U.S. v. Simmons

Decision Date20 February 1991
Docket NumberNos. 473,s. 473
Citation923 F.2d 934
Parties32 Fed. R. Evid. Serv. 1296 UNITED STATES of America, Appellee, v. Alex SIMMONS, a/k/a "Yaqui," Robert Cofer, Arnold Lawson, a/k/a "Country Bones," Larry Caldwell, Miriam Baker, Barry Judd, a/k/a "Box," William Norris, a/k/a "El San," Gary Simmons, a/k/a "Merciful," a/k/a "Merc," Lawrence Williams, a/k/a "Hammy Red," Steven Monsanto, a/k/a "Stevie," a/k/a "Fats," Peter Monsanto, a/k/a "PJ," a/k/a "Petey," Sedgwick Harvey, a/k/a "Uncle Harvey," Defendants-Appellants. to 484, Dockets 88-1504 to 88-1507, 88-1512, 88-1521 to 88-1525, 88-1529 and 88-1545.
CourtU.S. Court of Appeals — Second Circuit

Barry M. Fallick, New York City (Rochman, Platzer & Fallick, of counsel), for defendant-appellant Alex Simmons.

Bobbi C. Sternheim, New York City, for defendant-appellant Robert Cofer.

David Gordon, New York City, for defendant-appellant Arnold Lawson.

Philip Katowitz, New York City, for defendant-appellant Larry Caldwell.

Larry Caldwell, Lompoc, Cal., pro se.

Charles Adler, New York City (Goltzer & Adler, of counsel), for defendant-appellant Miriam Baker.

Howard Mullholland, New York City, for defendant-appellant Barry Judd.

Marion A. Seltzer, New York City, for defendant-appellant William Norris.

Frederick H. Block, New York City, for defendant-appellant Gary Simmons.

Oscar Holt, New York City (Wiggins, Holt & Garnett, of counsel), for defendant-appellant Lawrence Williams.

Martin Goldberg, Franklin Square, N.Y., for defendant-appellant Steven Monsanto.

David L. Lewis, New York City, for defendant-appellant Peter Monsanto.

Philip R. Edelbaum, New York City, for defendant-appellant Sedgwick Harvey.

Annmarie Levins, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y., Howard E. Heiss, Daniel A. Nardello, Daniel C. Richman, Linda C. Severin and David E. Brodsky, Asst. U.S. Attys., of counsel), for appellee.

Before OAKES, Chief Judge, MESKILL, Circuit Judge, and RESTANI, Judge. *

OAKES, Chief Judge:

This appeal continues several years of protracted litigation, which originated as a six-month narcotics, RICO and conspiracy trial of seventeen defendants, and which along the way has produced a panel, an en banc and a Supreme Court decision regarding the constitutionality of the federal criminal forfeiture statute, 21 U.S.C. Sec. 853 (1988). See United States v. Monsanto, 836 F.2d 74 (2d Cir.1987), vacated, 852 F.2d 1400 (2d Cir.1988) (en banc), rev'd, 491 U.S. 600, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989).

Appellants were originally indicted and convicted for participating in a vast wholesale and retail heroin distribution network that operated from Boston to Washington, D.C. On this occasion, we affirm those convictions.

BACKGROUND
I. The Indictments

Peter Monsanto, Alex Simmons, Robert Cofer, Arnold Lawson, Larry Caldwell, Miriam Baker, Barry Judd, William Norris, Gary Simmons, Lawrence Williams, Steven Monsanto, and Sedgwick Harvey (collectively known as the "Monsanto Crew") appeal from judgments of conviction in the United States District Court for the Southern District of New York, Robert J. Ward, Judge, after a six-month jury trial that ended on July 25, 1988.

Appellants were convicted on all twenty-four counts alleged in Indictment S 87 Cr. 555, which was filed on October 17, 1987. 1 Counts One and Two charged appellants with participating in and conspiring to participate in the affairs of a racketeering enterprise, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Secs. 1961-1968 (1988). These counts detailed eighteen acts of racketeering activity, including murder, conspiracy to murder, heroin trafficking and conspiracy to distribute heroin. While all appellants were not indicted for every racketeering act, each was alleged to have participated in at least two acts of racketeering activity. Racketeering Act # 1 charged Peter Monsanto, Gary Simmons, Robert Cofer and Arnold Lawson with conspiracy to murder and with the murder of Bobby Walker, a former member of the Monsanto Crew. Racketeering Act # 2 charged Peter Monsanto, Robert Cofer, Larry Caldwell, Arnold Lawson, Gary Simmons, Alex Simmons and William Norris with conspiracy to murder three individuals who allegedly had attacked Peter Monsanto's wife. Racketeering Acts # 3-4 charged Peter Monsanto, Robert Cofer, Gary Simmons, Alex Simmons and Arnold Lawson with the murders of William Graham and Billy Shuff. Racketeering Act # 5 charged all appellants with conspiracy to distribute heroin. Racketeering Acts # 6-18 charged all appellants with either possession of heroin with intent to distribute or distribution of heroin.

