U.S. v. Watson

• Decision Date: 30 April 1979
• Docket Number: D,Nos. 439,491,513,s. 439
• Citation: 599 F.2d 1149
• Parties: UNITED STATES of America, Appellee, v. Aaron WATSON, Robert Whitley, and John Muse, Appellants. ocket 78-1296-98.
• Court: U.S. Court of Appeals — Second Circuit

Page 1149

599 F.2d 1149

UNITED STATES of America, Appellee, v. Aaron WATSON, Robert Whitley, and John Muse, Appellants.

Nos. 439, 491, 513, Docket 78-1296-98.

United States Court of Appeals Second Circuit.

Argued Jan. 10, 1979.

Decided April 30, 1979.

Harvey L. Greenberg, New York City, for appellant Whitley.

David J. Gottlieb, The Legal Aid Society, Federal Defender Services Unit, New York City, for appellant Muse.

Robert I. Weiswasser, Brooklyn, N. Y., for appellant Watson.

Harvey J. Golubock, Asst. U. S. Atty., E. D. N. Y., Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., E. D. N. Y., Harvey M. Stone, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appellee.

Before FRIENDLY, SMITH and OAKES, Circuit Judges.

OAKES, Circuit Judge:

All three appellants claim violation of their speedy trial rights, restriction of the scope of their cross-examination of a key Government witness, and deprivation of a fair trial because of the dramatic behavior of the witness. They appeal from convictions after a jury trial before the United States District Court for the Eastern District of New York, Charles P. Sifton, Judge. The indictment was in one count charging a conspiracy between March and November of 1971 to distribute heroin and possess it with the intent to distribute it, in violation of 21 U.S.C. §§ 174, 812, 841(a)(1), and 846. Appellant Watson was sentenced to nine years' imprisonment and a ten-year special parole term, Whitley to six years' imprisonment and a six-year special parole term, and Muse to five years' imprisonment and a five-year special parole term. We affirm the convictions of appellants Watson and Whitley but reverse the conviction of appellant Muse with instructions to dismiss his indictment.

The Government's proof at trial traced the history of a narcotics "family" from 1966 through 1971. What started as the "Aiken organization" was taken over by Alvin Bynum. See generally United States v. Bynum, 485 F.2d 490, 94 S.Ct. 2598, 41 L.Ed.2d 209 (2d Cir. 1973), Vacated and remanded, 417 U.S. 903 (1974). "Dickie" Diamond, a principal Government witness at appellants' trial, worked with both Aiken and Bynum and testified to pre-conspiracy heroin purchases by appellants Watson and Muse. MacArthur Egister, another Government witness, testified to pre-conspiracy deliveries of heroin to Muse for Diamond.

The conspiracy began after Diamond was arrested for murder and jailed in February 1971. According to Egister, Muse gave Egister money to obtain heroin from Bynum, and Bynum sent Egister to see "his man," appellant Watson, at the 432 Club on Nostrand Avenue in Brooklyn. Watson instructed Egister to pay appellant Whitley, who was at the bar, and Watson told Whitley to count the money which he did in the club's bathroom. Whitley asked Egister for the keys to his car, left the bar with them, returned shortly and told Egister that the car was "ready." Egister went out to his car where he found the package of heroin that he subsequently delivered to Muse. Several similar transactions took place in which Muse bought from Egister who in turn received the Bynum heroin from Watson and Whitley. Muse usually bought one-eighth of a kilogram for $4,500 and the sales took place two or three times a day several days each week. Egister's testimony was corroborated by Francis DiCarlo, Special Agent of the Drug Enforcement Administration. DiCarlo conducted surveillance of the 432 Club on numerous occasions; he observed Watson at the club on approximately ten of them and almost always observed Whitley at the club. Several times DiCarlo saw Egister and Whitley enter the club together; Whitley would exit the club alone, drive away and return in Egister's car, and reenter the club; and Egister would then leave the club in his car.

When Diamond was released on bail in May of 1971 he met with Watson and Bynum. Bynum told Diamond that Watson had become one of the former's chief lieutenants. Later, when Diamond attempted to obtain heroin from Bynum, Bynum sent him to Watson who supplied Diamond with it. Diamond also testified to a meeting among himself, Egister, Watson, and Muse which resulted in Muse's purchasing two-eighths of a kilogram for $9,000. Diamond testified to another transaction involving Watson and Whitley that occurred in the autumn of 1971 during a dock strike. And Egister testified that at the time of a Muhammad Ali fight shown at the Carroll Theater on Utica Avenue in Brooklyn on November 19, 1971, he complained to Bynum about the quality of the heroin that he was receiving; when Watson discovered the complaint, he told Egister that he could take or leave the heroin.

