U.S. v. Terry

• Citation: 702 F.2d 299
• Decision Date: 16 May 1983
• Docket Number: D,349-50,348,388,426,892,385,Nos. 346-47,s. 346-47
• Parties: 12 Fed. R. Evid. Serv. 951 UNITED STATES of America, Plaintiff-Appellee, v. Willie TERRY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Eric NALVEN, Robert Guippone, Willard Williams, Onzelo Markum, Clarence Haynes, Saint Julian Harrison, Paul Jenkins, and Anthony Michael Porcelli, Defendants- Appellants. ockets 82-1125, 82-1175, 82-1177, 82 1179, 82-1181, 82-1183, 82-1189, 82-1185, 82-1187.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 299

702 F.2d 299

12 Fed. R. Evid. Serv. 951

UNITED STATES of America, Plaintiff-Appellee, v. Willie TERRY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Eric NALVEN, Robert Guippone, Willard Williams, Onzelo

Markum, Clarence Haynes, Saint Julian Harrison,

Paul Jenkins, and Anthony Michael

Porcelli, Defendants- Appellants.

Nos. 346-47, 348, 349-50, 385, 388, 426, 892, Dockets

82-1125, 82-1175, 82-1177, 82 1179, 82-1181,

82-1183, 82-1189, 82-1185, 82-1187.

United States Court of Appeals,

Second Circuit.

Argued Dec. 1, 1982.

Decided Feb. 18, 1983.

Certiorari Denied May 16, 1983.

See 103 S.Ct. 2095.

Bennett M. Epstein, New York City, for defendant-appellant Terry.

Stanley Neustadter, New York City, for defendant-appellant Nalven.

Martin G. Weinberg, Boston, Mass. (Oteri, Weinberg & Lawson, Boston, Mass., of counsel), for defendants-appellants Guippone and Porcelli.

Jay Goldberg, New York City, for defendant-appellant Williams.

Theodore Krieger, New York City, for defendant-appellant Markum.

Richard A. Greenberg, New York City, for defendant-appellant Haynes.

Salvatore F. Quagliata, Ozone Park, N.Y., for defendant-appellant Harrison.

Jeffrey L. Greenup, New York City, for defendant-appellant Jenkins.

Richard A. Martin and Kate Stith Pressman, Asst. U.S. Attys., New York City (John S. Martin, Jr., U.S. Atty. for S.D.N.Y., Walter P. Loughlin, Asst. U.S. Atty., New York City, of counsel), for plaintiff-appellee.

Before LUMBARD, MANSFIELD and KEARSE, Circuit Judges.

MANSFIELD, Circuit Judge:

Defendants appeal from judgments of the Southern District of New York convicting them of federal narcotics violations arising out of the same core of operative facts. One indictment (S 81 Cr. 398) charged (1) seven of the appellants (all but Terry) and 10 others ¹ with conspiracy to possess and distribute heroin and cocaine in violation of 21 U.S.C. Sec. 846 (Count 1), (2) defendant Willard Williams with organizing and supervising a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848 (Count 2), and (3) various defendants with possession of large quantities of heroin and cocaine in violation of 21 U.S.C. Sec. 841(a)(1) (Counts 3 to 15) and illegal use of the telephone to further the narcotics conspiracy in violation of 21 U.S.C. Sec. 843(b) (Counts 16 to 25). Defendant Williams pleaded guilty to Count Two (criminal enterprise) preserving by stipulation three pretrial suppression claim issues for appeal. ² The other six appellants were convicted of the conspiracy count and the related substantive offenses charged after a six-week jury trial before Judge Richard Owen. ³ We reverse the judgment convicting appellant Haynes of conspiracy and illegal use of a telephone. ⁴ Finding no merit in the other claims of error, we affirm the judgments convicting Williams, Porcelli, Guippone, Harrison, Markum, and Nalven.

A second indictment (S 81 Cr. 426) charged Terry in three counts with similar narcotics violations (conspiracy with Williams and another to distribute heroin and cocaine, possession with intent to distribute 19.4 grams of cocaine and diluents, use of telephone to facilitate conspiracy). After a non-jury trial before Chief Judge Constance Baker Motley, Terry was convicted of all counts and placed on probation for two years. We affirm.

Viewed most favorably to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), the evidence showed that during the period from October 1980 to May 1981 Williams managed from his duplex apartment on East 89th Street, New York City, a continuing narcotics business in which he received and processed wholesale quantities of heroin and cocaine, re-sold these drugs to distributors, paid back the suppliers, laundering and banking the profits, and that all but one of the other seven appellants played active roles in the business, either as suppliers, purchasers, or facilitators (e.g., money launderers, drug testers). Defendants Porcelli and Guippone were the main suppliers of wholesale quantities of heroin and cocaine to Williams. The distributors included appellants Harrison, Markum, Nalven, Terry and various co-defendants. Harrison also became a supplier of cocaine to Williams when he was unable to pay Williams for the heroin he had distributed. This heroin had been supplied by Guippone and Porcelli. Nalven, in addition to acting as a distributor, assisted Williams in testing for purity drugs being supplied to Williams and "laundering" some of the large cash receipts from sales, i.e., arranging to bank the funds as coming from legitimate sources.

