. U.S. Attys., Pittsburgh, Pa., for appellee.

H. David Rothman (argued), Pittsburgh, Pa., for appellant.

Before WEIS, SLOVITER and BECKER, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

This appeal from convictions on a seven-count indictment, charging both conspiracy and substantive counts of importation and possession of morphine with intent to distribute it, raises two overriding issues: (1) the sufficiency of evidence to support the conviction; and (2) whether certain evidence seized incident to the arrest of appellant Charles Nolan, upon which two counts of the indictment depend, must be suppressed because the federal marshals who made the arrest failed to abide by the statutory "knock and announce" requirement, 18 U.S.C. Sec. 3109 (1976), that applies to an arrest of a person in his home. We have no difficulty in concluding that there was sufficient evidence to sustain the convictions. ¹ The suppression however presents a close and difficult (and largely unexplored) question of the contours of the exigent circumstances "escape" exception to Sec. 3109. We hold that on the facts of this case the seizure of evidence was lawful. Consequently we affirm the judgment on all counts.

I. Factual and Procedural Background

In October 1978, appellant became a fugitive when he failed to turn himself in to parole authorities for violating parole; a bench warrant issued for his arrest on October 3, 1978. On October 19, 1978, appellant applied for a passport in the name of Rocco Favorite; over the course of the next two years he used this and other fraudulently obtained passports to travel back and forth between Europe, India, and the United States.

In 1978 appellant began to sell morphine to Shipley Danko, whom he had met in 1971 through a mutual friend, James Flora. Danko subsequently became the Government's chief witness. In May of 1979, following detailed instructions given to him by appellant, Danko obtained a passport in the name of Harry Usher, and traveled under that name to India with a friend, Silvio Ferea. There they purchased morphine, and returned to the United States with the morphine secreted in their rectal cavities. The events surrounding the May 1979 trip are the subject of Count III of the indictment, charging appellant with aiding and abetting the importation of morphine in violation of 21 U.S.C. Sec. 952(a) (1976) and 18 U.S.C. Sec. 2 (1976).

In October 1979, appellant, Danko and James Flora traveled together to India. Appellant and Danko travelled under false passports. In India appellant took Danko and Flora to Benares, where the three of them purchased morphine. They returned to the United States in November 1979 with the morphine concealed in sundry body cavities. Appellant spent one night at Danko's apartment in Pittsburgh; the next day he left, saying that he was going to take his "stuff" to a person named George in McKeesport, Pennsylvania. On a prior occasion appellant had told Danko that George was to replace James Flora as appellant's morphine distributor. These events form the basis of Counts IV and V, which charge appellant with importation of morphine and with possession of morphine with intent to distribute it, in violation of 21 U.S.C. Secs. 952(a) and 841(a)(1) (1976), respectively, and 18 U.S.C. Sec. 2.

In January 1980, Danko returned to India with a group of people to purchase morphine. While there he encountered appellant, who invited Danko's party to join his own party to go to Benares to buy morphine. Danko declined, and they separated. Appellant traveled to India again in May, June, and August 1980. On September 9, 1980, after his return from this last trip, he was apprehended at a motel near Pittsburgh and arrested for the 1978 parole violation. Pursuant to appellant's arrest, federal agents seized, inter alia, quantities of morphine and hashish; this evidence formed the basis of Counts VI and VII, charging appellant with possession with intent to distribute those two substances, in violation of 21 U.S.C. Secs. 841(a)(1) and 844(a) (1976), and of 18 U.S.C. Sec. 2 (Count VI only).

In addition to the substantive counts described above, appellant was also charged in Counts I and II with engaging in conspiracies from October 1978 to September 1980, with other named and unnamed co-conspirators, to import morphine and to possess morphine with intent to distribute it, in violation of 21 U.S.C. Sec. 963 and Sec. 846 (1976).

Following a three-day jury trial in October 1982, appellant was convicted on all counts and sentenced to concurrent 20-year sentences on each of Counts I through VI and a one-year concurrent sentence on Count VII, to be followed by a lifetime term of special parole, see 21 U.S.C. Sec. 841(b) (1976 & Supp. IV 1980), on Counts III, IV, V and VI.

