Appeals from judgments of conviction after jury trial in the Southern District of New York, Frederick vanPelt Bryan, District Judge, finding all appellants guilty of conspiring to distribute hard narcotics in violation of 21 U.S.C. § 846 (1970), finding all appellants except Sisca and Hoke guilty of using communication facilities in furtherance of the conspiracy in violation of 21 U.S.C. § 843(b) (1970), and finding appellant Abraham guilty of engaging in a continuing criminal enterprise involving hard narcotics in violation of 21 U.S.C. § 848 (1970), the principal issues on appeal relating to the sufficiency of the evidence, the government's alleged failure to "minimize" its electronic surveillance and the propriety of the district court's denial of appellants' motions to suppress wiretap evidence as untimely. 361 F. Supp. 735 (S.D.N.Y. 1973). Affirmed.
Moore, Hays and Timbers, Circuit Judges.
Appellants Alphonse Sisca, Willie Abraham, Walter Grant, Margaret Logan, Robert Hoke, Erroll Holder, William Brown, Leonard Ellington and Lavern McBride*fn1 appeal from judgments of conviction entered upon jury verdicts returned in the Southern District of New York on February 23, 1973 after a six week trial before Frederick vanPelt Bryan, District Judge, finding them guilty of conspiring to distribute hard narcotics in violation of 21 U.S.C. § 846 (1970) (Count One); finding all except Sisca and Hoke guilty of using communication facilities in furtherance of the conspiracy in violation of 21 U.S.C. § 843(b) (1970) (Count Three); and finding Abraham guilty of engaging in a continuing criminal enterprise involving hard narcotics in violation of 21 U.S.C. § 848 (1970) (Count Two).
Of the numerous claims of error raised on appeal, we find the following to be the principal ones: (1) McBride, Hoke, Ellington, Brown and Sisca challenge the sufficiency of the evidence as to them; (2) Grant, Logan, Hoke, Holder and Abraham claim that there was a material variance between the single conspiracy charged and the multiple conspiracies said to have been proven; (3) Abraham challenges the constitutionality of the continuing criminal enterprise statute on its face and as applied to him; and (4) all appellants claim that the government's failure adequately to minimize its electronic surveillance requires total suppression of the wiretap evidence and its fruits, and they further claim that their deliberate refusal to move to suppress on that ground prior to trial did not constitute a waiver of their constitutional right to do so thereafter. Other subordinate claims of error are also raised.
The evidence, derived largely from wiretaps and their fruits, established that appellants and others were wholesale and major retail operatives in a large scale, vertically integrated heroin and cocaine*fn2 distribution network embracing Westchester County, New York City and New Jersey. Sisca and one Benjamin Castalozzo were the top links between unknown sources and this $5,000,000 a year corporate-like criminal enterprise which distributed 200 kilograms of heroin annually. Its day to day operations were directed by Abraham. He controlled the wholesale distribution activities of Hoke, Logan, Grant, Brown, Ellington and Holder, among others. Further down the marketing chain and somewhat closer to the retail level, Holder*fn3 was the proprietor of a heroin cutting and packaging "mill" where he and his wife, Carol, employed five "mill girls" who adulterated and repackaged the heroin for delivery by Ellington to their customers, one of whom was McBride.
(B) Electronic Surveillance
In view of the district court's clear and detailed statement of the facts with respect to the electronic surveillance here involved during the period from September 28 to December 15, 1971, 361 F. Supp. 735, it is sufficient for our purpose merely to summarize briefly those facts necessary to an understanding of our rulings on this issue.
On September 27, the Westchester County District Attorney's Office applied to Judge Timothy Sullivan of the Westchester County Court for an order authorizing a tap of the telephone listed in the name of Carol Holder and located at the Holder residence in Yonkers (the Holder tap). The order was issued the same day. It included, as did the others here involved, a clearly adequate "minimization" provision.*fn4
The tap was installed on September 28 and continued, pursuant to a court ordered extension, through November 24. The interception terminus (plant) was equipped to record both in-coming and out-going calls and to register the telephone numbers of calls made from the Holder phone. Investigators from the Westchester County Sheriff's office attended the plant twelve to sixteen hours a day. Nevertheless, the recording and registering devices at all times were maintained on an automatic setting and were activated each time the telephone receiver was lifted from its cradle. As a result, each call made to or from the Holder phone during the interception period was recorded or overheard, or both. Logs and transcripts of all calls were made.