The evidence establishing the existence and operations of the narcotics enterprise consisted mainly of (1) testimony of Drug Enforcement Administration (DEA) agents who made an initial purchase of heroin from one of Williams' distributors and engaged in months of continuous surveillance of the defendants, (2) papers and articles retrieved from bags of Williams' trash placed on the sidewalk outside his apartment for collection, (3) pen registers, photographs, video tapes and court-authorized electronic surveillance of conversations among the appellants, (4) post-arrest admissions by some defendants, and (5) articles seized at the time of arrest of some, including one kilogram of cocaine found in Williams' apartment, $400,000 in safety deposit boxes controlled by him ($14,500 of which was part of $40,000 previously paid by DEA undercover agents for the purchase of heroin), firearms and ammunition found in the premises of Harrison, Guippone and Nalven, and cocaine from Harrison's automobile.

The government's investigation into the defendants' narcotics activities began on October 24, 1980, when a DEA agent, Zenford Mitchell, purchased one-eighth of a kilogram of heroin for $40,000 from a previously-convicted narcotics dealer, Steward, who obtained the heroin from an apartment building at 307 East 89th Street, New York City, where defendant Williams, a twice-convicted narcotics distributor, rented and occupied a ground-floor duplex apartment ("J" and "1J") under the name Felix Davis, with telephones registered in other names. Further surveillance, use of an informant, and an interview with the owner of the apartment building, provided reasonable grounds for the belief that the source of the narcotics was the Williams' duplex. For instance, Steward was seen on two occasions entering that apartment, after dialing the Williams' apartment phone number from a nearby public phone. On October 31, 1980, a week after the DEA agent's purchase of the heroin through Steward, defendants Porcelli and Guippone, previously convicted federal narcotics violators, were observed visiting the apartment, departing with a large closed paper bag and driving off with it. More visits to the Williams' apartment by Porcelli and Guippone followed.

Noting that Williams left his garbage in a green bag closed with a brown tape in the public corridor of his apartment to be brought out to the sidewalk for pick-up by the trash collector, DEA agents periodically removed some of the bags from the sidewalk, which yielded evidence identifying Williams and incriminating him and others. Among the items recovered from the trash was a note in Williams' handwriting dealing with a large-scale heroin transaction; records in code numbers of the financial accounts of various narcotics distributors, including payments and amounts owed; wrappers for mannite, a substance used to dilute heroin; traces of cocaine; and a record of large-scale narcotics sales. Pen registers ⁵ connected to the Williams' phone lines from outside his apartment recorded the making and phone numbers of calls to Porcelli, Steward and Harrison. Numerous persons were observed visiting the Williams' apartment, including Harrison, Porcelli, Guippone, defendants Paul Jenkins and Bernard Henderson (from whom DEA agents had purchased heroin).

On February 18, 1981, Judge Robert J. Ward of the Southern District of New York, upon the application of the DEA agents, approved in writing by Sanford M. Litvack, Assistant Attorney General of the United States, supported by an affidavit attesting to the foregoing information, authorized the installation of two listening devices ("bugs") in the living room (Apt. J) located downstairs in the Williams' duplex to record pertinent conversations "from the Over the next few months DEA agents recorded scores of conversations in the Williams' apartment which, with the agents' surveillance and evidence already uncovered, clearly established the existence of the above-described continuous narcotics enterprise and the participation in it of all of the appellants except Haynes. Porcelli and Guippone visited the Williams' apartment on numerous occasions, carried out packages and had discussions with Williams regarding purchases of heroin and cocaine, amounts of money paid and owed, and problems in obtaining payment from Harrison. On March 6, 1981, for instance, they visited Williams, received $30,000 from him, and arranged to supply him with three-quarters of a kilogram of cocaine. On March 16, 1981, Porcelli received $30,000 from Williams and agreed to hold an eighth of a kilo of heroin for him. Although Porcelli and Guippone suspended deliveries when they discovered that their car was being surveilled in mid-March 1981 after a visit to Williams, Porcelli on April 29, 1981, resumed discussions with Williams regarding methods of continuing narcotics sales on a more secure basis to avoid government surveillance. When Porcelli was arrested on May 31, 1981, he instructed his daughter to tell his son-in-law, "George" (Valenti) to "get rid of" the narcotics. There was evidence from which it could be inferred that Porcelli had kept a "stash" of narcotics at Valenti's house. When Guippone was arrested he had 300 rounds of ammunition in his car and he denied knowing anyone named Williams or Felix Davis. However, in his...