Moore, Friendly and Feinberg, Circuit Judges.
James Miller, a resident of Milford, Connecticut, was found by a jury in the District Court for Connecticut to have conspired to import heroin into the United States in violation of 21 U.S.C. §§ 173-74. The seriousness of the crime is attested by Judge Blumenfeld's sentence of 12 years imprisonment on a first narcotics conviction.
The indictment naming seven defendants was returned in the District Court for the Southern District of Texas on May 27, 1964. Judge Connally in that court granted Miller's motion for a severance on August 17, 1965, and, after initial denial by him of a motion for transfer of Miller's case to Connecticut pursuant to F.R.Cr.P. 21 and refusal of mandamus by the court of appeals, Miller v. Connally, 354 F.2d 206 (5 Cir. 1965), directed such transfer on February 18, 1966. The four other defendants who were arrested, Lucian Rivard, Charles Emile Groleau, Julian Gagnon (who went under the name of Jerry Massey) and Joseph Raymond Jones, have been convicted in Texas and their convictions affirmed. Rivard v. United States, 375 F.2d 882 (5 Cir. 1967).
The appeal, rather unusual these days in that Miller claims he was innocent of the crime charged, raises what the Government has identified as twenty-five separate points; very likely there are even more. A summary of the evidence is essential to put them in proper focus.
The Government's case, presented in the main through one Joseph Michel Caron, established a large-scale conspiracy to smuggle heroin into the United States in which a resident of the Bridgeport, Conn., area described by the participants as Frank or Frankie was an important cog. The tale begins with meetings between Caron, Massey, Jones and Rivard in and near Montreal in May and June 1963. Caron and Jones were initially to purchase new cars; Massey and then Jones went to Europe for supplies. In August Groleau instructed Caron that Massey was returning to Montreal by ship "with a load of white powder," and that Caron should case the pier for the presence of police and then meet Massey. The latter's car was unloaded from the ship, and the two drove to a nearby tavern at St. Austache; en route Caron saw Rivard following in another car. Massey and Rivard entered the tavern while Caron guarded the car; Massey soon left the tavern, parked the car and told Caron it had 68 pounds of white powder which would be unloaded; still later Massey said that Caron was to take the load to some place in the United States. After a week or two, Caron was instructed that a Howard Johnson restaurant in Flint, Michigan, was to be the place; he received $700 as a fee and $88 for use of his car, a 1962 Chevrolet. The Flint expedition was cancelled at the last moment, and Caron and his wife took a pleasure trip to New York City instead. After an interval, Rivard and Massey gave a new designation, the Bridgeport Motor Inn. Massey loaded the Chevrolet with dope, and Caron and wife drove off for Bridgeport, phoning Rivard after crossing the border as instructed. On arrival at the Motor Inn, Caron registered as Mr. Robert and left the car with one door unlocked, his keys and registration in the ashtray, and a paper with his room number on the windshield. Shortly thereafter a man whom he identified as Miller came to his room with the keys and registration, said he could not take the car that day, and instructed Caron to put it in the parking lot and await orders. On the next day Miller phoned that he would be unable to unload then but that Caron should leave the car in the motel parking lot and await further instructions. The following morning he telephoned that would be the day.*fn1 Caron then unlocked one car door and left the keys and registration in the ashtray as before; around noon he noticed the Chevrolet was gone. Miller returned it during the afternoon and Caron perceived that a large bump in the back rest of the front seat had disappeared.*fn2 On Caron's return to Montreal, Rivard asked, "How is Frankie my friend?" Caron, who had not previously known the Bridgeport man's name, confirmed his good health and added that he had beautiful hair; Rivard responded that he was a hairdresser. In fact Miller was the proprietor of a chain of beauty shops.
