United States v. Wolk

• Decision Date: 31 July 1975
• Docket Number: Crim. No. 74-305.
• Parties: UNITED STATES of America v. Robert WOLK.
• Court: U.S. District Court — Eastern District of Pennsylvania

398 F. Supp. 405

UNITED STATES of America v. Robert WOLK.

Crim. No. 74-305.

United States District Court, E. D. Pennsylvania.

July 31, 1975.

Robert F. Haley, II, Sp. Atty., Joseph Kiel, Organized Crime & Racketeering Section, Crim. Div., Philadelphia Strike Force, Philadelphia, Pa., for plaintiff.

Mark S. Levy, Philadelphia, Pa., for defendant.

MEMORANDUM AND ORDER

BRODERICK, District Judge.

This matter comes before the Court on the defendant's Motion for a New Trial or, in the alternative, for a Judgment of Acquittal after a jury verdict of guilty on the count charged in the indictment. The count upon which the defendant was found guilty is as follows:

COUNT I: That from on or about October 26, 1973, up to and including February 15, 1974, in the Eastern District of Pennsylvania, and elsewhere

ANTHONY MERLINO, a/k/a TONY ANN MERLINO ALBERT CARTER, a/k/a AL JOEL BARBALOCK KENNETH COOPER ROBERT WOLK WILLIAM CASPERSON JOSEPH CROGHAN MARGARET DEL CONTE, a/k/a MAGGIE

defendants herein, and Joseph McCreary, a/k/a Big Joe, Edward J. Troise, Jr., Mark A. Hirsch, Richard Erwin, a/k/a Richie, Maurice Altamuro, a/k/a Moe, Stuart Kellerman, Richard Bear, a/k/a Alfie, Miles Taylor, named as co-conspirators but not as defendants herein, wilfully, knowingly, and intentionally did combine, conspire, confederate and agree together, with each other and with diverse other persons whose names are to the Grand Jury known and unknown, to manufacture, distribute, dispense and possess, with intent to manufacture, distribute and dispense, methamphetamine, amphetamine, cocaine, pentabarbital, phexcyclidine and other controlled substances, as listed in the Schedule of Controlled Substances in Title 21, United States Code, Section 812, in violation of Title 21, United States Code, Section 841(a)(1).

Robert Wolk was tried alone on this count since all the other named conspirators, with the exception of William Casperson, whose trial was severed,¹ had previously pleaded guilty to the conspiracy charge or other counts in the indictment.

The defendant's motion has raised five issues for the Court to decide.

1. Did the admission of a hearsay statement of a co-conspirator violate the defendant's right of confrontation?

2. Did the Court err in permitting the Government to use evidence obtained from a search of the defendant's wallet?

3. Did the Court err in permitting the Government to use a photograph taken by a government agent of chemicals and chemical equipment?

4. Did the Court err in permitting a Government witness, John Fascinello, to testify as an expert?

5. Did the Court err in not directing a mistrial when the attorney for the Government referred to the United States of America as his "client"?

1. Did the admission of hearsay statements of co-conspirators violate the defendant's right of confrontation?

At 7:45 p. m. on October 26, 1973, James Bannister, a Special Agent with the Drug Enforcement Agency (DEA), was introduced by informer William Casperson to Anthony Merlino and his wife, Ann Merlino, at the Merlinos' apartment. At this meeting, Agent Bannister purchased approximately 5½ ounces of cocaine from Mr. Merlino for $2,700.00 and initiated discussions concerning the possibility of a future purchase of two pounds of methamphetamine in exchange for five gallons of a chemical, phenyl-2-propanal (P-2-P), which is used to manufacture methamphetamine. During the discussions concerning the future drug deal, Mr. Merlino stated to Agent Bannister that an individual referred to as "Al" would control the methamphetamine transaction. At a subsequent meeting held on November 1, 1973, Special Agent Vincent Moran, also with DEA, was introduced to Anthony Merlino as an associate of Agent Bannister. At two subsequent meetings at Mr. Merlino's apartment, Agents Bannister and Moran discussed with Mr. Merlino the proposed methamphetamine for P-2-P transaction and learned more about "Al", including the fact that he worked in Pennsauken, New Jersey for an establishment known as Mirror Magic, Inc. Finally, on November 21, 1973, Agents Bannister and Moran, together with Mr. Merlino, went to Mirror Magic and met "Al", whose full name is Albert Carter. Mr. Carter supplied the Agents with a sample of the methamphetamine which they would receive in exchange for their five gallons of P-2-P and stated this his "chemist" was currently working on a batch of methamphetamine which was supposed to be finished by November 26, 1973. Mr. Carter instructed the Agents to contact Mr. Merlino to make the final arrangements for the exchange. However, no exchange took place and on November 29, 1973, Mr. Merlino informed Agent Bannister that the scheduled exchange had been called off because Mr. Carter was apprehensive.

