United States v. Freeman

• Decision Date: 07 June 1974
• Docket Number: No. 1050,Docket 74-1238.,1050
• Citation: 498 F.2d 569
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stanton FREEMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

498 F.2d 569 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Stanton FREEMAN, Defendant-Appellant.

No. 1050, Docket 74-1238.

United States Court of Appeals, Second Circuit.

Argued May 2, 1974.

Decided June 7, 1974.

Myron Beldock, New York City (Kathleen C. Wresien and Beldock, Levine & Hoffman, New York City, of counsel), for defendant-appellant.

(Edward John Boyd, V., U. S. Atty., Eastern District of New York, and Paul B. Bergman, Asst. U. S. Atty., of counsel), for plaintiff-appellee.

Before WATERMAN, FRIENDLY and MULLIGAN, Circuit Judges.

FRIENDLY, Circuit Judge:

An indictment in the District Court for the Eastern District of New York charged Kim Ornitz, Marilene Tombini, Francisco Rudge, Hermano Albuquerque, Rosalys Rudner and appellant Stanton Freeman with conspiring between May 15 and June 18, 1973, to import cocaine into the United States, and with three substantive offenses—the importation of five pounds of cocaine, possession of the cocaine with intent to distribute it and possession of the cocaine on board an aircraft arriving in the United States, in violation of 21 U.S.C. §§ 952(a), 841(a)(1) and 955. The charges against Albuquerque were dismissed prior to trial. Tombini and Rudge pleaded guilty to the possession on board charge and testified for the Government. Rosalys Rudner is a fugitive.¹ The case against Ornitz and Freeman was tried to Chief Judge Mishler without a jury. At the conclusion of the Government's case, he dismissed the charges against Ornitz for lack of sufficient evidence. This left only Freeman, who testified in his own defense and presented other witnesses. In a memorandum of decision Chief Judge Mishler found him guilty of the conspiracy and of the three substantive offenses and sentenced him to concurrent terms of two years imprisonment and five years special parole.

Freeman's principal attack, and the only one we need to consider, is directed at the sufficiency of the evidence. It is common ground that Freeman never possessed the cocaine, either directly or "constructively," and consequently never possessed it with intent to distribute, never possessed it on board an aircraft, and did not actually import it; his conviction on the substantive counts must rest upon his conviction for conspiracy under the doctrine of Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L.Ed. 1489 (1946), or conceivably, on his being an aider or abettor. It is also clear that the standard of review is no longer the rather low one of United States v. Tutino, 269 F.2d 488, 490 (2 Cir. 1959), urged by the Government, namely, "whether, taking the evidence in the view most favorable to the government, there is substantial evidence to support the verdict", here the judgment. Rather, despite United States v. Dudley, 260 F.2d 439, 440 (2 Cir. 1958), which followed United States v. Costello, 221 F.2d 668, 671 (2 Cir. 1955), aff'd without discussion of this point, 350 U.S. 359, 76 S.Ct. 406, 100 L. Ed. 397 (1956), the test to be applied in reviewing the sufficiency of the evidence after a bench trial is the same as the one we have since adopted, United States v. Taylor, 464 F.2d 240 (2 Cir. 1972), overruling the Costello and Tutino line of cases, when the issue is the propriety of submission to a jury. Adapting Judge Prettyman's formulation in Curley v. United States, 81 U.S. App.D.C. 389, 160 F.2d 229, 232-233 (D.C. Cir. 1947), cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947), with respect to jury trials, which we endorsed in Taylor, the test here is whether upon the evidence, giving full play to the right of the trial judge to determine credibility, weigh the evidence, and draw justifiable inferences of fact, "a reasonable mind might fairly conclude guilt beyond a reasonable doubt." This does not alter the principle that after a conviction we consider the evidence "in the view most favorable to the government"; it simply raises the level that the evidence so considered must meet.

Despite some criticisms by defense counsel, we accept Chief Judge Mishler's account of the conspiracy and its unravelling up to the time of Freeman's first appearance with any of the other persons charged. Omitting footnotes, this is as follows:

In the Spring of 1973, Francisco Rudge travelled to his native Brazil from the United States. During a stopover in Bolivia he learned that he could purchase pure cocaine at $2,500.00 per kilo without difficulty. When he returned to the United States, he met with one George Morao at his room in the Hotel Albert on East 10th Street in Manhattan, and discussed the importation of cocaine. Morao assured Rudge that he would have no difficulty disposing of the cocaine. In May 1973, Rudge and Morao met again in Rudge\'s room at the Hotel Albert with one Rosalys Rudner to discuss plans for importing cocaine from Bolivia. Rosalys Rudner, a national of Brazil, lived with Rudge at the Hotel Albert. It was decided to arrange for the importation in June.

