Appeals by six defendants from judgments of conviction, following jury verdicts of guilty, on one count of conspiracy to violate the narcotics laws, 21 U.S.C. § 846 and 26 U.S.C. § 7237(b); and by four defendants on four counts charging the substantive offenses arising under 26 U.S.C. §§ 4705(a), § 7237(b), 21 U.S.C. §§ 812, 841(a) (1) and 841(b) (1) (A), in the United States District Court for the Southern District of New York, Frankel, Judge. Judgments reversed on the conspiracy count as to Capra, Guarino and DellaCava and judgments affirmed on the conspiracy count as to Harris, Morris and Jermain; judgments affirmed on the substantive counts.
Anderson, Feinberg and Mansfield, Circuit Judges.
The indictment in this case charges these defendants-appellants, John Capra, Leoluca Guarino, Stephen DellaCava, Robert Jermain, Alan Morris and George Harris, in five counts with violations of the narcotics laws. Count One alleges that all of the defendants conspired to violate the narcotics laws in violation of 26 U.S.C. § 7237(b) and 21 U.S.C. § 846. Counts Two and Three charge Capra, Guarino, DellaCava and Jermain with selling two kilograms of heroin in August, 1970, and one kilogram of heroin on November 6, 1970, respectively, not in pursuance of a written order in violation of 26 U.S.C. §§ 4705(a) and 7237(b). Count Two relates to one of several sales to Morris, discussed infra, by Capra, Guarino, DellaCava and Jermain, and Count Three concerns one of a series of sales to Harris by these same defendants. Count Four charges Capra, Guarino, DellaCava and Jermain with distributing, and possessing with intent to distribute, five and one-half kilograms of heroin in October, 1971, in violation of 21 U.S.C. §§ 812, 841 (a) (1) and 841(b) (1) (A); and Count Five charges them with the same offense on that date with regard to one kilogram of cocaine.*fn1 These counts relate to the Toledo station delivery, discussed infra. The jury found each of the defendants guilty as charged and a judgment of conviction was entered on each of the verdicts.
There was evidence from which the jury could have found that the defendants Capra, Guarino and DellaCava had formed a New York centered enterprise for the massive marketing of heroin and cocaine in which their functions were loosely but generally divided in this way: Guarino secured the drugs from importers; Capra acted as distributor; and DellaCava made the deliveries.
Later Joaquin Ramos (an admitted co-conspirator but not a defendant) and Jermain transferred drugs from DellaCava in New York to Morris and Harris for sale in the Midwest. Ramos had served 17 years in federal prisons for narcotics violations and after his release in 1969, immediately began to frequent the Havemeyer Social Club in the Bronx, at the invitation of its proprietors, Capra, Guarino and DellaCava. The Club was one of the fronts for the enterprise. Guarino offered to reestablish Ramos in the narcotics business, and while the latter considered the proposition, he helped count and secret away money which DellaCava brought into the Club.
By the fall of 1969 Ramos and a partner were distributing a kilo of heroin each month. His usual routine was to place orders with Guarino or Capra at the Club and leave a car there, with a full tank of gasoline, so that DellaCava could pick up the drugs and, after driving around the City to insure that he was not being watched, return, leaving the narcotics in the trunk of the car for distribution by Ramos.
Jermain, whose major customer was Harris, a Detroit drug dealer, entered into a partnership with Ramos in March, 1970. On instructions from Capra, they developed a pattern of dealing in which Harris paid for the narcotics with "front money," i.e. payment in advance, and Ramos or Jermain delivered the drugs to him or one of his agents. Later in 1970, Ramos and Jermain established an additional outlet with another Midwestern dealer, Alan Morris, who by 1971 was placing orders every three or four months for approximately $150,000 worth of heroin. As their business expanded, they not only demanded "front money" from Morris, but also refused to meet with him in New York City. Instead, Ramos or Jermain checked the packages of narcotics in public terminals and then forwarded the claim checks to Morris, who picked up the drugs without ever meeting the distributors face-to-face.
The growth of the enterprise, as outlined by Ramos and corroborating witnesses, was further described by federal and state narcotics agents who engaged in prolonged and intensive surveillance of these defendants.
In their several appeals the defendants-appellants launch their principal attacks upon their convictions by arguing that the trial court's denials of their pre-trial suppression motions, relating to the admission of evidence of certain instances or episodes of joint criminal activities by them, were error and call for reversal. These occurrences, hereinafter more particularly described, were the Toledo railroad station delivery, the wiretap at Diane's Bar, and the discovery of heroin traces and other evidence taken from DellaCava's car on April 14, 1973. The appellants further claim that improper press coverage at the time of their arrests also requires reversal of all the judgments of convictions. These issues will be discussed seriatim.
