U.S. v. Wingate

• Decision Date: 04 August 1975
• Docket Number: D,1058,Nos. 1057,s. 1057
• Citation: 520 F.2d 309
• Parties: UNITED STATES of America, Appellee, v. Frank WINGATE and Kenneth Luke Smith, Appellants. ockets 75-1065, 75-1067.
• Court: U.S. Court of Appeals — Second Circuit

Page 309

520 F.2d 309

UNITED STATES of America, Appellee, v. Frank WINGATE and Kenneth Luke Smith, Appellants.

Nos. 1057, 1058, Dockets 75-1065, 75-1067.

United States Court of Appeals Second Circuit.

Argued May 28, 1975.

Decided Aug. 4, 1975.

Sheila Ginsberg, New York City (William J. Gallagher, Legal Aid Society, Federal Defender Services Unit, New York City, on the brief), for appellant Wingate.

Joyce Krutick Barlow, New York City (Barlow, Katz & Barlow, New York City, on the brief, Robert A. Katz, New York City, of counsel), for appellant Smith.

Thomas M. Fortuin, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S.D.N.Y., on the brief, Lawrence S. Feld, Asst. U. S. Atty., of counsel), for appellee.

Before CLARK, Associate Justice, ^* HAYS and MANSFIELD, Circuit Judges.

HAYS, Circuit Judge:

Frank Wingate and Kenneth Luke Smith appeal from judgments of conviction entered in the United States District Court for the Southern District of New York after a jury trial. Wingate and Smith were convicted of conspiring to distribute heroin in violation of 21 U.S.C. § 846 (1970). ¹ We affirm.

I.

In June, 1974, Marell Tyre, who had been arrested and charged with the importation of cocaine, agreed to cooperate with agents of the Drug Enforcement Administration. He called Frank Wingate from DEA headquarters in Miami and began to negotiate for the purchase of an eighth of a kilogram of heroin. Later in June Tyre came to New York and made further calls to Wingate about the price and quality of the heroin to be purchased. During one of these conversations, New York City police officer Robert J. Heyward, posing as an associate of Tyre, also spoke to Wingate. The two men discussed the price of the heroin and the method of payment. Wingate made several references to his "man," implying that he had to check with his "man" before making any final decisions.

The next day, as arranged in the telephone conversation, Wingate, Heyward, and Tyre met at the Crotona Bar in the Bronx. According to Heyward's testimony, Wingate said that he had missed his "man" at the appointed hour but that "(m)aybe my man will bring the package (of heroin) when he comes to the bar." Later, a man and a woman drove up in a green Toronado and Wingate went out to speak to them. He then told Heyward that he did not have the heroin but that he needed $3,100 of the agreed upon $6,200 purchase price in advance. He told Heyward that he would be back shortly with the drugs. Heyward paid him and Wingate drove off in the Toronado. About an hour later Wingate returned to the bar and repaid the $3,100, telling Heyward that he suspected that he was being followed and would have to postpone the deal. Wingate agreed to call Tyre to set up the deal sometime in the future.

Shortly thereafter Tyre called Wingate from Virginia and was told to come back to New York. When Tyre arrived at LaGuardia Airport, he called Wingate at the Crotona Bar and arranged to meet him at the airport for the purpose of negotiating the sale of heroin. Wingate told him that his "man" was with him and that he would bring his "man" to the airport. At 2:10 A.M. Wingate and Smith drove up to the American Airlines Terminal. Wingate got out and met with Tyre. He noticed two DEA agents seated in a car nearby and pointed them out to Tyre. Smith drove up and Wingate told him to drive by the agents to see what they were doing. Smith told Wingate to "hurry up." The two proceeded to case the area until they were arrested by DEA agents.

After his arrest, Smith was advised of his rights by Special Agent Korniloff of the DEA. He nevertheless told Korniloff that he had met Wingate that night at the Crotona Bar; that he had agreed to get heroin for Wingate to sell to a customer; and that he and Wingate had gone to LaGuardia to get the money. The next day Smith signed a statement containing information about his plans to obtain the heroin and identifying Wingate as his co-conspirator. ²

Before trial the district judge held a hearing on Smith's motion to suppress his statement on the ground that it was not made voluntarily. At the hearing Smith testified that he took Wingate to LaGuardia because Wingate had asked him for a ride. He testified further that he was a heroin addict and that he was suffering withdrawal pains when he was taken to DEA headquarters. He denied that he had conspired with Wingate to sell heroin and claimed that he signed the statement because of assurances from Government agents that if he did so he would be released. The Government witnesses denied that any such assurances were given, and they also testified that Wingate did not exhibit withdrawal symptoms or ask for medical attention at the time he was questioned. The Government also pointed out that in his original affidavit requesting a hearing, Smith said only that he was a cocaine user and that he was ill when brought to the courthouse; no claim of heroin addiction, with its severe withdrawal pains, was made until the hearing. The district judge denied the motion to suppress.

