United States v. Aiken

• Decision Date: 20 February 1967
• Docket Number: No. 264,Docket 30792.,264
• Citation: 373 F.2d 294
• Parties: UNITED STATES of America, Appellee, v. Leonard AIKEN, Charles Cole, Leroy Davis and Clifford Rogers, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

373 F.2d 294 (1967)

UNITED STATES of America, Appellee, v. Leonard AIKEN, Charles Cole, Leroy Davis and Clifford Rogers, Appellants.

No. 264, Docket 30792.

United States Court of Appeals Second Circuit.

Argued January 6, 1967.

Decided February 20, 1967.

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Robert G. Morvillo, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty. for Southern District of New York, and Stephen F. Williams and John E. Sprizzo, Asst. U. S. Attys., New York City, on the brief), for appellee.

James J. Hanrahan, New York City, for appellant Leonard Aiken.

Theodore Krieger, New York City (William C. Chance, Jr., New York City, on the brief), for appellant Charles Cole.

John R. Sanders, New York City, for appellant Leroy Davis.

Irwin Klein, New York City, for appellant Clifford Rogers.

Before LUMBARD, Chief Judge, and FRIENDLY and HAYS, Circuit Judges.

LUMBARD, Chief Judge:

The appellants Leonard Aiken, Leroy Davis, and Clifford Rogers were convicted after a lengthy trial before Judge Cannella and a jury in the Southern District of New York of conspiracy to violate 42 Stat. 596 (1922), as amended, 21 U.S.C. § 173, and 70 Stat. 570 (1956), 21 U.S.C. § 174, prohibiting the knowing receipt, concealment, or sale of any narcotic drug illegally imported into the United States. Appellant Davis was also convicted on one count charging substantive violations of 21 U.S.C. §§ 173, 174. The appellant Charles Cole, as to whom the conspiracy count was dismissed at the close of the trial, was convicted of substantive violations on two other counts. Appellant Aiken was sentenced to 25 years imprisonment and a $20,000 fine, Cole to 10 years and a $10,000 fine, Davis to 15 years and a $25,000 fine, and Rogers to 6 years and a $5,000 fine.¹

The evidence at trial, most of it by accomplices, viewed most favorably to the government as it must be upon appeal from convictions, showed that appellant Aiken was the head and appellant Davis the second in command of an organization engaged in large-scale distribution of narcotics in New York City during 1963 and 1964. One Edward Walker testified that between January and March 1963 he helped Davis pick up two foot lockers of narcotics in the Bronx while Aiken maintained surveillance, several times helped Aiken or Davis deliver narcotics, and on Aiken's instructions carried narcotics given him by Davis to an apartment in Chicago. Henderson, one of the severed defendants, testified that he approached Aiken in March 1963 to buy narcotics and was introduced to Davis, who sold him some narcotics and then introduced him to the defendant Bivens, who sold him narcotics through the summer of 1963. In September 1963, Henderson stated, he bought a half ounce of heroin from Davis and resold it to an individual who turned out to be an undercover agent of the Bureau of Narcotics. This testimony was corroborated by the agent, who saw Henderson meet Davis at a bar on Eighth Avenue, leave with him for a few minutes, and return with the heroin, and formed the basis for Davis' conviction on count 2. Henderson continued to obtain narcotics from Aiken and Davis through early 1964.

Spratley, another severed defendant, testified that he purchased narcotics from Davis on three occasions between March and May 1964, the last of which was charged in count 5, of which Davis was acquitted. Scott, the third severed defendant, testified that in May 1964 he applied to Aiken "to deal in some narcotics," was given some money and introduced to Davis, and after two months received some narcotics from Davis. A few days later, just after arranging to sell an undercover agent over a half kilo of heroin to be obtained from Davis, Scott was arrested. None of the defendants testified, but they called witnesses to attack the accomplices' credibility and Scott's account of receiving money from Aiken.

The evidence linking appellant Rogers to the conspiracy was furnished by one witness, John Shands. Shands arrived in New York City in April 1964, and began to deliver narcotics and collect "approximately $150" for Rogers two or three times a week. In July 1964 Rogers entered a bar on Amsterdam Avenue with a bag, emerged without it, and went with Shands to a bar on St. Nicholas Avenue where they met Davis, who told them that a package of narcotics (which they later bagged and distributed) was hidden over the sun visor of their car. In September 1964, after Rogers told Shands that he was going to obtain narcotics that night, they met Davis in a bar. Rogers tried on Davis' coat, and after leaving the bar removed a package of narcotics from his pocket. Shands also testified that on one occasion between April and October 1964 he diluted narcotics for Davis.

