United States v. Wright, 897

• Decision Date: 05 September 1972
• Docket Number: Docket 71-1737.,No. 897,897
• Citation: 466 F.2d 1256
• Parties: UNITED STATES of America, Appellee, v. James WRIGHT, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

466 F.2d 1256 (1972)

UNITED STATES of America, Appellee, v. James WRIGHT, Appellant.

No. 897, Docket 71-1737.

United States Court of Appeals, Second Circuit.

Argued July 14, 1972.

Decided September 5, 1972.

Alan F. Scribner, New York City (Albert J. Krieger, Ivan S. Fisher, New York City, on the brief), for appellant.

Carter LaPrade, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty. S. D. N. Y., Peter F. Rient, Asst. U. S. Atty., on the brief), for appellee.

Before FEINBERG, MULLIGAN and OAKES, Circuit Judges.

FEINBERG, Circuit Judge:

James Wright appeals from a judgment of conviction entered in the United States District Court for the Southern District of New York after a jury trial before Judge Thomas F. Croake. Appellant was found guilty on two counts of receiving, concealing and facilitating the transportation and concealment of heroin, in violation of 21 U.S.C. §§ 173, 174. He was sentenced to concurrent ten-year terms of imprisonment and fined a total of $1,000. On this appeal, Wright asserts that various exhibits of cocaine were erroneously admitted into evidence at his trial and further seeks to raise for the first time a cluster of issues concerning the legality of a wiretap employed in connection with this case. For the reasons set forth below, we affirm.

Some extended background information is necessary to put appellant's legal claims in proper context. During part of 1969 and most of 1970, federal agents of the Bureau of Narcotics and Dangerous Drugs (BNDD) in Pennsylvania and New Jersey had been surveilling Eugene Lawson, who was believed to be a heavy narcotics trafficker. In the spring of 1970, wiretaps were authorized for telephones located at Lawson's place of business in Philadelphia and at his home in Atco, New Jersey. Those taps, and other information, linked Lawson to several major narcotics violators in the Philadelphia area. The taps also disclosed several conversations from Lawson's phones to various persons (including a "Jimmy") at a Manhattan telephone number listed to Dolores Glover.¹ On September 21, 1970, another wiretap was authorized for a telephone at Lawson's home, this time on an unlisted private line that had not been previously tapped. As a result of this tap, on October 5, 1970, a conversation was overheard with a "Mickey" at the Glover telephone number. A female voice, calling that number, stated that "Gene" Lawson would pick up narcotics in New York "tonight." Thereafter, according to the affidavit for a search warrant of the Glover apartment:

continuous surveillance was maintained on Eugene Lawson. He was followed to New York today, October 6, 1970, where he proceeded to 146 West 120th Street, and entered Apartment 5 the Glover apartment. He was not carrying anything. Lawson later emerged carrying a shopping bag which he placed in the trunk of his car. Lawson was then followed through New York and onto the New Jersey Turnpike where he was arrested. On his person was approximately 33 grams of heroin, approximately 5 grams of what appeared to be cocaine. The shopping bag in the trunk contained mannite and quinine.

Following Lawson's arrest, BNDD agents, relying on the affidavit reciting the above and additional information, obtained a search warrant for the Glover apartment in Manhattan. The agents arrived there the same evening, at about 8:15 P.M., knocked on the door, identified themselves and stated that they had a search warrant. According to the Government's witnesses, whose testimony we must now credit, the agents were not admitted, but they heard shuffling sounds and a flushing toilet. At that point, the agents forced open the apartment door and arrested appellant Wright, who was standing in the bathroom, his hands and arms covered with white powder. Cocaine was found floating in the toilet bowl and mannitol was found sprinkled about the rim. A small tinfoil packet containing .22 grams of heroin (Count 4) was in Wright's pocket, three envelopes containing 42.7 grams of heroin were on the kitchen table (Count 3) and six envelopes containing 21.37 grams of heroin were found in a paper bag pinned inside a jacket in the bedroom (Count 5). Cocaine in a foil wrapper and lying as a "loose powder" was found on the kitchen table; 70.99 grams of cocaine were also found in a hall closet. Over $8,000 in cash was uncovered, along with two sets of measuring scales, six bottles of quinine, several hundred mannite cubes and 15 boxes, each containing 1,000 glassine envelopes.

A. Admission of the Cocaine Exhibits.

The indictment against appellant contained seven counts; three counts related to heroin (Counts 3, 4 and 5) and three related to cocaine (Counts 1, 2 and 6).² The Government successfully moved to sever the cocaine counts and, in fact, consented to their dismissal after it had rested on the heroin counts. Appellant, then, was tried on the three heroin counts and convicted on two of them.³ In presenting its case on the heroin counts, however, the Government —over appellant's objections—was permitted to introduce various exhibits consisting of the cocaine found in the apartment. Appellant renews his objections here, claiming that the "identification of the exhibits as cocaine was entirely unnecessary and prejudicial." We do not agree.

Obviously, the Government may not introduce evidence of acts amounting to separate crimes merely to establish that defendant is a "bad man." McCormick, On Evidence § 157 (1954). But the amounts of cocaine found throughout the apartment in which appellant was arrested were relevant for other, legitimate purposes. The Government could reasonably anticipate that the defendant would take the position that he was an unknowing visitor to premises he had no idea were being used for illegal distribution of narcotics. Indeed, appellant testified along those lines when he took the stand in his own defense. Evidence of the large quantities of different narcotics and narcotic dilutants was relevant to prove affirmatively that there could be no reasonable mistake or inadvertence on the part of someone in that apartment. See United States v. Kaufman, 453 F.2d 306, 310-311 (2d Cir. 1971); United States v. Ross, 321 F.2d 61, 67 (2d Cir.), cert. denied, 375 U.S. 894, 84 S.Ct. 170, 11 L.Ed.2d 123 (1963). Moreover, appellant was charged with receiving, concealing and facilitating the transportation and concealment of narcotics. The cocaine exhibits were relevant for purposes of showing preparation and...