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United States v. Maxwell

decided: August 8, 1967.


Waterman, Smith and Kaufman, Circuit Judges.

Author: Smith

J. JOSEPH SMITH, Circuit Judge:

Noel Maxwell, John Henry Purry, Clarence White, William Adams and Leonard R. Aiken appeal from judgments of conviction entered in the United States District Court for the Southern District of New York after a jury trial before Judge Charles H. Tenney. All five appellants were convicted of conspiring to violate 21 U.S.C. §§ 173, 174; Maxwell, Purry and White were also found guilty of substantive violations of those sections. Adams was sentenced to five years imprisonment; Maxwell, Purry and White received concurrent sentences of six, seven and eight years, respectively; Aiken was fined $15,000 and sentenced to a term of thirteen years imprisonment to run concurrently with an existing twenty-five year sentence. See, United States v. Aiken, 373 F.2d 294, 296 (2d Cir. 1967). We have examined the joint and several points raised by appellants, find them to be unpersuasive and, therefore, affirm the convictions.

Appellants assert that the evidence of guilt on the conspiracy count was insufficient in that the government did not bear its burden of proving beyond a reasonable doubt (1) that an overall conspiracy existed, (2) that each appellant was a member of the conspiracy, (3) that each knew all of his alleged co-conspirators, and (4) that each was aware that the cocaine had been illegally imported. This point fails in all respects.

Taking the evidence in the light most favorable to the government, as we must, United States v. Fiorillo, 376 F.2d 180 (2d Cir. 1967), the jury could have found that during the years 1956, 1957 and 1958 three seamen, Jesse Colson, Winston Massiah and Mitchell Anfield, purchased large quantities of cocaine from one Rene Hausaff in Valparaiso, Chile. They then transported the cocaine on their ships to New York City where it was carried ashore by longshoremen and subsequently sold to Aiken, to a duo composed of Maxwell and Adams, to a trio formed by Purry, White and one Nick Holiday or to others.

The evidence which inculpated appellants on the conspiracy and substantive counts may be condensed as follows. On June 18, 1956, Colson brought in some cocaine and met a colleague named Granville Smith who took Colson to Purry's apartment where he introduced him to Purry. Purry, in turn, introduced Colson to White and Holiday. The men conversed and White, Purry and Holiday agreed to cut and distribute cocaine to be imported by Colson and Smith. The three agreed further to furnish Colson with money before his ship sailed. Colson landed again on July 31, 1956 and complained to Smith and Purry about not having received the promised funds but later delivered a quantity of cocaine to Smith in Purry's presence. Colson subsequently took back half of the cocaine because of non-payment, sold it to Maxwell for $12,000 but, at Massiah's request and in the presence of Adams, paid back $300 because the weight was short. Thereupon, Maxwell, pleased with Colson's way of doing business, asked to be notified of the next shipment. In August of 1956, Colson and Anfield met with Purry, White and Holiday; Purry suggested that they not deal with Smith any more because he had defalcated with their funds, Colson agreed and Purry asked to be informed of the next shipment.

Later in August, Purry, White and Holiday agreed to purchase $600 worth of cocaine through Massiah but failed to deliver the cash before Massiah's ship sailed. When Massiah returned in early October, he sold cocaine to Maxwell and Adams. Massiah subsequently stated that he had been robbed and Maxwell, Adams, White and Purry, among others, unsuccessfully attempted to recover the supposedly stolen cocaine. On October 30 Colson and Anfield sailed carrying with them $600 from Purry, White and Holiday. Upon the ship's return on December 10, Colson delivered cocaine to the trio and sold Maxwell and Adams $16,000 to $18,000 worth of cocaine. Early in 1957 and later in June of that year sales of more cocaine to Purry, White and Holiday and to Maxwell and Adams occurred and were financed in the same way with the trio paying in advance and the duo paying on receipt. In July of 1957 Maxwell and Adams made a $2,500 purchase and a similar sale occurred later that summer. At that time Colson gave Purry, White and Holiday cocaine on consignment but when payment was not forthcoming, Colson retrieved the cocaine.

Toward the end of 1957, Colson informed Aiken that he received shipments of cocaine and Aiken told Colson to have one Schoolboy Ellis contact him when a shipment arrived. Colson subsequently sold Aiken $2,500 worth of cocaine. Later on, in the fall of 1958, Aiken purchased a quantity of cocaine for $12,500 and, at the same time, Colson made further sales to Maxwell and Adams. That same year, Colson made a sale to Aiken at a reduced price because a prior delivery had been defective. Further proof of at least two more sales to Aiken was adduced.

