Appeal from a judgment of conviction for conspiring to import quantities of hashish into the United States, entered in the United States District Court for the Eastern District of New York, after a trial before Jack B. Weinstein, Judge, and a jury.
Moore, Mulligan and Oakes, Circuit Judges. Oakes, Circuit Judge (concurring in part, dissenting in part).
Appellants Michael and Janet Falley, together with David Stolzenberg, Marcia Stolzenberg and Nicholas Christon, were charged in eight substantive counts with violations of Section 2(h) of the Narcotic Drugs Import and Export Act, 21 U.S.C. § 176 (a) and the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq. and in a ninth count with conspiracy to violate said laws. At the close of the government's case, the trial court dismissed the indictment as to Marcia Stolzenberg, dismissed counts 2 and 6 as to her husband David Stolzenberg, and counts 7 and 8 as to all defendants. The jury returned a verdict of guilty as to the Falleys and David Stolzenberg on the conspiracy count but was unable to agree on the remaining substantive counts.
The indictment alleged that the named defendants and others had been importing hashish into the United States from June of 1970 through April of 1972. The government based its case mainly on the testimony of two informers--David Gibbons and Nicholas Christon. Christon testified to six substantive counts alleging that the conspirators had smuggled hashish into the United States from India in table tops and brass nameplates. No table tops, brass nameplates or hashish involved in any of those charges were ever produced by the government. Gibbons testified that on two occasions, in October and December, 1970, he smuggled hashish into the United States from Morocco. None of that hashish was ever produced by the government. David Stolzenberg and the Falleys were each sentenced to a $15,000 fine and three years imprisonment on a conspiracy count. In addition Michael Falley was adjudged guilty of two separate contempts of court for refusing to produce his and his wife's passports. He was sentenced to fifteen days imprisonment upon each contempt.
The indictment alleged that during a two year period, beginning approximately April, 1970 and ending in approximately April, 1972, appellants, together with their co-defendant David Stolzenberg, engaged in smuggling some two thousand pounds of hashish from locations in Spain, Morocco and India into the United States for resale to distributors of hashish in the New York area. The government claimed that defendants accomplished this primarily by arranging for the concealment of quantities of hashish inside table tops and brass nameplates which were then shipped from Morocco, Spain or India to dummy companies set up for this purpose by appellants and Stolzenberg in New York. The individual shipments ranged in weight from fifty to one hundred pounds and occurred on a more or less monthly basis during this two year period. In addition, there was also testimony that on occasion the conspirators had received smaller quantities of hashish from abroad through a courier, David Gibbons.
In order to prove this smuggling scheme, the government relied on the testimony of two accomplice witnesses, Gibbons, the courier, and Christon, whose function in the conspiracy was to act as a salesman to middle level distributors. Christon testified concerning the partnership arrangement between himself, appellants and David Stolzenberg and as to the arrangements whereby hashish, concealed in furniture and artifacts, would be shipped to the dummy companies. Christon further testified concerning nine separate hashish importations in which he had participated with appellants and Stolzenberg. The second accomplice witness, Gibbons, testified that on two separate occasions he had smuggled hashish into New York which he delivered to appellants and David Stolzenberg.
In order to corroborate Christon's testimony, the government called two airport customs brokers, Thomas Coscetta and Vito Pepitone. Through customs broker Coscetta, the government showed six separate shipments of brass nameplates from New Delhi, India, to Leo Importing Company, Inc., a corporation operated by the Falleys.
In order to bolster and corroborate Gibbons' testimony the government introduced into evidence a suitcase containing five kilograms of hashish together with small quantities of heroin and pharmaceutical paraphernalia. This suitcase, which belonged to Gibbons, had been seized on December 26, 1971, following a routine customs inspection of Gibbons' baggage at Kennedy Airport, during which the hashish was discovered. Gibbons, who had been arrested following this discovery, testified that this shipment of hashish was to be delivered to David Stolzenberg only, and had nothing to do with the Falleys. This attempted importation by Gibbons was wholly unrelated to the incidents which were the subject matter of the indictment.
To further corroborate the accomplice witnesses' testimony, the government put into evidence travel agency records and testimony by a travel agent showing that during the period charged in the conspiracy appellants and Stolzenberg had spent in excess of $20,000 for air fare alone and had traveled to Spain, Morocco and India. In addition, Judge Weinstein permitted the government to put into evidence the Falleys' 1970 and 1971 federal income tax returns.
During the course of trial Judge Weinstein ordered the Falleys to produce their passports pursuant to a government subpoena. Michael Falley, who had custody of both his wife's passport and his own, refused to comply with this order. For these refusals Judge Weinstein sentenced Michael Falley to consecutive sentences of 15 days in prison, to be served in addition to the sentence imposed upon him by the conspiracy count on which he was convicted.
The first error stressed by appellants was the introduction of the suitcase and the circumstances under which it was introduced. During the course of Gibbons' direct examination, the prosecuting attorney asked that a suitcase be accepted into evidence. A uniformed customs inspector brought the suitcase to the counsel table. The suitcase was admitted into evidence over the strenuous objection of defense counsel. The customs inspector in front of the jury then proceeded to remove some bags from the suitcase and to display them on the prosecution counsel's table. After he had removed several bags, the court ordered him to stop. At this point the prosecutor remarked: "Okay, I'll leave it in. If there are going to be that many, I'll leave it in." Appellant's Appendix at 100. Gibbons identified the suitcase as one which he had tried to bring into the United States on December 26, 1971. He then came down from the stand and identified the contents of the bags as hashish. A quantity of heroin and some hypodermic syringes were also found in the suitcase. After the identification Judge Weinstein ordered that the suitcase and its contents be removed from the courtroom because the odor emanating from it was marked and offensive.
Defense counsel protested vehemently throughout this presentation. Again and again he argued that the suitcase had no bearing on the case being presented against his clients. The prosecution responded that the relevance of the evidence would be established. Unfortunately, the prosecution's prediction never came true. In admitting the suitcase, the trial court decided that it was brought into court for one reason only--to buttress the credibility of accomplice Gibbons. According to the trial court, the prosecution wanted to show that Gibbons' testimony was ...