United States v. Floyd, 372

• Citation: 496 F.2d 982
• Decision Date: 25 April 1974
• Docket Number: No. 372,73-1969,Dockets 73-1957,73-2009 and 73-2225.,376 and 378,372
• Parties: UNITED STATES of America, Appellee, v. Michael Reeves FLOYD et al., Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

496 F.2d 982 (1974)

UNITED STATES of America, Appellee, v. Michael Reeves FLOYD et al., Appellants.

Nos. 372, 376 and 378, Dockets 73-1957, 73-1969, 73-2009 and 73-2225.

United States Court of Appeals, Second Circuit.

Argued November 8, 1973.

Decided April 25, 1974.

COPYRIGHT MATERIAL OMITTED

Frederick P. Hafetz, New York City (Goldman & Hafetz, New York City, on the brief), for appellant Floyd.

Harvey A. Silverglate, Boston, Mass. (Norman S. Zalkind, Boston, Mass., on the brief), for appellant Lesavoy.

Jesse Berman, New York City, for appellant Miller.

John J. Kenney, Asst. U. S. Atty., New York City (Paul J. Curran, U. S. Atty., and S. Andrew Schaffer, Asst. U. S. Atty., New York City, on the brief), for appellee.

Before WATERMAN, FRIENDLY and TIMBERS, Circuit Judges.

TIMBERS, Circuit Judge:

Appellants Floyd, Lesavoy and Miller appealed from judgments of conviction entered upon jury verdicts after a seven day trial in the Southern District of New York, Charles M. Metzner, District Judge, finding the three appellants guilty on one count of conspiring to possess and distribute 1500 pounds of hashish,¹ in violation of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) and 846 (1970), and finding Lesavoy guilty on a second count of possessing 1099 pounds of hashish with intent to distribute it, in violation of the same substantive provisions of the Act.²

Of the numerous claims of error raised on appeal by appellants Floyd and Miller, we find the following to be the principal ones: (1) Floyd claims that there was no proof of an overt act in furtherance of the conspiracy prior to his withdrawal, and that the court erred in its charge on conspiracy; (2) Miller claims that certain of his incriminating statements were erroneously admitted in evidence because he was not given sufficient Miranda warnings, and that his sentence was based on improper considerations; and (3) both appellants claim that the court erred in discharging a juror and replacing him with an alternate part way through the trial. Other subordinate claims of error are also raised.

We affirm.

I.

In view of the issues raised on appeal, the following summary of the events in late October and early November 1972 which culminated in the arrest of appellants is believed necessary to an understanding of our rulings on those issues.

On October 30, a government informant introduced Special Agent Hochman, of the Bureau of Narcotic and Dangerous Drugs (BNDD), to one James Krell at the latter's home in New Jersey. The purpose of the introduction was to enable Hochman, who was acting in an undercover capacity, to purchase hashish from Krell. Although the meeting had been arranged for the purchase of three pounds of hashish, Hochman told Krell that he was interested only in a larger amount. Krell said that he had access to 900 pounds of hashish located in Manhattan which was under the control of one Peter Axelrod and appellant Floyd. At the conclusion of this meeting, Hochman and Krell agreed that any sale would take place in a Manhattan hotel, but that Krell would do nothing until he was assured of payment.

Later that evening after Hochman had departed, Krell called Floyd and informed him that he had a buyer for large quantities of hashish. Floyd agreed to arrange a meeting with "the people in New York" and to call Krell back.

On the following evening, October 31, Floyd picked up Krell and drove him from his home in New Jersey to 270 Riverside Drive in Manhattan where they met Axelrod in the latter's apartment. There they discussed the terms of the sale of hashish to Hochman. Floyd then drove Krell back to his home in New Jersey.

Early the following morning, November 1, at 12:40 A.M., Hochman called Krell at his home.³ Krell stated that the price for the hashish would be $450 per pound and that his supplier wanted to sell only 100 pounds. The two agreed, however, that Hochman would bring enough money to buy 500 pounds; that Krell would see what he could do; and that Hochman would go to New York later that day and call Krell. Krell then called Floyd, told him that Hochman wanted to buy several hundred pounds of hashish, asked him to come to his house that morning, and told him that he was expecting a call from Hochman during the day.

At about noon on November 1, Hochman called Krell and told him that he had a room in a Manhattan hotel. They agreed to meet there an hour later. Floyd, Krell, appellant Miller and one Steve Abelman then drove to the hotel in Miller's car. Floyd and Krell met Hochman and went with him to his room.

Once in the room it became clear that, although Hochman still wanted to buy 500 pounds, the suppliers for Floyd and Krell did not want to sell that much at the outset. Floyd told Hochman that, based on his conversation with Axelrod and one Steven Liebermann the day before, the initial delivery could not be more than 10 to 20 pounds.

