U.S. v. Taylor

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: Before SMITH, OAKES and TIMBERS; OAKES; TIMBERS
• Citation: U.S. v. Taylor, 562 F.2d 1345 (2nd Cir. 1977)
• Decision Date: 13 April 1977
• Docket Number: Nos. 330-334 and 336,D,s. 330-334 and 336
• Parties: UNITED STATES of America, Appellee, v. Al TAYLOR et al., Appellants. ockets 76-1210, 76-1256, 76-1264-66 and 76-1288.

Page 1345

562 F.2d 1345

UNITED STATES of America, Appellee, v. Al TAYLOR et al., Appellants.

Nos. 330-334 and 336, Dockets 76-1210, 76-1256, 76-1264-66

and 76-1288.

United States Court of Appeals Second Circuit.

Argued Oct. 20, 1976.

Decided April 13, 1977.

Certiorari Denied in No. 76-1288 June 20, 1977.

See 97 S.Ct. 2958.

Certiorari Denied in Nos. 76-1264 to 76-1266 Oct. 3, 1977.

See 97 S.Ct. 170.

John A. Ciampa, New York City, for appellant Taylor.

Nancy Rosner, New York City, for appellant Turner.

Lawrence H. Levner, New York City, for appellant Ramsey.

Eleanor Jackson Piel, New York City, for appellant Wesley.

Harold Schwartz, Brooklyn, N. Y., for appellant Green.

Harry R. Pollak, New York City, for appellant Salley.

Thomas E. Engel, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., John S. Siffert, Martin B. McNamara, Audrey Strauss, Asst. U. S. Attys New York City, of counsel), for appellee.

Before SMITH, OAKES and TIMBERS, Circuit Judges.

OAKES, Circuit Judge:

The six appellants before us were among 17 defendants indicted for conspiracy to violate the federal narcotics laws in particular 21 U.S.C. §§ 846, 812, 841(a)(1), 841(b)(1)(A). All appellants were convicted on the conspiracy count after a nine-week jury trial in the United States District Court for the Southern District of New York, Kevin Thomas Duffy, Judge. Appellants Wesley and Green were also convicted on substantive counts, for distributing one-half and one-quarter kilogram of heroin, respectively. Sentences were imposed in May and June of 1976. ¹ The appellants raise numerous claims in respect to the proof, the conduct of the trial, and the selection of, charge to, and court's communications with the jury. We affirm.

I. NATURE OF THE CONSPIRACY

The narcotics conspiracy involved in this appeal is, in the Government's words, "an extension" of that involved in United States v. Tramunti, 513 F.2d 1087 (2d Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975). The conspiracy alleged was that, from January 1, 1969, to December 6, 1973 (the same dates involved in Tramunti, see id. at 1093), the indicted defendants, together with Warren Robinson, Frank Pugliese and others, conspired to receive, buy, and sell, and to facilitate the transportation, concealment and sale of, unlawfully imported narcotics drugs and to distribute and possess with intent to distribute narcotic drug controlled substances. All of the 37 overt acts alleged in the indictment took place between March of 1971 and October of 1972, except for two overt acts allegedly occurring in June and October of 1973. The Government's proof primarily consisted of testimony by Harry Pannirello, Jimmy Provitera and Thomas "Tennessee" Dawson, very similar to their testimony in Tramunti, supra, see id. at 1097-98, and by two defendants who pleaded guilty, James March and Dorethea Ann Ellis. Broadly speaking, the proof was that Pugliese was the source of narcotics wholesaled by Warren Robinson in Washington, D. C., and Al Green in New York. The appellants other than Green were all either customers of Robinson and his partner, Dawson, in the Washington, D. C., area (appellants Taylor, Turner and Ramsey), or persons who assisted Robinson and Dawson in transporting, storing, diluting and delivering heroin in Washington (appellants Salley and Wesley).

In 1971, both Pugliese and his key lieutenant, Paul DiGregorio, went to jail, with Pugliese designating Pannirello and a Pat Dilacio to run the business in his absence. Commencing in January, 1972, Pannirello used his brother-in-law, Provitera, to make deliveries. Robinson's Washington operation and at least two of Pugliese's New York customers, appellant Green and fugitive defendant Basil Hansen, continued to deal with Pannirello and Dilacio on the same basis as they had with Pugliese. Thus the core group of the alleged conspiracy consisted of Pugliese, DiGregorio, Pannirello and Dilacio, a group that served, in the Government's term, as the "hub" ² around which multikilogram quantities of narcotics were purchased and distributed.

II. THE CONSPIRACY CONVICTIONS

All appellants except Ramsey raise points relating to either the scope of the conspiracy (i. e., that the evidence showed multiple conspiracies, rather than the single conspiracy alleged in the indictment) and the charge thereon, or the sufficiency of the evidence of their participation in the conspiracy, or both. We will first consider the multiple conspiracy issue and the charge given, then examine the sufficiency of the evidence as to each appellant.

