Appeals from judgments of conviction after jury trial in the Southern District of New York, Charles M. Metzner, District Judge, finding the three appellants guilty of conspiring to possess and distribute hashish and one appellant, in addition, guilty of the substantive offense of possessing hashish with intent to distribute it, in violation of the Comprehensive Drug Abuse Prevention and Control Act of 1970. Affirmed as to appellants Floyd and Miller; vacated as to appellant Lesavoy who is deceased.
Waterman, Friendly and Timbers, Circuit Judges.
Appellants Floyd, Lesavoy and Miller appealed from judgments of conviction entered upon jury verdicts after a seven day trial in the Southern District of New York, Charles M. Metzner, District Judge, finding the three appellants guilty on one count of conspiring to possess and distribute 1500 pounds of hashish,*fn1 in violation of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 812, 841(a) (1), 841(b) (1) (B) and 846 (1970), and finding Lesavoy guilty on a second count of possessing 1099 pounds of hashish with intent to distribute it, in violation of the same substantive provisions of the Act.*fn2
Of the numerous claims of error raised on appeal by appellants Floyd and Miller, we find the following to be the principal ones: (1) Floyd claims that there was no proof of an overt act in furtherance of the conspiracy prior to his withdrawal, and that the court erred in its charge on conspiracy; (2) Miller claims that certain of his incriminating statements were erroneously admitted in evidence because he was not given sufficient Miranda warnings, and that his sentence was based on improper considerations; and (3) both appellants claim that the court erred in discharging a juror and replacing him with an alternate part way through the trial. Other subordinate claims of error are also raised.
In view of the issues raised on appeal, the following summary of the events in late October and early November 1972 which culminated in the arrest of appellants is believed necessary to an understanding of our rulings on those issues.
On October 30, a government informant introduced Special Agent Hochman, of the Bureau of Narcotic and Dangerous Drugs (BNDD), to one James Krell at the latter's home in New Jersey. The purpose of the introduction was to enable Hochman, who was acting in an undercover capacity, to purchase hashish from Krell. Although the meeting had been arranged for the purchase of three pounds of hashish, Hochman told Krell that he was interested only in a larger amount. Krell said that he had access to 900 pounds of hashish located in Manhattan which was under the control of one Peter Axelrod and appellant Floyd. At the conclusion of this meeting, Hochman and Krell agreed that any sale would take place in a Manhattan hotel, but that Krell would do nothing until he was assured of payment.
Later that evening after Hochman had departed, Krell called Floyd and informed him that he had a buyer for large quantities of hashish. Floyd agreed to arrange a meeting with "the people in New York" and to call Krell back.
On the following evening, October 31, Floyd picked up Krell and drove him from his home in New Jersey to 270 Riverside Drive in Manhattan where they met Axelrod in the latter's apartment. There they discussed the terms of the sale of hashish to Hochman. Floyd then drove Krell back to his home in New Jersey.
Early the following morning, November 1, at 12:40 A.M., Hochman called Krell at his home.*fn3 Krell stated that the price for the hashish would be $450 per pound and that his supplier wanted to sell only 100 pounds. The two agreed, however, that Hochman would bring enough money to buy 500 pounds; that Krell would see what he could do; and that Hochman would go to New York later that day and call Krell. Krell then called Floyd, told him that Hochman wanted to buy several hundred pounds of hashish, asked him to come to his house that morning, and told him that he was expecting a call from Hochman during the day.
At about noon on November 1, Hochman called Krell and told him that he had a room in a Manhattan hotel. They agreed to meet there an hour later. Floyd, Krell, appellant Miller and one Steve Abelman then drove to the hotel in Miller's car. Floyd and Krell met Hochman and went with him to his room.
Once in the room it became clear that, although Hochman still wanted to buy 500 pounds, the suppliers for Floyd and Krell did not want to sell that much at the outset. Floyd told Hochman that, based on his conversation with Axelrod and one Steven Liebermann the day before, the initial delivery could not be more than 10 to 20 pounds.
In an attempt to break this impasse, Hochman agreed to "show" the money. He telephoned Special Agent Rottinger of the BNDD who entered Hochman's room and handed Floyd an envelope containing $100,000 in cash. Floyd and Krell looked through the envelope and returned it to Rottinger. Floyd then telephoned Axelrod twice. Hochman finally agreed to accept a first shipment of 50 pounds. Floyd sent Krell for the hashish and told him to have Axelrod call the hotel room before they returned with the hashish. Floyd and Hochman waited in the room.
Krell drove to 270 Riverside Drive with Miller and Abelman who had been waiting outside the hotel. After Krell met Liebermann and Axelrod in the latter's apartment, they went to a public phone booth from which Axelrod called Floyd and told him to call Axelrod back at the booth. He did. From a public phone in the lobby of Hochman's hotel, Floyd called Axelrod and handed the receiver to Hochman. Axelrod told Hochman that he would make an initial delivery of 50 pounds and then three or four subsequent trips, for a total of 400-500 pounds. He told Hochman that Krell would have the 50 pounds when he ...