In an attempt to break this impasse, Hochman agreed to "show" the money. He telephoned Special Agent Rottinger of the BNDD who entered Hochman's room and handed Floyd an envelope containing $100,000 in cash. Floyd and Krell looked through the envelope and returned it to Rottinger. Floyd then telephoned Axelrod twice. Hochman finally agreed to accept a first shipment of 50 pounds. Floyd sent Krell for the hashish and told him to have Axelrod call the hotel room before they returned with the hashish. Floyd and Hochman waited in the room.

Krell drove to 270 Riverside Drive with Miller and Abelman who had been waiting outside the hotel. After Krell met Liebermann and Axelrod in the latter's apartment, they went to a public phone booth from which Axelrod called Floyd and told him to call Axelrod back at the booth. He did. From a public phone in the lobby of Hochman's hotel, Floyd called Axelrod and handed the receiver to Hochman. Axelrod told Hochman that he would make an initial delivery of 50 pounds and then three or four subsequent trips, for a total of 400-500 pounds. He told Hochman that Krell would have the 50 pounds when he returned to the hotel. Floyd took the receiver and spoke to Axelrod. Floyd then told Hochman that Krell would arrive in half an hour with 50 pounds of hashish.

After this telephone conversation, Krell, Miller, Abelman, Liebermann and Axelrod drove to Columbus Avenue and 71st Street in Manhattan where Axelrod left the car. He returned a few minutes later carrying a plaid suitcase which he and Krell placed in the trunk. Krell, Miller and Abelman then returned to Hochman's hotel. Krell told Miller and Abelman to drive around the corner with the "hash" until he determined that it was safe for them to enter. Krell went into the hotel, saw Hochman and was told that Floyd would meet them in the room. Krell said that the hashish was in the car circling around until he gave the word. They went to Hochman's room to wait for Floyd.

Meanwhile, Floyd had seen two men standing on the fire stairs outside Hochman's room and became suspicious. He left the hotel to telephone Axelrod. Floyd never returned to the room. Krell left Hochman to look for Floyd, found him outside the hotel and then called Hochman to tell him the deal was off for that day. Floyd called Axelrod to tell him what had happened.

Five days later, on November 6, Hochman again called Krell at his home. This started a new series of negotiations which culminated in a meeting between Hochman and Axelrod at a Manhattan restaurant on November 10. There emerged an agreement by Axelrod to sell 500 pounds of hashish to Hochman at Krell's house in New Jersey the following day in three shipments of 50, 150 and 300 pounds. Axelrod told Hochman that the hashish would be packed in seven to ten suitcases which would be supplied along with the hashish.

On November 11, Hochman went to New Jersey and called Krell to get the sale under way. Krell sent Miller and Abelman to New York in separate cars. The plan was that Miller would drive the second shipment of 150 pounds of hashish to New Jersey, but would not leave New York until after he was informed that the first 50 pounds had arrived and that payment had been received. Abelman received a 50 pound suitcase of hashish from Axelrod and drove to Krell's house. Upon Hochman's arrival at Krell's house, he saw the hashish and persuaded Krell to call Axelrod and tell him he had seen the money (although in fact he had not.) Hochman then called "his man" in Krell's presence and told him to bring half the money. Upon the arrival of Hochman's "man", Krell and Abelman were arrested.

Meanwhile, Axelrod, Lesavoy and Miller drove in the latter's car to 229 Columbus Avenue in Manhattan. Axelrod and Lesavoy entered an apartment at that address and joined Liebermann there. While they were inside, Miller opened the trunk of his car. When the three others came out of the building, each carrying a 50 pound suitcase of hashish, all four were arrested.

Later, a search of Liebermann's Manhattan apartment pursuant to a warrant revealed fourteen additional suitcases containing more than 800 pounds of hashish. Half-filled suitcases of hashish also were found in Axelrod's apartment and in the apartment at 224 Columbus Avenue. Furthermore, Miller admitted after his arrest that he had 50 pounds of hashish in his car on November 1 and would have delivered it to the hotel if the delivery had not been called off.

On April 6, 1973,⁴ a two count indictment was returned in the Southern District of New York charging Floyd, Lesavoy and Miller with violating the controlled substances provisions of the Comprehensive Drug Abuse Prevention and Control Act of 1970, as stated above.⁵

On April 27, 1973, after a seven day trial, the jury convicted the three appellants on the conspiracy count and, in addition, convicted Lesavoy on the substantive count, the court having dismissed the substantive count as against Floyd and Miller at the close of the government's...