A. Single v. Multiple Conspiracies

We have recently recognized that, "(w)hen a pattern of illegal activity persists over an extended period of time, with participants moving on and off the scene of action, it is sometimes difficult to establish that they are all part of a single conspiracy." United States v. Armedo-Sarmiento, 545 F.2d 785, 789 (2d Cir. 1976). It is the Government's burden to establish the conspiracy alleged in the indictment, and whether this burden has been met "is ordinarily a question of fact for the jury," id. at 309. Our task on review is to determine whether the legal standard given to the jury by the trial court in its charge was correct and whether, viewing the proof in the light most favorable to the Government, there was sufficient evidence to permit the jury to find the single conspiracy alleged.

Judge Duffy's charge on multiple conspiracies was virtually identical to the one he used in Tramunti, supra, which is reproduced in 513 F.2d at 1107. We held that charge "clear, correct and within the decided cases." Id. The charge here correctly told the jurors that they had to acquit unless they found the existence of the conspiracy charged in the indictment and found that each defendant they convicted was a member of that conspiracy. Appellant Wesley requested a supplemental charge to the effect that, if multiple conspiracies were in fact proved, all defendants were to be acquitted, regardless of whether the conspiracy charged in the indictment had been proved. The trial court properly denied this request; it is an incorrect statement of the law. See United States v. Lam Lek Chong, 544 F.2d 58, 68 (2d Cir. 1976); United States v. Tramunti, supra, 513 F.2d at 1107-08.

On the question whether the conspiracy charged was sufficiently proved as a whole we consider whether it was sufficiently proved as to each defendant in the following subsection, infra the discussion in Tramunti is relevant. There, as here, appellants had a common source of heroin supply, here the Pugliese operation, and there was proof of "mutual dependence and assistance."513 F.2d at 1106. While appellants had their principal operations in two cities New York (appellant Green) and Washington (all others) the evidence of a common source of supply justified "treatment of the two spheres as one general business venture", id. There was here, moreover, a "consistency of personnel, method and type of operation", United States v. Hinton, 543 F.2d 1002, 1014 (2d Cir. 1976), from which the jury could have found a single venture. As we have recently recognized, "(m)ost narcotics networks involve loosely knit vertically-integrated combinations", United States v. Panebianco, 543 F.2d 447, 452 (2d Cir. 1976), and such a combination could reasonably have been found here. See generally Note, Resolution of the Multiple Conspiracies Issue Via a "Nature of the Enterprise" Analysis: The Resurrection of Agreement, 42 Brooklyn L.Rev. 243 (1975).

B. The Individual Appellants and the Charged Conspiracy

Before turning to an examination of the proof adduced as to each appellant, a few established principles should be restated. First, "the gist of the offense (of conspiracy) remains the agreement, and it is therefore essential to determine what kind of agreement or understanding existed as to each defendant." United States v. Borelli, 336 F.2d 376, 384 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965). In making this determination, courts often look to such factors as knowledge and dependency as evidence of an agreement. These factors, in turn, may be inferred from an assessment of the nature of the criminal enterprise and the defendant's role in it, since "it would be unrealistic to assume that major producers, importers, wholesalers or retailers (of narcotics) do not know that their actions are inextricably linked to a large on-going plan or conspiracy." United States v. Arroyo, 494 F.2d 1316, 1319 (2d Cir.), cert. denied, 419 U.S. 827, 95 S.Ct. 46, 42 L.Ed.2d 51 (1974); see United States v. Ortega-Alvarez, 506 F.2d 455, 457 (2d Cir. 1974) (per curiam), cert. denied, 421 U.S. 910, 95 S.Ct. 1559, 43 L.Ed.2d 775 (1975); United States v. Mallah, 503 F.2d 971, 983-84 (2d Cir. 1974), cert. denied, 420 U.S. 995, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1975); United States v. Bynum, 485 F.2d 490, 495-96 (2d Cir. 1973), vacated on other grounds, 417 U.S. 903, 94 S.Ct. 2598, 41 L.Ed.2d 209 (1974); Note, supra, 42 Brooklyn L.Rev. at 256-57, citing United States v. Bruno, 105 F.2d 921 (2d Cir.), rev'd on other grounds, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257 (1939). For such an inference to be drawn, however, it is necessary to examine "the qualitative nature of the act or acts (of each defendant) . . . in the context of the entire conspiracy . . . ." United States v. Torres, 503 F.2d 1120, 1124 (2d Cir. 1974).

1. Wesley. Viewing the relevant conspiracy as one grounded in the New York distributing operation of Pugliese and his lieutenants, we have no difficulty in concluding that the evidence was sufficient to convict appellant Wesley as a member of that conspiracy.

Dawson met Wesley in early 1971 through Robinson, who persuaded Dawson to hire Wesley to work at Dawson's bar. Wesley not only accompanied Dawson and sometimes Robinson to New York and New Jersey, where they purchased multikilogram...