U.S. v. Young

Citation745 F.2d 733
Decision Date17 September 1984
Docket Number900 and 899,Nos. 897,931,932,D,879,s. 897
Parties16 Fed. R. Evid. Serv. 358 UNITED STATES of America, Appellee, v. Steven YOUNG, a/k/a "Train", Alliebe Afflic, a/k/a "Alliebe Myers", Lloyd Ward a/k/a "Omar", a/k/a "Amar", a/k/a "A", Tangee Afflic, Charles Caviness, a/k/a "Caddy", a/k/a "Catty", and Freddie Myers, a/k/a "New York Freddie", Defendants-Appellants. ockets 83-1364 to 83-1367, 83-1379 and 83-1393.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Marc J. Gottridge, Asst. U.S. Atty., S.D.N.Y. (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Barry A. Bohrer, Asst. U.S. Atty., New York City, of counsel), for appellee.

George R. Goltzer, New York City (Goltzer & Adler, New York City, of counsel), for defendant-appellant Young.

James M. Horan, Oakland Gardens, N.Y. (Herald Price Fahringer, New York City, of counsel, Diarmuid White, Legal Asst., on the brief), for defendants-appellants Alliebe Afflic and Tangee Afflic.

Raymond G. Leffler, New York City, for defendant-appellant Ward.

Lawrence F. Ruggiero, New York City, for defendant-appellant Caviness.

Herald Price Fahringer, New York City (Mark F. Pomerantz and Anne C. Feigus, New York City, of counsel), for defendant-appellant Myers.

Before MANSFIELD, NEWMAN and PRATT, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

Steven Young, Alliebe Afflic, Lloyd Ward, Tangee Afflic, Charles Caviness, and Freddie Myers appeal from judgments of Judge Sand sentenced Myers to 40 years' imprisonment and a $100,000 fine; Ward to 15 years' imprisonment and a $10,000 fine; Young and Caviness each to 10 years' imprisonment and a $5,000 fine; Alliebe Afflic to 7 years' imprisonment and a $5,000 fine; and Tangee Afflic to 18 months' imprisonment. With the exception of Tangee Afflic, who is at liberty on bail pending this appeal, appellants have already begun serving their sentences.

conviction entered on jury verdicts after a five week trial before Judge Sand in the District Court for the Southern District of New York. Each appellant was convicted of conspiring to distribute heroin and to possess heroin with intent to distribute in violation of 21 U.S.C. Sec. 846 (count one). In addition, Myers was convicted of conducting a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848 (count two), and Tangee Afflic was convicted of receiving and possessing an unregistered automatic rifle in violation of 26 U.S.C. Secs. 5861(d) and 5871 (count three). The jury also rendered a special verdict on the continuing criminal enterprise count, finding that approximately $3,000,000 of Myers's assets, including his house, were subject to forfeiture under 21 U.S.C. Sec. 848(a)(2).

On appeal defendants raise a myriad of issues, the most significant of which are (1) whether the Sec. 846 conspiracy charged against Myers in count one was an eligible predicate offense for the Sec. 848 continuing criminal enterprise charged against him in count two; (2) whether a search of Tangee Afflic's apartment was supported by probable cause where it was triggered by a signal from a police dog indicating (erroneously) that narcotics were present; (3) whether a warrant authorizing the search of Myers's house specified the "things to be seized" with sufficient particularity to satisfy the fourth amendment; (4) whether the extensive use of expert testimony by agents involved in the investigation of this case deprived appellants of a fair trial; (5) whether the evidence was sufficient to support the conspiracy convictions of Young, Ward, Caviness, and Alliebe and Tangee Afflic; and (6) whether the evidence was sufficient to sustain the forfeiture verdict as to Myers's home.

For the reasons set forth below, we affirm the convictions on all counts except for the conspiracy count against Tangee Afflic, which was not supported by sufficient evidence. However, we agree with Myers that there was insufficient evidence to support the jury's special verdict as to the forfeiture of his home, and we therefore vacate the corresponding portion of the judgment of forfeiture entered by the district court.


This prosecution was the product of a 10 month investigation by the federal Drug Enforcement Administration (DEA) with the assistance of the police departments of New York City, the City of New Rochelle, the City of Mount Vernon, and Westchester County. According to an affidavit filed by Wilfred Garrett, the DEA agent who supervised the case, the investigation began in the spring of 1982, when the DEA obtained information from a variety of sources, including a confidential informant, a telephone book confiscated from an arrested heroin dealer, and telephone company records, suggesting that Myers, who had previously been convicted of federal narcotics violations, was involved in the trafficking of substantial quantities of heroin. Acting on this information, the DEA initiated surveillance of Myers at his home at 205 Bradley Avenue in Mount Vernon, and his office at 1650 Broadway in Manhattan.