On December 24, 1974, the United States Attorney's office notified the district court by mail of its intention to introduce against Smith "written and/or oral statements" which he had made after his arrest. Included was a copy of the statement signed by Smith with a proposal that portions referring to Wingate be deleted to comply with Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The letter assured the court that any Government witnesses testifying about Smith's oral statements would be instructed to avoid mentioning anything which incriminated Wingate. The court subsequently approved the admission of the written statement with all mention of Wingate removed, see note 2 supra, and a defense motion for a severance was denied.

At the trial the Government introduced Smith's redacted statement, and Korniloff testified as to his oral statements. The court cautioned the jury to consider the statements only against Smith and not against Wingate. Smith did not testify. Wingate testified and admitted that he had attempted to get narcotics for Tyre from a man identified only as Ray. He also admitted accepting the $3,100 from Heyward at the Crotona Bar for purposes of purchasing narcotics. He denied that Smith was involved in the matter and claimed that he only asked him for a ride to the airport. Wingate's counsel offered to introduce Smith's suppression hearing testimony, but the Government objected that it had not cross-examined Smith at that time for trial purposes. Noting that Wingate had already "confess(ed) that he was in a narcotics conspiracy," the court sustained the objection. The case was submitted to the jury which found Wingate and Smith guilty of conspiracy.

II.

Wingate's primary argument is that the admission of Smith's oral ³ and written statements was reversible error. We disagree.

At the time the written statement was introduced and again in his charge to the jury, the district judge instructed the jury to consider those statements only in relation to Smith and to disregard them as to Wingate. The Supreme Court has indicated that such instructions, though ineffective against "powerfully incriminating" statements, may be effective in less severe circumstances:

"Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently. . . . It is not unreasonable to conclude that in many such cases the jury can and will follow the trial judge's instructions to disregard such information."

Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476 (1968).

See Frazier v. Cupp, 394 U.S. 731, 735, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969). As the district court held, cautionary instructions are ineffective under Bruton only where the extrajudicial statement admitted into evidence is "clearly inculpatory" as to the complaining co-defendant and is "vitally important to the government's case." United States v. Catalano, 491 F.2d 268, 273 (2d Cir.), cert. denied, 419 U.S. 825, 95 S.Ct. 42, 42 L.Ed.2d 48 (1974); United States v. Cassino, 467 F.2d 610, 623 (2d Cir. 1972), cert. denied, 410 U.S. 928, 93 S.Ct. 1363, 35 L.Ed.2d 590 (1973). Cf. Frazier v. Cupp, supra at 735, 89 S.Ct. 1420. We hold that since the statements admitted here, as redacted, were neither clearly inculpatory as to Wingate nor vitally important to the case against him, the court's cautionary instructions were sufficient to protect his sixth amendment rights under Bruton.

The written statement submitted to the jury made no mention of Frank Wingate. It dealt solely with Smith's efforts to obtain heroin from a Mr. Bumpsie. The testimony of Agent Korniloff as to oral statements made to him by Smith also excluded mention of Wingate. Korniloff quoted Smith as telling him that he had been asked by someone at the Crotona Bar to get heroin for a customer; that he told him that he could obtain it from Mr. Bumpsie; and that the two drove to the airport to arrange things.

In addition, whatever the importance of the statements to the case against Smith, they were far from vital to the case against Wingate. The jury had tape recordings of the telephone conversations in which Wingate discussed with Heyward and Tyre his plans to obtain heroin from his suppliers. It had the testimony of Heyward covering the meeting at the Crotona Bar and Wingate's references to his "man." It had testimony concerning Wingate's arrival at LaGuardia with Smith after telling Tyre that he would bring his "man" with him. Finally, it had what amounted to a confession by Wingate on the stand that he had indeed conspired to distribute heroin. ⁴

Wingate nevertheless argues that his conviction should be reversed because Smith's statements appear to incriminate him when they are read in light of other...