Most of the testimony regarding appellant Cole came from Henderson. Henderson purchased narcotics from Cole during April through August 1963. (As Judge Cannella noted in dismissing the conspiracy count against Cole, Henderson's testimony at this point was expected to link Cole to Aiken.) On April 15, 1964, Henderson, now acting as an informant, introduced Cole to an undercover agent, paid Cole $500 obtained from the agent, and was told to look under the steps at a named address, where the agent found a package of heroin. This transaction and a similar one effected on April 23, 1964, both corroborated by the undercover agent and an observing agent, were the subject of the two substantive counts of which Cole was found guilty. Cole's defense was designed to suggest that Henderson himself planted the narcotics on both occasions.

We shall consider first the contentions, made or adopted by all appellants, that: (1) the witness Shands' assertion of his privilege against self-incrimination produced reversible error; (2) the witness Walker was improperly allowed to assert his privilege during cross-examination; (3) the trial court failed to explain the presumption of knowledge of illegal importation from proof of possession of a narcotic drug established by 21 U.S.C. § 174; (4) the trial court failed to charge that the jury should acquit if it found multiple conspiracies; and (5) the charge erroneously defined reasonable doubt.

Appellant Cole also argues that the substantive counts against him should have been severed after dismissal of the conspiracy count as to him, and that he should have been allowed to reopen the case just before summations to present a fresh witness. Appellant Rogers urges that there was insufficient evidence to support his conviction on the conspiracy count.

I.

Appellants' first contention is that the government's calling and questioning of Shands led to reversible error. Shands asserted his privilege against self-incrimination twice during his first day of testimony, both times when asked what he delivered for Rogers, and to numerous questions he responded that he did not remember. On the next day of trial, he interposed his privilege to the first six questions asked. The government was granted a continuance, during which it requested and obtained immunity for Shands under 70 Stat. 574 (1956), 18 U.S.C. § 1406. Shands thereupon gave the responsive testimony that we have summarized, and was subjected to searching cross-examination.

Appellants argue that reversal is required both by the natural inference from Shands' assertion of the privilege, citing United States v. Maloney, 262 F.2d 535 (2 Cir. 1959), and by the alleged fact that his hesitation made him appear afraid of them. But as the Supreme Court stated in Namet v. United States, 373 U.S. 179, 186-187, 83 S.Ct. 1151, 1154, 10 L.Ed.2d 278 (1963), a witness' assertion of his privilege has been held reversible error only where "the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege," as in United States v. Maloney, supra, or where "a witness' refusal to answer added critical weight to the prosecution's case in a form not subject to cross-examination." See Douglas v. State of Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). Here the Assistant United States Attorney stated on the record that he had "no inkling" that Shands would invoke his privilege. Moreover, appellants were not prejudiced by inferences not subject to cross-examination, because after Shands received immunity he gave direct testimony against Rogers and Davis and was extensively cross-examined. Finally, any apparent fear of appellants on Shands' part seems quite immaterial in view of the fact that he did testify against appellants.

Appellants also complain that Walker was allowed to assert his privilege not to answer questions put to him on cross-examination regarding federal and state narcotics charges pending against him. As Walker had already admitted the pendency of the charges and a prior conviction, Judge Cannella did not abuse his discretion by sustaining these assertions of the privilege. United States v. Kahn, 366 F.2d 259, 265 (2 Cir.), cert. denied, 385 U.S. 948, 87 S.Ct. 324, 17 L.Ed.2d 226 (1966); United States v. Irwin, 354 F.2d 192, 198 (2 Cir. 1965), cert. denied, 383 U.S. 967, 86 S.Ct. 1272, 16 L.Ed.2d 308 (1966).

Appellant Aiken argues that the adjournment of his preliminary hearing for over a month, after which he was indicted, violated his rights. However, there is no showing that the adjournments improperly affected his ability to defend against the charges, and the indictment sufficed to establish probable cause for detention (or, in his case, requiring bail). United States v. Heap, 345 F.2d 170 (2 Cir. 1965). The remaining contentions of appellants Aiken and Davis, except those directed at the trial court's charge, are frivolous.

Appellants' first attack on the court's charge is that after outlining the elements of illegal importation and knowledge by the defendants of illegal importation under 21 U.S.C. § 174, the trial court read to the jury the paragraph of that section providing that possession of a...