United States v. Lawson

• Decision Date: 17 July 1972
• Docket Number: Crim. A. No. 71-53.
• Citation: 347 F. Supp. 144
• Parties: UNITED STATES of America v. Eugene LAWSON et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

347 F. Supp. 144

UNITED STATES of America v. Eugene LAWSON et al.

Crim. A. No. 71-53.

United States District Court, E. D. Pennsylvania.

July 17, 1972.

Robert C. Ozer, Sp. Atty., U. S. Dept. of Justice, Washington, D. C., for plaintiff.

Louis C. Johanson, Paul Yermish, Philadelphia, Pa., Charles V. Bell, Charlotte, N. C., Voluntary Defender Assoc. Philadelphia, Pa., for defendants.

MEMORANDUM

HUYETT, District Judge.

Defendants were found guilty after trial by jury of conspiracy to receive, conceal, transport, and sell heroin in violation of the Federal narcotics laws, 21 U.S.C. § 174, 26 U.S.C. §§ 4704(a), 4705(a), 7237(a), 7237(b).¹ On November 4, 1971, trial on the three-count indictment commenced against six defendants² and on December 2, 1971, a jury returned a verdict of guilty against each defendant on all three counts. Each contended in post-trial motions that his motion for judgment of acquittal was erroneously denied at the conclusion of trial and that the verdict was contrary to the weight of the evidence. Alternatively, each sought a new trial because of events that occurred during trial. On June 19, 1972, argument was held on defendants' various post-trial motions. At the conclusion of argument all post-trial motions except Katherine Mayberry's motion for judgment of acquittal were denied. Her motion for judgment of acquittal was granted. The purpose of this Memorandum is to set forth in some detail the reasons for the ruling of the Court from the bench on June 19, 1972.

MOTIONS FOR JUDGMENT OF ACQUITTAL

Since the trial was rather lengthy, no attempt will be made to review all of the evidence offered by the Government to prove its case. A summary, however, of the evidence relied upon to dispose of the motions for acquittal follows.

The evidence indicated that the Government's investigation commenced at least as early as April, 1970, and culminated with the arrest of defendants tried in October, 1970. Pursuant to Court orders entered in this district and in the District of New Jersey communications were intercepted on telephone lines subscribed to by Eugene Lawson at his residence in Atco, New Jersey, and his place of business, Up Look Record Co. in Philadelphia, Pa. Edward W. Cassidy, an agent of the Bureau of Narcotics and Dangerous Drugs, testified extensively concerning his supervision of the intercept procedures in the case. He testified that his experience as a narcotics investigator convinced him that certain slang expressions recurring throughout the intercepted conversations had particular meanings to people involved in the traffic of narcotics.

From the Government's explanation of the intercepted conversations and the related surveillance, the jury could reasonably conclude, and apparently did conclude, that:

(1) On April 30, 1970, Wilberta Lawson travelled by bus to Apartment 5, 146 W. 120th Street, in New York City to pick up an order of heroin and cocaine for Eugene Lawson.

(2) On the way home from New York City, Wilberta Lawson delivered a package of narcotics to the Philadelphia residence of Walter Meadows at 3:00 or 4:00 A.M. on May 1, 1970.

(3) Bernice Wilcox made similar pick-ups for Eugene Lawson.

(4) When arrested on October 2, 1970, Walter Meadows was in possession of two bags of heroin and had never been treated anywhere for addiction.

(5) In October, 1970, Eugene Lawson was attempting to purchase a kilogram of pure heroin from James Wright in New York City for approximately $27,000.

(6) On October 6, 1970, Eugene Lawson, under surveillance, visited an apartment at 146 W. 120th Street, New York City. He left the premises with several packages that he placed in the trunk of his car. Shortly thereafter he was followed onto the New Jersey Turnpike and arrested. Searches of his car and person uncovered substances that were subsequently identified as: (a) 30.9 grams of pure heroin; (b) 1.15 grams of a mixture of cocaine hydrochloride and sugar; and (c) twenty ¼ ounce blocks of mannite, a substance used to adulterate heroin for street use.

(7) On October 6, 1970, a search was conducted of the premises of Apartment 5, 146 W. 120th Street, New York City. The narcotics and narcotic-related materials that were seized there can best be described as being of factory proportions. The heroin, cocaine, cutting or adulterating materials, scales and plastic bags that were seized were introduced as Government exhibits 11 through 32.