* * * * * *

Rudge and Rudner decided to enlist the aid of one Marilene Tombini as a courier in the plan. Tombini, a national of Brazil, was then residing in London. Rudge and Rudner flew to London where they met with Tombini. Tombini agreed to play the assigned role in the plan. Rudge paid for Tombini\'s return to New York. Tombini came to New York on June 2nd. The plans were finalized at a meeting in Rudge\'s room at the Hotel Albert in early June, attended by Rudge, Rudner and Tombini. Rudge agreed to supply the funds. Tombini was to fly to Buenos Aires, Argentina. Rudge and Rudner were to fly to Bolivia and Rudner thereafter was to meet Tombini with the cocaine in Buenos Aires.

Rudge left John F. Kennedy International Airport on June 6th for Bolivia on Braniff Airlines. Rudner left for Bolivia on Lufthansa on the same day. Tombini left for Buenos Aires on June 7th on Argentina Airlines. Rudge purchased two (2) kilograms of cocaine in Bolivia at $2,500.00 a kilo. He turned it over to Rudner, who then left for the Sheraton Hotel in Buenos Aires to meet Tombini. Rudge returned to New York at the John F. Kennedy International Airport in the early hours of June 13th.

Rudner delivered two suitcases in which were concealed the two kilograms of cocaine. The next morning, Tombini put her personal belongings into the two suitcases. Rudner and Tombini boarded a Pan American flight to New York. Tombini was arrested as she attempted to pass through Customs. Rudner had taken a position on a fast moving line at a Customs checkout counter and lost sight of Tombini. Rudner in the meantime waited at the Terminal outside of Customs. When Tombini failed to exit from Customs, Rudner surmised that Tombini had been arrested.

Rudner took a taxi to the Hotel Albert to report her suspicions to Rudge. She came with two suitcases. Rudge, understanding the gravity of the situation, suggested that Rudner pack the clothing and other personal effects that she had left in his hotel room and go to the Hotel Paramount on 46th Street, near Broadway. She took a taxi and registered at the Paramount Hotel in the early hours of June 14th.

After Rudner left the Hotel Albert, Rudge called Morao, his prospective purchaser. Rudge informed Morao that he had sent Rudner to the Hotel Paramount, and the two discussed the probability of Tombini\'s arrest.

Rudge was arrested at about midnight on June 13th on the information supplied by Tombini. Morao learned of the arrest and advised Rudner.

Judge Mishler relied on three sets of circumstances in reaching the conclusion that Freeman was a member of the conspiracy. Two of these can be stated quite briefly; the third and most important will require more detail. Before going into any of this we must give some description of Freeman, postponing at this juncture the facts on which the Government relies to show his participation in the conspiracy.

At the time of the offenses here charged, Freeman, a 39-year-old Canadian citizen and a permanent resident of the United States, lived in West Greenwich Village, Manhattan, with his wife and two children. He had worked in a Canadian electronics firm and then in what is described as the "music business." In 1966 he opened a multimedia night club, the Electric Circus. He subsequently met Morao, a film maker and photographer, and Morao's common-law wife, Theresa Costa, also a Brazilian, and established a social relation with them. They had been in each other's homes and had gone out together.

In May and June, 1973, Freeman was preparing to open two night clubs in the Hotel Diplomat on West 48th Street in New York City and was working at least 18 hours a day in that endeavor. On June 8 Morao phoned Freeman to tell him that he had returned from South America and to ask Freeman to recommend an attorney to represent Theresa Costa on an immigration problem, which Freeman subsequently did. On June 10 Morao brought a gift from South America to Freeman at his home, where they discussed the possibility of Morao's supplying a large quantity of shishkebab for the opening of Freeman's nightclubs —a plan which, after some further conversations, ultimately fell through.

The first item of evidence relied on by the district court to implicate Freeman in the 1973 importation conspiracy was the testimony of Mark Etra. Etra first met Freeman in September 1971 at the latter's Greenwich Village home where Freeman was attempting to sell him audio equipment. Etra, an importer of cocaine, brought with him some which they used. Freeman said he would be interested in obtaining large quantities of cocaine if Etra could deliver it to him on a fairly regular basis.² Etra said that might be possible, but that he would have to talk to some other people about it; in response to a number of telephone requests from Freeman, Etra subsequently delivered a sample of approximately a gram. While there was then some further discussion of the possibility of procuring more cocaine, Freeman never pursued...