Finally, on January 10, 1974, at approximately 11:50 p. m., Mr. Merlino telephoned Agent Bannister and asked if he had the P-2-P ready to exchange. Agent Bannister replied that he did and Mr. Merlino said that he would contact Agent Bannister when he had the methamphetamine in his possession. Early in the afternoon on January 11, 1974, Agents Bannister and Moran arrived at Mr. Merlino's new house located in Harleysville, Pennsylvania, carrying the five gallons of P-2-P in three red two-gallon gasoline cans. Present at this meeting were Agents Bannister and Moran and Mr. Merlino and Mr. Carter. Mr. Carter stated that he would not release the methamphetamine until the P-2-P had been sampled by some unknown person, referred to as "his man". The Agents, Mr. Merlino and Mr. Carter then agreed that Mr. Carter would deliver the P-2-P to whomever was designated in order to have the chemical checked and that the Agents and Mr. Merlino would meet at 19th and Sansom Streets in Philadelphia, at approximately 4:00 p. m. to finalize the transaction. Shortly after 4:00 p. m., the Agents and Mr. Merlino met with Mr. Carter at 19th and Sansom Streets and Carter stated that the P-2-P was satisfactory.

After leaving Mr. Merlino's residence in his car at approximately 2:25 p. m. with the three red gas cans, Mr. Carter was placed under moving surveillance by DEA agents. Mr. Carter drove directly from Harleysville, Pennsylvania to a parking lot located near Eighth and Sansom Streets in Philadelphia. He arrived at the lot at 3:20 p. m., took the three red gas cans out of his car, and proceeded with the cans to the General Radio and TV shop located at 801 Sansom Street. The defendant is a partner in the General Radio and TV shop located at that address. At about 3:50 p. m., Mr. Carter left General Radio and TV without the three red gas cans.

Beginning at the time Mr. Carter left the three red gas cans at 801 Sansom Street, General Radio and TV was kept under constant surveillance by DEA agents. At about 5:00 p. m. on January 17, 1974, the defendant left his place of business at 801 Sansom Street and entered a white Lincoln Continental and drove past his store and around the block approximately three times. He then parked his car opposite his store at 801 Sansom Street and entered the premises. Within five minutes the defendant re-appeared in the doorway of 801 Sansom Street carrying three red gas cans, proceeded to his car and placed the three red cans in his car trunk. The defendant then returned to his store and approximately ten minutes later locked the store and left the area. The defendant was then followed up Broad Street in Philadelphia to Germantown Avenue. He then circled a block in the Germantown area three times and temporarily evaded the Government surveillance. The car was located again parked on the south side of Germantown Avenue. The defendant is the owner of a second establishment known as General Radio and TV, located on Germantown Avenue in Philadelphia. Surveillance of the defendant then continued for approximately ten days.

The Government also produced testimony, based upon the records of the Bell Telephone Company of Pennsylvania² and the records of the New Jersey Bell Telephone Company,³ that for the period encompassing August, 1973 to January, 1974 at least 15 long distance telephone calls were made from the defendant's phone located at 801 Sansom Street to Mirror Magic, Inc., Mr. Carter's place of business, and that at least 32 long distance telephone calls were placed from Mirror Magic, Inc., to 801 Sansom Street, Philadelphia. The Government also introduced into evidence a telephone book taken from the person of Albert Carter by Officer Zajak of the Bensalem Township Police Department, Bucks County, Pennsylvania on January 16, 1974, which was later given to Agent Bannister. In this phonebook, under the name "Bob", was listed the home phone number of the defendant, as well as his business numbers at the Germantown store and the store located at 801 Sansom Street. Further testimony by the Government revealed that for approximately two years prior to his arrest, the defendant had purchased various chemicals and laboratory equipment from a distributor called Scientific Equipment Company located in Philadelphia and that these purchased chemicals and equipment were useful, and in some cases necessary, in the manufacturing of methamphetamine.

The Government also introduced the hearsay statement of Albert Carter made to Agents Bannister and Moran at a meeting held on February 6, 1974, the purpose of which was to discuss another large methamphetamine transaction. Mr. Carter was pressed at this meeting for an explanation as to the reason for the delay in consummating this second transaction. Mr. Carter stated that the delay was caused by the fact that his contact believed that he was being followed by the F.B.I. Mr. Carter said that his "man" drove a white vinyl topped Lincoln Continental Mark IV with white interior and owned two stores, one of which was located in an all black area in Germantown. He further described this individual as a white Jewish male who was a younger man and drew suspicion from the other store owners who...