U.S. v. Thomas, Nos. 275
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
| Writing for the Court | CARDAMONE; JON O. NEWMAN; DAVIS |
| Citation | 757 F.2d 1359 |
| Parties | UNITED STATES of America, Appellee, v. Kenneth THOMAS, Guy Thomas Fisher, Ishmael Muhammed, Frank Alphonse James, Thomas Forman, Wallace Rice, James Wheelings, Elmer Thomas Morris, Jr., Defendants-Appellants. ocket 84-1010, 84-1024, 84- 1025, 84-1026, 84-1027, 84-1028, 84-1041 and 84-1023. |
| Docket Number | Nos. 275,276,278,279,281 and 348,D,277,280 |
| Decision Date | 11 March 1985 |
Page 1359
v.
Kenneth THOMAS, Guy Thomas Fisher, Ishmael Muhammed, Frank
Alphonse James, Thomas Forman, Wallace Rice, James
Wheelings, Elmer Thomas Morris, Jr.,
Defendants-Appellants.
84-1010, 84-1024, 84- 1025, 84-1026, 84-1027,
84-1028, 84-1041 and 84-1023.
Second Circuit.
Decided March 11, 1985.
Page 1361
William M. Kunstler, New York City (Robert H. Gombiner, Mark B. Gombiner, Ronald L. Kuby, New York City, of counsel), for appellant G.T. Fisher.
David A. DePetris, New York City (Genay Ann Leitman, Law Offices of David A. DePetris, New York City, of counsel), for appellant W. Rice.
Guy L. Heinemann, New York City, for appellant J. Wheelings.
Maurice H. Sercarz, New York City, for appellant K. Thomas.
Martin Geduldig, New York City, for appellant E.T. Morris, Jr.
Barry M. Fallick, New York City (Rochman, Platzer & Fallick, New York City, of counsel), for appellant I. Muhammed.
Frank A. Lopez, Brooklyn, N.Y., for appellant T. Forman.
James T. Moriarty, New York City, for appellant F.A. James.
Benito Romano, Asst. U.S. Atty., S.D.N.Y., New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Jess T. Fardella, Barry A. Bohrer, Asst. U.S. Attys., S.D.N.Y., New York City, of counsel), for appellee United States.
Before NEWMAN, CARDAMONE and DAVIS *, Circuit Judges.
CARDAMONE, Circuit Judge.
Eight defendants appeal from their convictions in the Southern District of New York on January 12, 1984 following a six-week trial before United States District Judge Milton Pollack and a jury. All defendants were tried under a 15 count indictment that charged narcotics, firearm and RICO violations of the most serious sort. Four of the defendants received life sentences and the other four were sentenced to terms ranging from 20 to 51 years. The violations of law charged against the various defendants briefly described are:
21 U.S.C. Sec. 846--conspiracy to violate narcotics laws
21 U.S.C. Sec. 848--operating continuing criminal narcotics enterprises
21 U.S.C. Sec. 841(a)(1)--possession with intent to distribute and distributing heroin
21 U.S.C. Sec. 844--unlawful possession of cocaine
18 U.S.C. Sec. 922(h)--unlawful receipt of a firearm
18 U.S.C. Sec. 924(c)--unlawfully carrying a firearm during the commission of a felony
18 U.S.C. Sec. 1962(c)--substantive RICO crimes --drug trafficking, murder, attempted murder and conspiracy to commit murder
18 U.S.C. Sec. 1962(d)--conspiracy to violate the racketeering laws.
18 U.S.C. Sec. 241--conspiracy to murder government witnesses.
The chart below identifies the statute violated and the count in the indictment on which the individual defendant was charged for that violation, whether the defendant was found guilty or not guilty, and the sentence he received.
INDIVIDUAL DEFENDANTS
---------------------------------------------------------------
Kenneth Guy T. Frank Ishmael
Statutes Thomas Fisher James Muhammed
Violated (Counts) (Counts) (Counts) (Counts)
---------------------------------------------------------------
21 U.S.C. (1) guilty (1) guilty (1) guilty (1) guilty
Sec. 846
---------------------------------------------------------------
21 U.S.C. (2) guilty (3) guilty (5) guilty
Sec. 848
---------------------------------------------------------------
21 U.S.C. (7) guilty (8) guilty
Sec. 841(a)(1)
---------------------------------------------------------------
21 U.S.C. (9) guilty
Sec. 844
---------------------------------------------------------------
18 U.S.C. (10) Guilty
Sec. 922(h)
---------------------------------------------------------------
18 U.S.C. (13) guilty (13) guilty (13) guilty (13) guilty
Sec. 1962(d)
---------------------------------------------------------------
18 U.S.C. (14) not (14) guilty (14) guilty (14) not
Sec. 1962(c) guilty guilty
---------------------------------------------------------------
18 U.S.C. (15) not (15) not (15) not
Sec. 241 guilty guilty guilty
---------------------------------------------------------------
Sentence 20 years Life Life Life
$25,000 $150,000 $135,000 $62,500
fine fine fine fine
---------------------------------------------------------------
INDIVIDUAL DEFENDANTS
---------------------------------------------------------------
Wallace Thomas James Elmer
Statutes Rice Forman Wheelings Morris, Jr.
