Appeals from judgments of the District Court for the Southern District of New York, Milton Pollack, Judge, convicting appellants, after verdicts, of conspiracy to possess and distribute controlled substances and of substantive offenses.
Waterman, Friendly and Gurfein, Circuit Judges.
In these appeals from convictions after jury trials before Judge Pollack in the District Court for the Southern District of New York for distributing and possessing with intent to distribute Schedule I and Schedule III controlled substances, to wit, lysergic acid diethylamide (LSD) and phencyclidine hydrochloride (PCP), 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(B), and for conspiring to commit these substantive crimes, 21 U.S.C. § 846, we must again deal with the consequences of the Government's ill-advised practice of attempting to obtain in a single trial convictions of numerous defendants who are only loosely connected in a criminal enterprise. Before dealing with this we must engage in a tedious summary of the relevant evidence and will consider other grounds of appeal.
The indictment charged appellants, David Ross Miley, Joseph Raymond Wenzler, Marvin Thomas Goldstein, Dean Peter Varvarigos, and David Flores, and four others, William Brandt II, Robin Bachia, John Godinsky, and Jan Lang, with conspiracy knowingly to distribute and possess with intent to distribute controlled substances (Count One) and with eight substantive counts (Counts Two through Nine).*fn1 During the early stages of an earlier trial, Brandt, Godinsky, and Bachia pleaded guilty to the conspiracy count and each also pleaded guilty to a substantive count against him. They did not testify on behalf of the Government and were subsequently sentenced, with the remaining counts dismissed against them. Lang was a fugitive during all of the trial proceedings.
At the first trial, held April 29 through May 8, 1974, the jury found Miley not guilty on Count Two and Wenzler guilty on Count Five, but was unable to reach agreement on the remaining counts, One, Three, Four, Six, Eight, and Nine. The court thereupon declared a mistrial on these counts. It also denied Wenzler's application to set aside the verdict on Count Five on the grounds that there was insufficient evidence to sustain it and that the court had erroneously refused to charge the jury on the entrapment defense with respect to that count.
During the second trial, held June 17 through June 21, 1974, the Government introduced much the same evidence. The Government relied heavily on the testimony of Michael Starbuck, a Government informer, and of Special Agents Robert Nieves and Robert Palombo of the Drug Enforcement Administration, United States Department of Justice. Their testimony was bolstered at points by surveillance testimony. No evidence was introduced by the defendants. Starbuck was a supervisor at a marketing research company which also employed defendant Brandt in his department. According to Starbuck, in June or July of 1972, he, Brandt, and others had made an agreement to import cocaine from South America. While the effort was unsuccessful, it did not go unnoticed. In late October, 1973, Nieves and Palombo arrested Starbuck in connection with their investigation of the attempted importation. Under questioning, Starbuck admitted his participation in the cocaine conspiracy, for which he was indicted several weeks before the second trial. He agreed to assist the agents in finding the sources and other parties in the cocaine conspiracy and later in locating persons dealing in other controlled substances. During the period in which he cooperated with the agents, he received a total of $350 in expense money and the agents told him that they would bring the fact of his cooperation to the attention of the judge who would later preside at his trial. The following is a summary of the Government's evidence, taken in the most favorable light.
On November 3, 1973, Starbuck met Brandt at the latter's room at the Village Plaza Hotel to discuss a possible purchase of marijuana. The subject of LSD transactions also arose. On November 12, Starbuck, Brandt, and a third person attempted to locate a source for the sale of LSD in Woodstock but were unsuccessful. Starbuck returned to the Village Plaza Hotel on November 23 and met Brandt and Miley, who was Brandt's partner in a comic book store venture. Starbuck made arrangements to purchase some 1000 units of LSD for $650 from Brandt, who said his source was Godinsky. Starbuck received a three-unit sample of the drug, which came in the form of dots on blotter paper and which was turned over to the agents four days later. On November 27, the agents decided to make the purchase arranged by Starbuck and, after equipping him with a Kel transmitter belt, accompanied him to the Village Plaza Hotel, near which Palombo established a surveillance post and monitored a Kel receiving device. Reception was poor and the tape made of the transaction inside the Hotel is apparently almost totally inaudible. At Nieves' request, Starbuck introduced him to Brandt as a customer. Also present in Brandt's room were Miley and Godinsky. Godinsky produced ten sheets of blotter paper each bearing 100 units of LSD. Nieves handed over $650 to Brandt, who kept $180 or $200 for himself and gave Godinsky the remainder (these facts are the basis for Count Two).*fn2 Nieves then raised the possibility of much larger purchases of LSD at more reasonable prices. At this point Godinsky left, returned a few moments later to retrieve his knapsack, and left again. The conversation about price resumed, Brandt promising to obtain LSD in gram quantities at $1,400 a gram or $1,250 a gram for sales larger than three grams. Miley and Brandt said that the LSD was of "excellent" quality. At this point, Brandt raised the subject of selling tetrahydracannabinol (THC), a marijuana derivative, for $1,800 an ounce; Nieves told Brandt that he would purchase a quantity of this drug if his "customers" displayed an interest in it.
