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United States v. Bynum

decided: September 24, 1973.

UNITED STATES OF AMERICA, APPELLEE,
v.
ELVIN LEE BYNUM, JOSEPH CORDOVANO, ABRAHAM WRIGHT, LANCE SMALL, NEWBRY MITCHELL, FANNIE MAE GARNETT, JACQUELINE FULLER DYSON, JOHN CONIGLIO, ANGELO MELE, VINCENT ALTAMURA, IRVING BIRNBAUM, JOHN FEROLDI, CHARLES TUZZOLINO AND LEVIS NEDD, APPELLANTS



On Submission to the Court July 2, 1973. Appeals from judgments entered after a jury trial in the United States District Court for the Southern District of New York, Milton Pollack, Judge, convicting all appellants of conspiracy to violate 21 U.S.C. §§ 173 and 174 (repealed 1970) and 26 U.S.C. §§ 4705(a) and 7237(b) (repealed 1970), and convicting appellant Nedd of carrying a firearm during the course of that conspiracy. 18 U.S.C. § 924. The panel previously remanded the case for an evidentiary hearing to determine whether certain wiretap evidence used at trial, had been legally obtained. 475 F.2d 832 (2d Cir. 1973).

Kaufman, Chief Judge, Smith and Mulligan, Circuit Judges.

Author: Mulligan

MULLIGAN, Circuit Judge:

On a previous appeal to this court we remanded this case to the trial judge, Hon. Milton Pollack, United States District Judge, Southern District of New York, for a hearing to determine whether certain wiretap evidence used at trial had been legally obtained. United States v. Bynum, 475 F.2d 832 (2d Cir. 1973). After the hearing, Judge Pollack issued his findings of fact and conclusions of law, upholding the validity of the wiretaps. 360 F. Supp. 400 (S.D.N.Y. 1973). We now affirm the convictions in all respects.

I. THE FACTS

On October 13, 1971 an indictment was filed, charging appellants Bynum, Cordovano, Wright, Small, Mitchell, Garnett, Dyson, Coniglio, Mele, Feroldi, Altamura, Birnbaum, Tuzzolino and Nedd with conspiracy to deal unlawfully in narcotic drugs in violation of 21 U.S.C. §§ 173, 174 (repealed 1970) and 26 U.S.C. §§ 4705(a), 7237(b) (repealed 1970). All appellants were found guilty on this charge. The second count of the indictment separately charged appellant Nedd with carrying a firearm during this conspiracy in violation of 18 U.S.C. § 924. Nedd was found guilty on this charge.*fn1

The primary purpose of the conspiracy, which was alleged to exist chiefly in New York City, from January 1, 1970 until April 30, 1971, was to obtain, process and distribute large amounts of narcotic drugs which had been unlawfully imported into the United States. The furtherance of the common scheme involved one unsuccessful robbery, together with the near fatal shooting of the victim, another aborted robbery and an elaborate plan to murder a corrupt New York City patrolman, who was thought to be cooperating with the authorities. The Government's case rested principally upon the evidence of George Stewart, a veteran and former college student, whose record was respectable until he invested in a Manhattan restaurant which eventually stripped him of his resources and indebted him to appellant Cordovano, a customer. At Cordovano's suggestion Stewart embarked on a career of selling cocaine in order to repay his debts. Cordovano and Bynum were the key figures in the drug conspiracy here revealed. Bynum was the banker for the group, supplying large sums of money for the purchase of heroin and cocaine. He and Cordovano supplied the drugs and supervised their mixing, cutting, packaging and distribution through Harlem. The distributors there were Wright, Small, Mitchell, Garnett and Dyson. The suppliers of the ring were Altamura, Mele, Coniglio, Tuzzolino, Birnbaum and Feroldi who normally operated through Cordovano.

From May 1970 on, Stewart sold heroin and cocaine for Cordovano on a consignment basis, sharing the profits. Stewart was eventually introduced to Bynum, Coniglio and Mele by Cordovano, and Stewart's role in the group became increasingly important. In September 1970, Cordovano purchased 5 kilos of heroin from Coniglio and Mele for $72,500 in cash which had been supplied by Bynum. Stewart picked up the heroin. Some of the drugs were delivered to Bynum through Cordovano and the remainder were stored in Stewart's girlfriend's apartment. At Cordovano's instruction, Stewart delivered 2 kilos on October 29th to a customer, Shaw, who paid him $38,000. Shaw in turn unwittingly resold to an undercover agent. Stewart was arrested at this sale and was found to possess 1/8 of a kilo of heroin as well as a gun. Bynum supplied the collateral for Stewart's bail bond.*fn2 In December 1970, Stewart was rearrested since a prior sale had also resulted in another resale to an undercover agent. It was at this juncture that Stewart was approached by the Government and agreed to become an informant.