Watson's case included the testimony of three witnesses, one of whom said that she saw Watson working on Alvin Bynum's house, another of whom testified that Watson was the superintendent of a building at 959 Park Place and was a contractor (the testimony was offered to show that the "work" that Watson did for Bynum was related to contracting, not narcotics), and a third who said that she had been sexually molested by Diamond in 1970 and that Watson and Diamond had argued over the incident. Muse testified in his own behalf that, although he had distributed heroin for Diamond and Egister in 1969 and 1970, he stopped purchasing from them around Christmas of 1970, after an argument about synthetic heroin, and he purchased or transported no heroin whatsoever in 1971. Whitley did not testify and presented no witnesses.

I. Speedy Trial Claim.

Appellants argue that the preindictment and postindictment delays in this case violated their speedy trial rights specifically, their due process right not to be prejudiced by preindictment delay and the Sixth Amendment right to a speedy trial and also argue that the statute of limitations itself was exceeded because the Government waited for an unreasonable length of time before unsealing the indictment. For the reasons that follow, we agree with appellant Muse that the delay here exceeded the period of limitations as to him and requires the dismissal of his indictment, but we are unpersuaded by the other objections.

The indictment in this case was returned on June 1, 1976, that is to say, it was "found" five months within the five-year period required under 18 U.S.C. § 3282, ¹ for it charged Watson and Muse with conspiracy between March and November, 1971. It named two "John Doe" conspirators, one of whom was discovered to be Whitley only at a later date. The court ordered the indictment to be sealed on its return and issued bench warrants for the four alleged conspirators. The court unsealed the indictment in late September of 1977, when Watson and Muse were arrested a date almost sixteen months after it had been returned and almost six years from the end of the alleged conspiracy. Whitley was not located or arrested until early December 1977. Trial took place in April 1978.

Appellants argue that the fifty-five-month period of time elapsing between November of 1971 and the filing of the indictment added together with the sixteen-month period during which the indictment was sealed violated their rights to a speedy trial.

We first address the complaint that the delay in filing the indictment violated appellants' due process rights. In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the Supreme Court emphasized that the statute of limitations should be the primary protection against preindictment delay. The Court did suggest however, that if a defendant showed "substantial prejudice" and that the Government intentionally delayed "to gain tactical advantage over the accused," due process might be violated. Id. at 324, 92 S.Ct. at 465. In United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), the Court explained that a good faith investigative delay, even if it causes some prejudice, does not violate the Due Process Clause. Under these standards, appellants' argument must fail.

The Government's affidavits showed that Diamond did not begin his cooperation with the Government until 1974 during an investigation involving the Frank Matthews narcotics organization. It was as a result of the Matthews investigation and ensuing trial, which lasted from early August until October of 1975, that the Government developed information concerning Watson's narcotics activities. It was also not until the conclusion of the Matthews trial that the Assistant United States Attorney who had tried that case and who was handling the Watson investigation interviewed Egister. (The office of the United States Attorney had concluded that to place a different attorney in charge of the Watson investigation would be inefficient and, indeed, would cause delay.) Both Diamond and Egister testified about Watson and his associates before a grand jury in the Eastern District of New York in mid-March of 1976, and the Government was attempting to obtain additional corroborative witnesses until the indictment was handed down in June. The district court found that "on balance, considering the reasons for the delay, I find that there was a kind of (good) faith investigative justification for the delay in returning the indictment." In light of the circumstances just described, we cannot fault his finding. Accordingly, we hold that appellants have failed to prove a violation of their due process rights by any preindictment delay.

More troubling, however, is the additional sixteen-month delay between the sealing and unsealing of the indictment. The Government concedes that it was aware of the location of appellant Muse during a substantial portion of the sixteen months. But, it argues, because it did not wish to tip off the other defendants, the Government included Muse in the sealed indictment without seeking a separate indictment. Muse was not arrested until appellant Watson was arrested. With respect to Watson, although he was not arrested until September of 1977, the Government had...