After eight months of wider surveillance had implicated Caviness, Young, and Alliebe Afflic, among others, and after the DEA had obtained corroboration from several other confidential informants, the government obtained an order from the district court, dated January 6, 1983, authorizing the interception of telephone calls to and from two telephone numbers at Myers's Mount Vernon home for 30 days. On February 4, 1983, that order was extended for an additional 30 days and broadened to include the two telephones at

Myers's Manhattan office. Numerous calls were intercepted and recorded, which, together with intensified surveillance, implicated Ward and Tangee Afflic, among others. The investigation culminated in a series of searches in early March 1983, all but one of which were conducted pursuant to warrants.

A. The Government's Case.

As Judge Sand noted toward the end of this five week trial, all of the evidence against defendants was circumstantial. Because of this, and because each appellant has in one form or another challenged the sufficiency of the evidence, we find it necessary to review the government's case in considerable detail.

1. Overview.

The theory of the prosecution was that Myers headed a large scale operation that was involved primarily in the distribution of heroin on a retail basis in Harlem. Ward was depicted as Myers's "principal business partner". Caviness and Young were portrayed as "lieutenants" in charge of the day-to-day affairs of the business. Keith Anderson, who was not tried for reasons unrelated to this appeal, allegedly operated a "mill" at which relatively pure heroin was "cut", i.e., diluted for street-level distribution. Alliebe Afflic, Myers's common-law wife, and her two daughters, Tangee and Valerie, the latter of whom was acquitted, were allegedly "couriers" who delivered packages of heroin to street-level pushers. The remaining defendant at the trial, William Bivens, was supposedly one such pusher, but he, too, was acquitted by the jury.

2. The March 6, 1983 Searches and Arrests.

Much of the evidence introduced by the government at trial was obtained on March 6, 1983 in a series of searches at seven locations belonging to or associated with the defendants. On that day, Myers's house, his and Anderson's offices, Ward's house, and the apartments of Young and Anderson were all searched pursuant to warrants; Margaret Nicks, Caviness's common-law wife, consented to a search of her apartment.

(a) The Search of Myers's House and the Arrests of Myers and Alliebe Afflic.

At Myers's lavishly furnished home in Mount Vernon, agents discovered evidence of great wealth. An astounding amount of cash was seized: $757,940 was found stuffed in a large black suitcase in the attic crawlspace; $580,100 was found in a safe in a master bedroom closet; $40,000 was found in a woman's handbag in another master bedroom closet; and $1200 was found on top of a dresser in that room. In all, $1,379,240 in cash was confiscated.

An equally astounding amount of jewelry, valued at $1,371,105, was also seized. So were two Mercedes-Benz automobiles and 29 fur coats bearing the embroidered names or initials of Myers and Alliebe Afflic.

In addition to two shotguns, agents also discovered numerous photographs and documents that linked Myers and Alliebe Afflic with co-defendants Ward, Young, Caviness, and Anderson. Among the documents was a bill reflecting the sale of $75,000 worth of jewelry by Myers to Anderson and a certificate of title to a Jeep registered to Young.

Myers and Alliebe Afflic were present at the time of the search and were placed under arrest pursuant to a warrant. After they were advised of their constitutional rights, they were taken to a DEA office for processing, along with the other five defendants arrested that day. Upon encountering co-defendant Ward, Myers remarked, "You have my whole crew here. It looks like we are going to have a party here tonight."

(b) The Search of the Offices of Myers and Anderson.

Numerous documents and other exhibits were seized during the search of Suite 1210

at 1650 Broadway, the location of Myers's purported businesses: Rissa Chrissa Entertainment Consultants, Inc. and Myers & Associates Consulting, Inc. Papers seized there established that Myers was Rissa Chrissa's "executive vice president" and owned 50 percent of its stock. Business cards there indicated that Anderson, who had an office in the Rissa Chrissa suite, was a Rissa Chrissa "representative". Other documents showed that Myers leased an apartment at Harmon Cove Towers in Secaucus, New Jersey, at a monthly rental of $1,520, paid for that apartment from the checking account of Myers & Associates Consulting, and took weekly salaries of $650 from Rissa Chrissa and $500 from Myers & Associates Consulting. In Myers's desk agents also found an electronic device for the detection of tape recorders and electronic...

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