As the above-described evidence demonstrates, appellants' attack on the sufficiency of the evidence is unavailing. The jury was clearly entitled to find a single conspiracy with Colson, Massiah and Anfield supplying cocaine from the same source in Chile for sale and distribution by appellants in New York City. Moreover, as detailed above, the government submitted adequate proof of Purry and White's substantive violations on June 18, 1956 and Maxwell's similar offense on July 31, 1956. The government's proof, furthermore, showed numerous sales to each appellant and thus secured each man to the conspiracy. Compare United States v. Stromberg, 268 F.2d 256, 267 (2d Cir.), cert. denied 361 U.S. 863, 80 S. Ct. 119, 4 L. Ed. 2d 102 (1959). Thirdly, it is irrelevant that each appellant did not know all of his alleged co-conspirators. United States v. Edwards, 366 F.2d 853, 867 (2d Cir. 1966), cert. denied sub nom. Parness v. United States, 386 U.S. 1012, 87 S. Ct. 1358, 18 L. Ed. 2d 442 (1967). Lastly, regardless of the evidence of actual knowledge by appellants that the cocaine came from Chile, possession of cocaine coupled with the permissible inference of §§ 173, 174 is adequate evidence of knowing illegal importation. United States v. Tucker, 380 F.2d 206 (2d Cir. June 28, 1967).

Maxwell, Purry, White and Adams contend principally that they were denied their Sixth Amendment right to a speedy trial. Appellants were indicted with seven others*fn1 on March 3, 1961. The five appellants, along with three of their co-indictees (Massiah, Anfield and Thorn) were forthwith brought to trial on June 13, 1961 before Judge J. Skelly Wright, sitting by designation, and a jury. The next day, however, Judge Wright declared a mistrial and on June 15 granted the government's motion to sever Maxwell, Purry, White and Adams. Trial commenced as to Aiken, Massiah, Anfield and Thorn, and on June 29 a jury found all four defendants guilty. We reversed the convictions of Aiken, Anfield and Thorn in United States v. Massiah, 307 F.2d 62 (2d Cir. 1962), and the Supreme Court reversed Massiah's conviction in the noted decision, Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964). Almost five years after Judge Wright declared the mistrial, Maxwell, Purry and Adams moved on June 3, 1966 to dismiss the indictment for want of prosecution. Judge William B. Herlands denied their motion on June 20 and appellants were subsequently brought to trial before Judge Tenney and a jury on October 17, 1966.

Maxwell, Purry, White and Adams lack standing to claim that the longer than five year delay between mistrial and retrial deprived them of a speedy trial. Since none of these appellants ever demanded a speedy trial, each has waived this Sixth Amendment right. United States v. Lustman, 258 F.2d 475 (2d Cir.), cert. denied 358 U.S. 880, 79 S. Ct. 118, 3 L. Ed. 2d 109 (1958). Even were we to treat the June 3, 1966 motion to dismiss made by Maxwell, Purry and Adams as a demand for a speedy trial, which we do not, it would not avail these appellants, because they were speedily tried thereafter.

Aware that their claims are barred under Lustman, appellants invite us to abandon the so-called demand rule which we have consistently applied in a constantly lengthening line of cases.*fn2 We decline the invitation, however, because the reasoning of Lustman, that the demand rule is consonant with the bulk of federal authority and preserves the speedy trial right as a shield for the defendant's protection but not as a sword for his escape, is still to us persuasive.

Maxwell and Aiken next claim that the admission of the government's exhibit 87, which was a typewritten transcript of an incriminating conversation between Maxwell and Colson, violated their rights under the due process clause of the Fifth Amendment. The background of exhibit 87 is as follows. On March 5, 1960, Customs Agent Finbarr Murphy installed a minifon recorder in the glove compartment of Colson's automobile; Colson then picked up Maxwell and recorded a forty-five minute conversation which the two men had. Murphy subsequently removed the recorder, listened to the conversation and stored the recorder in his locker. In March or April of 1960 he made a conventional tape from the more expensive minifon wire. On November 30, 1960, while listening to the re-recording through earphones, Murphy dictated approximately ten minutes of the forty-five minute conversation to a shorthand stenographer whose notes were typed. Murphy then compared the transcript with the re-recording and was satisfied that the transcription was accurate. The portions deleted were either irrelevant, inaudible or repetitive. In July 1961, under the impression that there would not be a re-trial, Murphy put the minifon wire and the re-recording back into circulation where, in the normal course of affairs, the conversations were erased when the wire and tape were re-used.

At the voir dire, Maxwell objected to the admission of the transcript because the recording was made in violation of his right to counsel. He does not press this point on appeal. In any event, it is meritless. See, United States ex rel. Molinas v. Mancusi, 370 F.2d 601 (2d Cir.), cert. denied 386 U.S. 984, 87 S. Ct. 1285, 18 L. Ed. 2d 232 (1967), and cases cited therein. What Maxwell does argue is that the accuracy of the transcript cannot be ascertained and that whether the transcript honestly reflects the tenor of the whole conversation cannot be determined. The deletion of the inaudible, ...

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