On January 10, 1971, Stewart, at Cordovano's request, proceeded to Bynum's residence with a device for sealing plastic bags. Wright, who was expected to arrive with 2 kilos of heroin to be cut, appeared without the drugs since he was apprehensive of police detection. Bynum, Wright and Garnett left Stewart for another location. Later in the evening they returned to Bynum's apartment complaining of nausea resulting from the inhalation of heroin dust during the cutting operation. Cordovano subsequently brought to Bynum's apartment 5 kilos of cocaine which he stated he had purchased from Altamura. Bynum cut 1/2 kilo of this cocaine with an adulterant. Stewart took a sample of this and the balance was given to Wright. The 4 1/2 kilos of uncut cocaine were stored at the apartment of Stewart's girlfriend and at Cordovano's mother's apartment. Later in January, Stewart met Cordovano, Altamura, Coniglio and Mele at a wake. It was at this point that their conversations indicated that there was a serious shortage of drugs for the local market. Altamura stated that he had a source but the promised sale eventually fell through when his seller demanded $36,000 for 2 kilos of heroin on February 19, 1971.

At this point, desperate to obtain heroin, the core group adopted less orthodox but predictable means of assuring their continuing business. Cordovano and Bynum discussed with Stewart the possibility of robbing one Marty Carlin, a drug dealer who they believed had large quantities of heroin and cash stored in his safe. The plan was that Nedd and one Michael Libbers (an original co-defendant whose motion to dismiss was granted below) would take Carlin to an apartment selected by Stewart where Carlin would be "persuaded" to reveal his safe's combination. Eventually, in March 1971, Bynum, Nedd, Cordovano and Stewart made the final plan to rob Carlin. Nedd located Carlin at a westside hotel, but Carlin resisted and was shot by Nedd. Although he was seriously wounded, Carlin was able to identify Nedd as his assailant. When Nedd was subsequently arrested in New Jersey, he had jewelry belonging to Carlin as well as identification papers belonging to another victim of the attempted robbery.

In the meantime, other efforts were made to secure heroin. On February 25, 1971, Stewart was given $65,000 in cash at Bynum's direction to pay to Altamura for heroin to be turned over for cutting and sale to Garnett and Dyson. Altamura only had cocaine and no heroin. It was then decided to purchase 2 kilos of heroin from Birnbaum whose source was Feroldi. After giving a kilo of plaster in order to cautiously test the delivery plans, Feroldi finally delivered a kilo of heroin on March 13, 1971 to Stewart and Cordovano. Cordovano brought it to Bynum at Dyson's home for cutting. It proved to be impure in quality and somewhat less in quantity than represented.

On March 29, 1971, after meetings with Cordovano, Altamura delivered 2 kilos of heroin to Cordovano and Stewart who brought it to Bynum at Dyson's house. Bynum, Dyson, Garnett, Mitchell, Wright, Cordovano and Stewart, all participated in the cutting and packaging of the drug.

Early in April, 1971, Cordovano and Stewart held separate meetings with Tuzzolino and with Coniglio and Mele for a 5 kilo purchase of heroin. A 2 kilo purchase of heroin was made from Tuzzolino using Feroldi's car to make delivery to Stewart who in turn delivered it to Cordovano. After a variety of furtive maneuvering, this was followed by the usual cutting and repackaging operation at Dyson's residence with Bynum, Cordovano, Stewart, Garnett, Dyson and Small participating.

Cordovano and Bynum also proceeded to plan with Moody (a prosecution witness) to steal heroin and money from two drug dealers in Washington, D.C. Feroldi was an added starter, participating in the planning in mid-April, 1971. The theft was never consummated despite a trip to Washington by Feroldi and Moody who were telephoning Cordovano for advice. They left behind them in Washington police uniforms, chloroform, tape, a sledge hammer and a trunk with a.38 caliber pistol in it. Bynum paid some of their expenses for this aborted scheme.

On April 29, 1971, the partnership business came to an abrupt termination. Bynum and Garnett advised Stewart that an informant had betrayed them. He was identified as corrupt New York City patrolman Wollack who was believed to be talking to federal authorities. Cordovano and Bynum planned that Garnett was to have Wollack visit her home on a pretext. Cordovano and Stewart were to follow him from Garnett's home to the meat market operated by Bynum and Cordovano where he was to be knocked out, searched for bugging equipment, shot to death and placed in a plastic bag. Stewart, who at this point was fully accepted as a member of the core group, even purchased surgical gloves at Bynum's suggestion that the gloves would foil any paraffin test indicating that the apprehended person had recently fired a gun. Stewart fortunately alerted the authorities. Cordovano and Stewart were apprehended en route to the scene, and each was found to possess a loaded hand gun. Two other loaded guns were found in the car.

While the furtive and devious movements of drug conspiracies such as this are unfortunately routinely encountered in the federal courts of this circuit, the detailed facts which amply document and support the Government's case here, are uniquely provided by the informant witness Stewart, whose regular reports to Government agents enabled them to independently make surveillance and confirm the conspiracy and the overt acts charged in the indictment. Thus Stewart's "sample" of cut cocaine received from Bynum on January 10, 1971 was turned over to agents on January 19, 1971. The $65,000 in cash delivered to Stewart on February 25, 1971 at Bynum's request was later photographed by agents. Birnbaum's attempted delivery on March 2, 1971 was subjected to surveillance by agents. The Altamura sale on March 29, 1971 and the subsequent cutting operation were observed by agents. The April 9, 1971 ...


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