Violated (Counts) (Counts) (Counts) (Counts)
---------------------------------------------------------------
21 U.S.C. (1) guilty (1) guilty (1) guilty (1) guilty
Sec. 846
---------------------------------------------------------------
21 U.S.C. (4) guilty (6) not
Sec. 848 guilty
---------------------------------------------------------------
21 U.S.C. (8) guilty (11) guilty
Sec. 841(a)(1)
---------------------------------------------------------------
18 U.S.C. (12) guilty
Sec. 924(c)
---------------------------------------------------------------
18 U.S.C. (13) guilty (13) guilty (13) guilty (13)guilty
Sec. 1962(d)
---------------------------------------------------------------
18 U.S.C. (14) guilty (14) not (14) guilty (14) guilty
Sec. 1962(c) guilty
---------------------------------------------------------------
18 U.S.C. (15) not (15) not (15) not (15) not
Sec. 241 guilty guilty guilty guilty
---------------------------------------------------------------
Sentence Life 35 years 50 years 51 years
$125,000 $37,500 $50,000 $50,000
fine fine fine fine
Page 1362
Although a large number of issues are raised, only a few merit discussion.
I. FACTS
According to the proof at trial, all the defendants and several co-conspirators (including Leroy "Nicky" Barnes, James Fisher and Joseph Hayden) were associated in a huge narcotics ring run by a governing body called the "Council." In existence for 12 years--from 1972 to 1983--the Council purchased bulk quantities of pure heroin. Its members were Barnes, Hayden, James, Guy Fisher, Rice, Muhammed and Forman. The Council's purpose was to pool the members' resources, share narcotics sources, allocate sales territories, adjudicate disputes among members and handle the narcotics business of jailed members. Each Council member had a separate narcotics business and employed subordinates to dilute and distribute the heroin in his territory. The Council also dealt in cocaine, PCP, and marijuana. Council members routinely approved the murders of those suspected of being potential witnesses against the Council or of people who had been insubordinate.
The three defendants who were not members of the Council--Wheelings, Morris and Thomas--were connected to the Council's business. Wheelings, along with Walter Centano who later was a government witness, was a member of the "crew" of "mill workers" in Guy Fisher's narcotics business, and eventually became Fisher's partner. Elmer Morris and Kenneth Thomas were also members of Fisher's "crew." Morris, a former Tuckahoe, New York police officer, was responsible for providing the Council with information about suspected police informants.
II. ANONYMOUS JURY
A. Impanelling The Jury
Prior to trial the government moved that the voir dire be conducted without disclosing the names, addresses, or places of employment of prospective jurors. In support of its motion, the government submitted an affidavit of an Assistant United States Attorney (AUSA) that requested that jurors be kept anonymous to protect them either from retaliation or the fear of retaliation. The affidavit stated that jurors might reasonably fear "harassment, retaliation or worse" from the defendants who, it was claimed, were responsible for the murder of several individuals that the Council believed were government witnesses. The affidavit asserted that the Council had agreed to pay a million dollars for the murder of government witness Nicky Barnes. The government also cited the widespread notoriety the case had received and the serious charges the defendants faced, which left them "little to lose by tampering with witnesses or obstructing the trial." When papers in opposition to the motion were filed, the court heard oral argument. After argument, the government filed an additional affidavit from a different AUSA, which stated that Nicky Barnes had informed the affiant that defendant
Page 1363
Guy Fisher had bribed a juror at a prior trial at which Fisher had obtained a hung jury. The affiant alleged that a reliable informant told him that Fisher had paid the juror $25,000 to obtain a hung jury and that Fisher had attempted to have witnesses killed. Fisher's counsel filed an answering affidavit that labelled the jury tampering allegations "hogwash," and requested a hearing on this issue, which was denied.The district court later decided that the jury should be anonymous and sequestered, and on voir dire instructed prospective jurors not to reveal their names, addresses or places of business, although he did ask those from the Bronx and Manhattan what part of the county they were from. Judge Pollack explained to the jurors that he was keeping their identity anonymous to prevent media curiosity from interfering with their sworn duty to consider only the evidence when deciding the case.
B. Impact on Presumption of Innocence
Appellants claim that the impanelling of an anonymous jury deprived them of due process by destroying the presumption of innocence. They argue that the impanelling of an anonymous jury always and in all cases destroys that presumption and robs defendants of due process. Adoption of such a per se rule is rarely advisable in due process analysis.
Strictly speaking the "presumption of innocence" is not a presumption but an assumption that defendant is innocent of any unlawful conduct absent facts to the contrary. The phrase more accurately refers to the burden of proof cast upon the prosecution of producing evidence of defendant's guilt and then persuading the jury of that guilt...
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U.S. v. Cusumano, Nos. 94-8056
...Second Circuit has held that a dog sniff may not be used to detect narcotics through the door of a residence. United States v. Thomas, 757 F.2d 1359, 1367 (2d Cir.) ("With a trained dog police may obtain information about what is inside a dwelling that they could not derive from the us......
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United States v. Aquart, No. 12-5086-cr
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State v. Young, No. 58399-4
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U.S. v. McClain, No. 04-5887.
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