I. The Toledo Railroad Station Delivery
In the summer of 1971, Morris placed a large order with Ramos for heroin and cocaine, for which he delivered payment of approximately $150,000 "front money" in New York City in September. During a meeting with Capra at the Lake Isle Country Club in Westchester, New York, Ramos put this cash in the trunk of Capra's 1972 Lincoln Continental.
Capra, Guarino, DellaCava, Jermain and Ramos decided that delivery of the narcotics should be at the baggage room of the Toledo railroad station, and on October 20, 1971, at 11:13 a.m., shortly after the arrival of the daily train from New York, Ramos checked a dark Samsonite suitcase containing the drugs with the Toledo baggage agent.
Because of what he believed to be suspicious circumstances concerning the baggage check, including Ramos' appearance and attitude, as well as the fact that luggage was normally left in lockers and not in the baggage room, the baggage agent feared the suitcase might contain a bomb particularly after it remained unclaimed for over a week. On October 28, one of the agents, with the assistance of the Toledo police, opened the suitcase and discovered the 5 1/2 kilos of heroin and the 1 kilo of cocaine.
Willie Middlebrook, an unindicted co-conspirator, presented the claim check on October 30, at 8:50 a.m. and after receiving the suitcase, went upstairs and met Morris in a luncheonette where they were both arrested.*fn2
The distribution of these narcotics formed the basis of Counts Four and Five against Capra, Guarino, DellaCava and Jermain. The narcotics were also used as evidence of the conspiracy, Count One. Capra, Guarino, and DellaCava claimed that the drugs were illegally seized, but the trial court ruled that none of these defendants had standing to raise Fourth Amendment objections to the admission of this evidence because none of them had retained a possessory interest in it.
The defendants contended that Jones v. United States, 362 U.S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725 (1960), grants them automatic standing in possessory crimes. The Supreme Court, however, has recently limited the availability of automatic standing under Jones to, at most, those charged with "an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure." Brown v. United States, 411 U.S. 223, 229, 36 L. Ed. 2d 208, 93 S. Ct. 1565 (1973); see United States v. Pui Kan Lam, 483 F.2d 1202 (2 Cir. 1973); United States v. Sullivan, 488 F.2d 138 (5 Cir. 1973); United States v. Hutchinson, 488 F.2d 484 (8 Cir. 1973).*fn3 These defendants were not charged with physical possession at the time the goods were seized and, therefore, under the new criteria for standing stated in the Brown case, they had the burden of proving that they had retained a possessory interest.
To prove that interest, Capra, Guarino and DellaCava testified at the suppression hearing that the suitcase was theirs, that $38,000 was still owing for the drugs, and that their understanding with Morris was, if the drugs were defective in quality or stolen prior to delivery at Toledo, the front money would be returned. The trial judge dismissed these arguments as unpersuasive and held that the defendants transferred any interest they may have had in the suitcase or its contents when Ramos checked it on October 20, 1971; that any continuing interest of the defendants in the $38 suitcase, itself, was negligible; that the receipt of the front money satisfied the monetary interest which they had in the narcotics; and that any warranty as to the quality of the narcotics or any special contract conditions as to risk of loss were irrelevant to the question of ownership of the seized goods. See United States v. Palazzo, 488 F.2d 942, 947-48 (5 Cir. 1974). These findings were further supported by Ramos' testimony at the trial that all of the front money went to Capra, Guarino, and DellaCava, and that the balance due of $38,000 was the share belonging to Jermain and him. Where defendants, through the use of front money and baggage checks, have exerted such efforts to insulate themselves from personal possession of narcotics, they are hardly in a position to object that they have been "hoist with their own petard." None of the defendants was able to prove that his reasonable expectations of privacy were infringed by the search of the suitcase, see Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967), and, consequently, each lacks standing to challenge the legality of the search.
While Jermain might have been able to establish a possessory interest on the basis of the money owed, he did not seek to do so at trial and cannot make such a claim for the first time now. See United States v. Gitlitz, 368 F.2d 501 (2 Cir. 1966), cert. den. 386 U.S. 1038, 18 L. Ed. 2d 602, 87 S. Ct. 1492 (1967).
The trial court, therefore, was correct in denying the motions to suppress because these defendants lacked standing to question the propriety of this search and seizure.*fn4
II. The Wiretap at Diane's Bar
To corroborate Ramos' testimony that this was an ongoing conspiracy involving all the defendants, the Government offered several transcripts and recordings of wiretaps involving DellaCava, Guarino, and Capra, and the testimony of the officers who conducted surveillance of the defendants on the basis of leads provided by the wiretapping. The defendants moved, prior to trial, for the suppression ...