United States v. Garelle

• Decision Date: 13 October 1970
• Docket Number: Dockets 34799,No. 189,190,35125.,189
• Citation: 438 F.2d 366
• Parties: UNITED STATES of America, Appellee, v. Stanley GARELLE and Martin Zimmerman, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

438 F.2d 366 (1970)

UNITED STATES of America, Appellee, v. Stanley GARELLE and Martin Zimmerman, Appellants.

Nos. 189, 190, Dockets 34799, 35125.

United States Court of Appeals, Second Circuit.

Argued September 18, 1970.

Decided October 13, 1970.

On Rehearing December 3, 1970.

Certiorari Dismissed March 19, 1971.

David F. Dobbins, New York City (Royall, Koegel & Wells, James M. Pape, New York City, of counsel), for appellant Garelle.

Ronald Gene Wohl, New York City, for appellant Zimmerman.

David A. Luttinger, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., for the Southern District of N. Y., Allan A. Tuttle, Asst. U. S. Atty., of counsel), for appellee.

Before WATERMAN, MOORE, and KAUFMAN, Circuit Judges.

Certiorari Dismissed March 19, 1971. See 91 S.Ct. 1040.

IRVING R. KAUFMAN, Circuit Judge:

On October 23, 1968, appellants Martin Zimmerman and Stanley Garelle were charged in the first count of a three-count indictment with conspiring with seven co-defendants, five co-conspirators not indicted, and unknown others, to import, conceal, and sell a large quantity of hashish in violation of 21 U.S.C. § 176a.¹ After an eight-day jury trial before Judge Harold Tyler in the Southern District of New York, both Zimmerman and Garelle were found guilty.² On February 20, 1970, Judge Tyler sentenced each defendant to a minimum mandatory prison term: five years for Zimmerman as a first offender; ten years for Garelle because Judge Tyler found that he had committed a second offense under the federal narcotics laws.³ Zimmerman and Garelle appeal from their convictions. Garelle urges also that he was wrongly sentenced as a recidivist.

Viewing the government's evidence in a light most favorable to the prosecution as we are required to on this appeal, United States v. Dawson, 400 F.2d 194, 205 (2d Cir. 1968), cert. denied, 393 U.S. 1023, 89 S.Ct. 632, 21 L.Ed.2d 567 (1969); United States v. Kahaner, 317 F.2d 459, 467 (2d Cir. 1963), cert, denied, sub nom. Corallo v. United States, 375 U.S. 835, 84 S.Ct. 62, 11 L.Ed.2d 65 (1963), it portrayed Zimmerman as one of three manager-directors of an illicit multi-national venture centered on a small Spanish island in the western Mediterranean Sea called Ibiza.

Zimmerman traveled to Ibiza from New York City in the Spring of 1966. Between that time and May of the following year, Zimmerman and two American compatriots, Robinson and Dickason, arranged at least three shipments of hashish from the island to the United States.⁴ Proceeds from the last of these deliveries permitted the three friends to undertake a new, more ambitious project.

On May 19, 1967, Zimmerman, Robinson and Dickason embarked on an odyssey that took them first to London and Paris for money,⁵ and then by airplane and freighter to Kathmandu, Nepal in the Himalayan Mountains. There, toward the middle of June, the trio arranged with suppliers known to Zimmerman for the purchase of some twenty-eight pounds of hashish for $300. From Nepal, the narcotics were carried by a girl named Tanya, accompanied by Dickason, to New Dehli, India. Zimmerman there had the hashish sewn into the bottom of three suitcases and completed plans for selling the drugs in Montreal, Canada.

As early as the planning stage of the trip in Ibiza, Stanley Garelle was one of two persons identified by the three adventurers as the intended buyers for the Nepal hashish. In New Delhi, Zimmerman arranged to sell half the narcotics to Garelle and half to another New York City resident, Gerald Abrams. In two conversations, one on June 19 or 20 and the other on June 22, 1967, Garelle enlisted a friend, Arnold Cohen, to pick up Garelle's share from Dickason in Montreal. According to plan, Dickason smuggled the hashish into Montreal by plane, where, after some confusion over the meeting place, Cohen and Abrams divided the contraband between them. Disregarding Garelle's instructions to return to New York by bus to avoid the chance of a thorough border search, Cohen rented a car and stuffed the hashish under the front seat, where it was subsequently discovered by United States Customs agents as Cohen attempted to cross the border at Rouses Point, New York.

I.