II. Sufficiency of the Evidence

A. The Aiding and Abetting Count

Count III charged appellant with aiding and abetting Danko and Silvio Ferea in the importation of morphine. ² The classic definition of aiding and abetting is found in Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 769-70, 93 L.Ed. 919 (1949):

In order to aid and abet another to commit a crime it is necessary that a defendant "in some sort associate himself with the venture, that he participate in it as something that he wishes to bring about, that he seek by his actions to make it succeed." L. Hand, J., in United States v. Peoni, 2 Cir. 100 F.2d 401, 402 [ (1938) ].

Four elements must be proved by the Government to make out a case of aiding and abetting: "[First,] the person who is being aided ... must be intentionally committing a crime; second, the aider or abettor must know that the other is committing a crime; third, the aider or abettor must have the purpose to aid that other to commit the crime; and, finally, fourth, the aider must in fact render aid or assistance." United States v. Interstate Engineering Corporation, 288 F.Supp. 402, 428 (D.N.H.1967) (Wyzanski, C.J.); see United States v. Van Scoy, 654 F.2d 257 (3d Cir.), cert. denied, 454 U.S. 1126, 102 S.Ct. 977, 71 L.Ed.2d 114 (1981); United States v. Scalzitti, 578 F.2d 507 (3d Cir.1978); United States v. Cades, 495 F.2d 1166 (3d Cir.1974). The Government has adduced sufficient proof of each of these elements.

As to the first element, Danko admitted his intent to import morphine. As to the second, Danko's testimony concerning appellant's provision of the necessary information to him was certainly sufficient to establish appellant's knowledge that Danko was, in the very near future, going to act upon the information. In particular, Danko testified that he had told appellant that he would like to go to India to obtain morphine, and that he could use the money he would make by importing it; this conversation occurred just after appellant had expressed a desire to stop making such trips. Appellant thereupon instructed Danko that it would be necessary to obtain a passport in someone else's name and explained to Danko the procedure for securing such a passport. Appellant further told Danko that, upon arriving in New Delhi, he should go to the Crown Hotel and contact certain Frenchmen living on the third floor, who would be able to arrange for Danko to purchase the morphine. Appellant also advised Danko that he should pay no more than 35 rupees per gram for the morphine. Finally, appellant told Danko that the safest way to carry the morphine back into the United States was in a body cavity and explained to him how to package the morphine for transport in this manner. The jury could reasonably infer from this evidence that appellant knew that Danko was going to commit the crime in question. It was therefore unnecessary for the Government to show that Danko had specifically informed appellant of his plans immediately before acting upon them.

The third element also has been satisfied: because Danko specifically expressed an interest in committing precisely the crime that appellant said he had grown weary of committing personally, a jury could easily infer that appellant intended to aid Danko in committing that crime by providing such detailed instructions. Further, the evidence of similar subsequent trips taken by Danko and appellant together would have allowed the jury reasonably to infer that appellant benefitted from Danko's first trip because he gained thereby a new partner in his ventures. This conclusion in turn would reasonably allow the jury to find that appellant had a purpose to aid Danko in the commission of this particular crime. We have stated before that

Although generally proof showing one to be an aider and abettor relates to events occurring before the charged crime of the perpetrator, evidence of acts subsequent to commission of the crime is competent to prove common design, and is significant in evaluating the conduct prior to the commission of the offense of one charged as an aider and abettor.

Government of the Virgin Islands v. Navarro, 513 F.2d 11, 15 (3d Cir.), cert. denied, 422 U.S. 1045, 95 S.Ct. 2662, 45 L.Ed.2d 698 (1975).

Finally, as to the fourth element, Danko testified that he followed appellant's instructions to the letter on this initial importation trip. There is thus evidence that appellant did in fact aid Danko in the commission of the crime.

Contrary to appellant's contention, therefore, we think there was ample evidence to support all of the elements required to show that appellant aided and abetted Danko in the importation of morphine in May or June of 1979. ³

B. The...