Count Three charged all appellants with participating in a narcotics conspiracy, in violation of 21 U.S.C. Sec. 846 (1988). Count Four charged Peter Monsanto with operating a continuing criminal enterprise, in violation of 21 U.S.C. Sec. 848 (1988). Counts Five and Six charged Gary Simmons and Sedgwick Harvey with distribution of heroin, in violation of 21 U.S.C. Sec. 841(b)(1)(B) (1988). Counts Seven through Twelve charged Peter Monsanto with unlawful possession of firearms, in violation of 18 U.S.C. Appendix, Sec. 1202(a) (1982) (repealed 1986). Counts Thirteen through Seventeen charged Gary Simmons, Alex Simmons and William Norris with weapons offenses in violation of the same statute. Counts Eighteen through Twenty-One charged Peter Monsanto with federal income tax evasion, in violation of 26 U.S.C. Sec. 7201 (1988). Counts Twenty-Two through Twenty-Four charged that certain property owned by Peter Monsanto was subject to criminal forfeiture under 21 U.S.C. Sec. 853(a) (1988).

II. Factual History

This case involves the affairs of a heroin distribution network that functioned from 1981 until its demise in 1986, and that has become known as the Monsanto Crew. During those five years, the Monsanto Crew sold massive amounts of heroin in New York City and numerous other locations throughout the northeastern United States by means of a complicated wholesale and retail distribution network. According to the Government's evidence, the network functioned roughly in the following manner: Peter Monsanto, the recognized leader of the Crew, would initially purchase bulk quantities of heroin from wholesale distributors and transfer the supply to heroin mills, where it would be packaged in "quarter bags" (valued at approximately $30 each). After packaging, Peter Monsanto would provide the quarter bags on consignment to his "lieutenants," each of whom operated a separate, semi-autonomous distribution network. Ultimately, each lieutenant would oversee the sale of the heroin on the street, and return the money received to Peter Monsanto. The Government contends that Robert Cofer, Gary Simmons, Alex Simmons, William Norris, Arnold Lawson, Larry Caldwell, Lawrence Williams, Sedgwick Harvey and Barry Judd were lieutenants in the Monsanto Crew.

Steven Monsanto and Miriam Baker, the two appellants who did not function as lieutenants in the Monsanto Crew, performed other important duties in the operation. Steven Monsanto, who was serving a thirty-year sentence in a federal penitentiary for an unrelated 1978 heroin conviction during the period in question, helped secure heroin for the operation by arranging meetings between members of the Monsanto Crew and other heroin suppliers. Miriam Baker, the mother of Peter and Steven Monsanto, distributed heroin to other members of the Crew, assisted Peter Monsanto in thwarting investigations into his criminal activities, and aided in securing sources of heroin supply.

Peter Monsanto met with his lieutenants on virtually a daily basis at the Crew's headquarters, originally located at "Lisa's," a restaurant on Boston Post Road in the Bronx. When Lisa's closed down in June 1984, the daily meetings shifted to the Crew's new headquarters, a restaurant known as "New Lisa's," also located in the Bronx. It was at these locations that Peter Monsanto would distribute heroin, collect money due on previous consignments, and discuss the business of the enterprise. Meetings also took place at other venues, including the apartment of one of Peter Monsanto's girlfriends and "Jack Girl's Famous Soul Food Restaurant," on Morris Avenue in the Bronx.

The Monsanto Crew was an extremely violent group that consistently used fierce tactics to secure its position in the heroin business and to enforce discipline within its own ranks. Evidence of two incidents demonstrated these violent tendencies. The first, alleged in the indictment as Racketeering Act # 1, concerned the murder of Bobby Walker, who previously had functioned as a lieutenant in the Monsanto Crew. By the end of 1982, Walker and his partner owed Peter Monsanto more than $70,000. On April 15, 1983, Peter Monsanto, Arnold Lawson, Robert Cofer and Gary Simmons confronted Walker about this debt in Lisa's Restaurant. In the ensuing exchange, Walker supposedly "said something stupid" and was summarily stabbed and shot to death by members of the Crew. His body was then removed from the restaurant and disposed of in a U-Haul truck in a deserted section of the Bronx.

The second incident, alleged as Racketeering Acts # 2-4, concerned the conspiracy to murder and murder of three individuals who previously had attacked Peter Monsanto's wife, Jacqueline Monsanto. On January 16, 1984, Jacqueline Monsanto and a friend were shot in a hallway of a Bronx apartment building during the course of an unrelated narcotics transaction. The Monsanto Crew organized the next day at Lisa's restaurant, where Peter Monsanto explained that three individuals--Martin Pitt, Vincent Reynard and William Graham--were responsible for the attack on his wife and that the heroin supply would cease until the three perpetrators had been caught. Thereafter, Peter Monsanto, Robert Cofer, Larry Caldwell, Arnold Lawson, Gary Simmons, ...

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