(8) On October 5, 1970, Willie J. Rhynes sent a $1200 money order for Eugene Lawson to the Western Union office in Philadelphia. The money order listed the sender as Willie R. Hynes. On October 5, 1970, a conversation between Rhynes and Eugene Lawson indicated that Lawson was going to pick up something for Rhynes the next day. It also indicated that since this was "the first time" Lawson wanted to personally show Rhynes "what to do". Although Rhynes testified that the $1200 was sent to Lawson for a legitimate business purpose, the totality of the circumstances entitled the jury to conclude that the money was sent to acquire narcotics from the purchase that Eugene Lawson made in New York City the next day.

The above brief outline of the evidence introduced at trial leaves this Court convinced that the cases involving those defendants implicated were properly submitted to the jury.

Viewed in retrospect, however, the evidence presented against defendant Katherine Mayberry was substantially weaker than that presented against the other defendants. Personal surveillance by Government agents indicated only that she was a receptionist at Eugene Lawson's Up Look Record Co. in Philadelphia. The only telephone conversations involving Katherine Mayberry that were intercepted indicate at most that she was a drug user—not a dealer. These conversations were not even with any of the other alleged conspirators, and, indeed, were absolutely void of any incriminating references to other alleged conspirators.

It is also noteworthy that one of the intercepted Katherine Mayberry conversations indicates that she was anxious to receive a quantity of drugs from an unknown person who called her at Up Look Record Co. If, in fact, she were a member of this apparently large scale narcotics conspiracy, it would be unnecessary and probably more costly for her to purchase her drugs from an outsider.

Consequently, although there was sufficient credible evidence to link the other defendants to a conspiracy to purchase, conceal, transport, and sell narcotics, only the vaguest speculation could lead the jury to include Katherine Mayberry in that conspiracy. For that reason the motion of Katherine Mayberry for judgment of acquittal was granted but similar motions by the other defendants were denied.

MOTIONS FOR NEW TRIAL

Defendants also alleged the commission of many prejudicial errors in the conduct of the trial. Only those allegations that concern the handling of the intercepted conversations during trial, however, will be discussed.

Initially, defendants contended that the recordings of the intercepted conversations were entirely too unintelligible to be admitted into evidence. In United States v. Schanerman, 150 F.2d 941 (3 Cir.1945), the only Third Circuit case uncovered dealing with this problem, the Court held that:

"No error is found, as charged by appellant, in the refusal of the district court to instruct the jurors to disregard what they had heard when records of conversations between appellant and Finneran were `played' in the hearing of the jury during the trial . . . . The mere fact that certain portions of the mechanically recorded conversations were less audible than others did not call for exclusion of what the jurors personally heard from the `playing' of the records. There would be no more valid reason for exclusion of the mechanically recorded conversations than there would be for excluding competent conversations, overheard in part, by human witnesses."

In Monroe v. United States, 98 U.S. App.D.C. 228, 234 F.2d 49, 55 (1956), cert. denied, 352 U.S. 873, 77 S.Ct. 94, 1 L.Ed.2d 76 (1956), the standard for admissibility of tape recordings was phrased as follows:

"Unless the unintelligible portions are so substantial as to render the recording as a whole untrustworthy the recording is admissible, and the decision should be left to the sound discretion of the trial judge."

Indeed, this standard for admissibility has been uniformly followed by the Courts. See United States v. Kaufer, 387 F.2d 17, 19 (2 Cir.1967); United States v. Knohl, 379 F.2d 427, 440 (2 Cir.1967), cert. denied, 389 U.S. 973, 88 S.Ct. 472, 19 L.Ed.2d 465 (1967); United States v. Madda, 345 F.2d 400, 403 (7 Cir.1965); Johns v. United States, 323 F.2d 421 (5 Cir.1963); Addison v. United States, 317 F.2d 808 (5 Cir.1963) (admission of conversation upheld where only one half of tape was understandable); Gorin v. United States, 313 F.2d 641, 652 (1 Cir.1963); Todisco v. United States, 298 F.2d 208 (9 Cir.1961), cert. denied, 368 U.S. 989, 82 S.Ct. 602, 7 L.Ed.2d 527 (1962).

During the pretrial proceedings in the instant case, the Government voluntarily supplied to all defendants transcripts of the intercepted wire communications. So that the Court could rule preliminarily upon the admissibility of the recordings that the Government proposed to introduce at the trial, I entered an Order dated October 5, 1971, requiring the Government to prepare for use at trial 20 copies of an exhibit consisting of an accurate transcript of all conversations believed relevant with the speakers identified in accordance with the Government's contention. The Order also required the Government to prepare an accurate single tape for use at trial containing only those conversations which the Government would seek to have introduced at the trial.

At the pretrial hearings held on November 1, 1971, November 3, 1971, and November 4, 1971, prior to the formal commencement of the trial and attended by defendants and their cou...