Zimmerman objects to two aspects of his trial. First, he characterizes as unjustly prejudicial the government's introduction in evidence against him of two letters, purportedly written by Zimmerman. A related suggestion is that Judge Tyler should not have permitted the government's effort to attribute these letters to Zimmerman's hand by putting in evidence an exemplar of his writing along with certain other supporting documents. That the two letters were relevant to the government's case is plain. One, taken from an alleged co-conspirator, Gerald Abrams, upon his arrest, alluded to the presence of another co-conspirator (Jane Abrams) on Ibiza. This letter also corroborates testimony of co-conspirator Barry Kessler, concerning one of the alleged shipments of hashish sent prior to the trip to Nepal.⁶ The second letter, seized after the arrest of another alleged co-conspirator, Stuart Greenhaus, apparently prescribed the method by which Greenhaus would make payment for still another shipment of drugs (hashish and opium), this time from Rome. Both letters thus established a relationship between Zimmerman and other alleged conspirators. In addition, the first letter corroborated the testimony of a key witness. Each was well "worth consideration by the jury," 1 Wigmore, Evidence § 29 at 411 (3d ed. 1940) and hence admissible, unless we can say that Judge Tyler abused his discretion in refusing to exclude them as unduly prejudicial. Although both letters do refer to sales of hard narcotics, and thus suggest criminal activity not charged in the indictment, "evidence relevant to the proof of one crime is not incompetent because it discloses the commission of another." United States v. Eury, 268 F.2d 517, 520 (2 Cir. 1959); United States v. Kahaner, supra.

To lay a foundation for the admission of the letters, the government secured an order from the trial judge directing Zimmerman to provide a sample of his writing. When Zimmerman refused to comply with the order,⁷ the government introduced a letter taken from Zimmerman upon his repatriation to the United States from Beirut in January, 1966. The partial signature "Martin Zi * * *" appears at the bottom of this exemplar. The government also introduced Zimmerman's repatriation file to establish that the contents of the letter corresponded with facts about Zimmerman's recent life recorded in his file. The exemplar was clearly "admissible * * * to determine the genuineness of other handwriting attributed to * * *" Zimmerman. 28 U.S.C. § 1731. See United States v. Swan, 396 F.2d 883 (2d Cir.), cert. denied, 393 U.S. 923, 89 S.Ct. 254, 21 L.Ed.2d 259 (1968); United States v. Liguori, 373 F.2d 304 (2d Cir. 1967).

II.

Zimmerman next contends that a delay of four months and twenty-two days, between his arrest on August 7, 1969, and his trial which began on December 29, deprived him of his Sixth Amendment right to a "speedy" trial. A review of the circumstances surrounding the faulted period, United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966), fails to disclose any factor favorable to Zimmerman's claim. See United States ex rel. Solomon v. Mancusi, 412 F.2d 88, 90 (2d Cir.), cert. denied, 396 U.S. 936, 90 S.Ct. 269, 24 L.Ed.2d 236 (1969) (relevant factors include possible waiver for failure to object, length of delay, prejudice to defendant, and reasons for delay). It is of interest that Zimmerman's counsel made no complaint of delay until December 16, when the trial was moved from its tentative starting date of December 18 to December 29, in order to accommodate co-counsel. See United States v. Lustman, 258 F.2d 475, 478 (2d Cir.), cert. denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958). Moreover, the time between arraignment and trial here does not approach the elapsed period in any case in this jurisdiction where denial of an adequately "speedy trial" has been found. E.g., United States v. Lustman, supra (four years); cf. Hodges v. United States, 408 F.2d 543 (8th Cir. 1969) (about 18 months). Further, defendant has shown nothing to indicate that he was affected in the slightest by this short delay and we view his argument as hypertechnical and barren. There were no elements of purposefulness or oppressiveness present here, Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957). Indeed, the "delay" was attributable solely to the length of a trial over which Judge Tyler was then presiding.⁸

III.

Garelle contests the government's introduction in evidence of an address book taken by a Bureau of Customs agent from alleged co-conspirator Robinson's luggage on August 5, 1967, during an interrogation and search of Robinson at Rouses Point. On the letter "A" page of the listed addresses, and obviously not in alphabetical order, the name and address of Garelle appears directly beneath the entry for "Jerry Abrams." Just below Garelle's address a notation reads "Ask about Mel." "Mel Knee" was an alias used at times by Zimmerman.

Garelle concedes that the notebook would be admissible as circumstantial evidence of a conspiracy among those named in it, see United States v. Armone, 363 F.2d 385 (2d Cir.), cert. denied, Viscardi v. United States, 385 U.S. 957, 87 S.Ct. 391, 17 L.Ed.2d 303 (1966), but argues that its use here violated his Sixth Amendment right to confront and examine in the courtroom the witnesses against him.

We think the argument fails on several grounds. First, we perceive no justification for Garelle's construction of a portion of the government's summation as an "election" to treat the address book as "testimonial," rather than "circumstantial" proof. Garelle does not question the vitality of the rule that "when a member of a conspiracy is arrested, even after termination of...