Relying primarily on information gathered from the Holder tap, the Bronx County District Attorney's office on November 8 applied for and obtained from Justice William Kappelman of the Bronx County Supreme Court an order authorizing a tap of the telephone listed in the name of Margaret Logan and located at the Co-Op City apartment (the Logan tap). This tap was directed principally at uncovering the narcotics related activities of Logan's boyfriend, Abraham. The tap was maintained until December 15, the date of Logan's arrest.
Except for the around the clock monitoring, the Logan tap was conducted in a manner essentially the same as the Holder tap. Each call was automatically recorded and a log was prepared for each reel of tape.
Also on November 8, Justice Kappelman authorized a tap of the telephone listed in the name of Lavern McBride (the McBride tap). As with the Logan tap, the McBride tap was attended 24 hours a day. With one exception, all calls were monitored, recorded, logged and in some cases summarized.
Evidence derived from the three court authorized wiretaps, coupled with visual surveillance, disclosed a vast chain-type narcotics distribution conspiracy. The following summary reflects no more than the tip of the iceberg.
Shortly after the Holder tap was installed on September 28, Holder was overheard discussing a ransom of $14,000 and "you know -- something else", that "thing", "junk merchandise", which had been paid for the return of his kidnapped partner, one Theodore Johnson. Holder also was overheard arranging for precautions to be taken by his "women" in the event they were threatened with kidnapping. The "women" later were identified as Holder's wife, Carol, and the five "mill girls" who operated the narcotics cutting and packaging facility.
At periodic intervals beginning in early October, the Holders were overheard planning a rendezvous with their mill girls. After several unsuccessful attempts, surveillance teams on November 24 finally managed to follow Carol Holder and the five mill girls to their meeting place on Convent Avenue in Manhattan. Armed with a search warrant, the agents raided the apartment in the early morning hours of November 24. They uncovered a narcotics mill in full operation. They found Carol Holder and the girls literally in the midst of packing thousands upon thousands of heroin filled glassine envelopes for retail street sale.*fn5
This raid put a serious crimp in the overall Holder operation. Within two days, McBride was overheard telling a would-be narcotics purchaser that the Holder cupboard was bare. She said, "If Fox (Holder) is out -- everybody's out."
Conversations intercepted on the Holder tap in early November also disclosed the relationship between Abraham, Holder and the latter's courier, Ellington, in the hierarchy for the distribution of heroin. On November 8, at 2:35 P.M., for example, Abraham called Holder and said that he had good news, "Tonight". Ten minutes later and again that evening, Holder called Ellington and directed him to be prepared for a night-time delivery. At 9:43 P.M. the same evening, Abraham called Holder again and said that, although "they didn't give me as many as they were supposed to", Holder ought to send "that boy over". Holder immediately called Ellington and ordered him to "go downtown with it, you know what I'm talking about."
While most of Holder's conversations were guarded and obtuse, their import was clear to those engaged in the business. On one occasion a disgruntled customer called Holder and complained that he had received only four rather than the promised ten ounces on his last narcotics purchase: "Listen Fox. That was four (4) on the scale and four (4) by spoon count. Anyway you weigh it . . . Ya hear me." Holder agreed to "make up the difference" or "give . . . back the scratch".
Interceptions on the Logan tap also indicated Abraham's role as the director of the other appellants. Logan, Abraham's surrogate, frequently was overheard taking messages and orders and planning to attend meetings in Abraham's absence. Grant was at Abraham's beck and call. On one occasion Grant was told by Abraham where and when to meet one who wanted "to buy you know". At other times Grant appeared at Logan's apartment as directed by Abraham. Brown's role as an outlet for Abraham's merchandise also was clearly indicated.
The Logan tap further revealed the roles of Sisca and Castalozzo as the suppliers of narcotics to Abraham. Both were overheard at various times arranging meetings with Abraham or, in his absence, with Logan. On December 13, surveillance agents for the first time were able to follow Abraham to the meeting place and to observe him in his car conversing with Sisca at the appointed hour. Shortly after the meeting began, Castalozzo, who had been serving as a look-out, apparently noticed the surveillance. Immediately upon his warning, "This car is dirty . . . Come on", Sisca got out of Abraham's car. He and Castalozzo got into another nearby ...