In September Groleau instructed Caron to render the returning Jones the same services at the Montreal pier that he had performed for Massey. A contretemps occurred when Jones' car caught fire while being driven to a rendezvous with other conspirators. Jones confided that it contained 84 pounds of white powder he had obtained in France, and that Groleau had paid him $1700 for his efforts. Later Rivard told Caron he was to take Jones' load to the Bridgeport Motor Inn, after which he was to undertake journeys to France or Mexico City. Caron parked his car on a Montreal street and someone picked it up to transfer Jones' load. Later Rivard supplied him with funds and said he would "get in touch with the man in there, with Frank" and tell him "to make it fast" on this occasion and not consume three days as he had before. Caron was to follow the same procedure as on the first trip and was encouraged to take three children as well as his wife; Rivard thought "it looks better when you cross the border with your kids." Caron crossed the border around nine o'clock, phoned Rivard as instructed, spent the night in Albany, and reached the Motor Inn around noon on September 20. While the family was eating lunch at a nearby restaurant, Mrs. Caron noticed a man around the car. Caron went out, found Miller and another man, and gave Miller the keys and the registration. Later Miller entered the restaurant, where Caron had resumed his meal and had Caron join him for a cup of coffee. Miller advised that it would be too risky for Caron to come back -- "two times is enough times" -- and that he should tell Rivard to send him to Flint "next time." Caron, with Miller accompanying, drove his Chevrolet about a thousand feet; the other man followed in a second car. Then Miller told Caron to alight and go back to the Motor Inn; the Chevrolet was returned later in the day and the Caron family departed for Montreal the following morning.
The final act begins with a meeting between Caron and Rivard to settle some financial matters at the "domaine ideale," a summer resort near Montreal owned by the latter. Rivard asked whether Caron wanted to go to Mexico City and, on receiving an affirmative answer, said he would get in touch. The order soon came; Caron was to go to the El Diplomatico Hotel on arrival in Mexico City, phone a man named Jorge, and utter a password. Rivard instructed on the technique of loading dope in the back rest and gave Caron the tools for surgery on the upholstery. Armed with these and $1200 expense money Caron and wife drove off. After the arrival in Mexico City there were many complications and telephone calls to Rivard to unravel them. Finally the Chevrolet was loaded by the local branch of the conspiracy and, on Rivard's instructions, Caron was given a piece of paper bearing the words "Stradford Motor Inn, Connecticut Exit 32,"*fn3 along with instructions as to where and when to cross the border and to call Rivard to report success.
This time the plan miscarried. Caron's car was stopped on entering Texas at Laredo at 8 A.M. on October 10, and 76 pounds of heroin were removed from the back seat and panels. Between 2 and 6 A.M. on the morning of October 11 Miller and another man checked into the Luxor Baths on 46th St. in New York City, where Miller registered under the name of James Martin of Providence, R.I. The significance of the journey and of the use of an assumed name was heightened by Caron's testimony, developed on cross-examination, that Rivard had told him Frank "hung out" in New York City between 44th and 48th Streets.
Mrs. Caron corroborated her husband's testimony and identified Miller as the man she had seen on two occasions in Bridgeport. Many details, including Caron's phone calls to Rivard, were substantiated by independent evidence. Miller did not testify. The defense was an alibi, namely, that Miller was in his beauty salon at the times Caron placed him at the Motor Inn. Customers testified they were at the salon at the times indicated for their appointments but most of them were not under Miller's own care. Employees testified Miller never left the salon during the weeks of Caron's trips to Bridgeport. However, Miller's uncle by marriage, see fn. 1, contradicted this, saying that in August and September, 1963, Miller was out of the beauty parlor once and sometimes twice daily to supervise construction of another salon in a town 20 minutes away. This also was the time required to drive, at posted speed limits, to the Bridgeport Motor Inn.
We have stated the evidence at this much length because the mere recital very nearly suffices to answer many of appellant's arguments. The claim that the Government proved only two isolated transactions against Miller and thus failed to show his membership in the conspiracy under the rule of United States v. Koch, 113 F.2d 982 (2 Cir. 1940) and similar cases is frivolous. It ignores such important facts as the large quantities involved, Miller's own statements about Rivard and Flint, Rivard's inquiry concerning "Frank," and the clear evidence of prearrangements. Experienced counsel should not burden the court by repeating the statement, discredited both in logic and in law, see United States v. Nuccio, 373 F.2d 168, 173 (2 Cir.), cert. denied, 387 U.S. 906, 87 S. Ct. 1688, 18 L. Ed. 2d 623 (1967), and cases cited, that it is the defendant's "words and acts alone which reveal whether he joined a conspiracy." How counsel can seriously urge "the absence of evidence that narcotics were delivered to the defendant or that defendant knew he was receiving narcotics" since "the evidence connecting defendant to a conspiracy is as consistent with a conspiracy to deal in diamonds, gold, geodetic maps, stolen securities or any other contraband as it is with a conspiracy to traffic in narcotics," passes understanding. Frivolous also is the claim that venue as to Miller was improperly laid in the Southern District of Texas since the "Mexican" conspiracy was allegedly separate and apart from any that Miller was proved to have joined. There ...