The next meeting at the Village Plaza occurred on December 5 and was attended by Brandt and Starbuck, who immediately drove over to the apartment of Lang, where the three made arrangements for the sale of THC at $1,800 an ounce. Lang left the room and made a call to an unidentified person; upon returning he said that the date of the transaction would as yet have to remain somewhat uncertain but he gave Starbuck a sample of the drug, which was turned over to Palombo on December 7. Under analysis, the sample was discovered to contain PCP, a horse tranquilizer, rather than THC.
During the early afternoon of December 13, Starbuck approached Nieves and said that he had arranged the purchase of one ounce of THC for $1,800 through Brandt. Starbuck was once again equipped with a Kel transmitter belt.*fn3 Nieves and Palombo accompanied Starbuck to the Village Plaza Hotel, where Starbuck left the car and returned with Brandt. Palombo was introduced as Nieves' "cousin Sammy." The party then left for the apartment of Flores, who was reluctant to meet strangers. Brandt and Starbuck first visited Flores' apartment without the agents, discovering that Varvarigos was also present; after being assured that the agents were trustworthy customers, Varvarigos, who was also suspicious, suggested that only one of them be allowed to enter the apartment. Starbuck thereupon returned to the car and Nieves, who left the $1,800 with Palombo, accompanied Starbuck back to Flores' apartment and was introduced to Flores and Varvarigos by Brandt. Nieves weighed the plastic bag containing the drug, ascertaining that it weighed approximately one ounce, and left to obtain the money. Upon returning, he gave the money to Brandt, who handed a portion of it to Flores with the comment "Twelve, right?" (Count Three). Nieves also solicited and received advice from Flores and Varvarigos about dosage size, mixing, and sale of the drug. When the drug was later analyzed, it was once again determined to be PCP.
Four days later, on December 17, Starbuck again visited Brandt at the Village Plaza Hotel, but the latter was busy and directed Miley to accompany Starbuck to Varvarigos' residence. Varvarigos stated that he could sell a kilogram of cocaine, but Starbuck was unwilling to buy so large a quantity. No agreement was reached, but Varvarigos gave Starbuck a sample, which was passed on to the agents.
Continuing to play their roles, Nieves and Palombo called Varvarigos on December 18 to complain that the substance they had recently purchased from him was PCP rather than THC, an allegation which Varvarigos denied. The conversation was taped and played to the jury. During the course of the conversation Varvarigos urged the agents to help him move greater quantities of the drug and brought up the subject of the cocaine sample he had given Starbuck. Preliminary arrangements were made for the sale of a pound of cocaine, but Varvarigos expressed his concern to Palombo that the transaction would involve "way too many" people; "this is going through so many people. You [Palombo], Bobby [Nieves], Mike [Starbuck], Billy [Brandt], . . . David [Flores] and then to me." He also said that there was "somebody else . . . who has to be taken care of too," someone through whom he had met Brandt. On January 2 and again on January 3, Palombo called Varvarigos to firm up the details of the cocaine transaction. The price was to be $16,000. Both conversations were taped and transcripts of them were entered into evidence.
Nieves also called Brandt on January 3 and negotiated a deal for the sale of 3850 dosage units of LSD for a price of $1,925. Nieves and Palombo proceeded to Brandt's room at the Village Plaza Hotel, where they met with Brandt, Miley, and Godinsky. It seems that only 1350 dosage units were then available and that there would be a wait of an hour before the balance of 2500 dosage units would be ready for sale. Godinsky handed the first portion of LSD to the agents, who paid him $675; Godinsky said that he would return to his "source" for the rest. The agents left Brandt's room, having agreed to return in an hour. When they returned, they were admitted by Miley, who explained that Brandt was running some errands and that Godinsky would soon reappear with the rest of the LSD or at least call if his source was unable to supply him with it. Shortly thereafter, Brandt returned, reiterated Miley's comments about Godinsky's intentions, and received a telephone call, which he said was from Godinsky, who had obtained the LSD and was on his way to Brandt's room. Upon arriving, Godinsky exchanged the 2500 dosage units for $1,250 (Count Four). At this point Brandt explained that Godinsky was leaving for a vacation in California and that, because his transactions with the agents had been so successful, Brandt would now deal more directly with Godinsky's supplier and roommate, subsequently identified as Bachia, who also went by the name "Strider."
On the following day, January 4, Starbuck met Brandt at his room at the Village Plaza Hotel for the purpose of arranging an LSD transaction with a new source. The two of them proceeded to Lang's residence, where the sale of a different form of LSD called "purple haze" for $1,800 an ounce was discussed. Starbuck received a sample of the substance, which he turned over to Nieves on January 15.
During the period January 8 through January 10, Palombo and Nieves attempted to complete the cocaine transaction with Varvarigos. The agents had obtained the $16,000 which had been agreed upon but Varvarigos was unable to arrange the exchange upon terms satisfactory to the agents and the deal was aborted. Varvarigos, however, left the agents with another sample of alleged THC, which again turned out to be PCP.
When Starbuck gave Nieves and Palombo the sample "purple haze" LSD on January 15, the agents decided to make the proposed purchase. Starbuck proceeded to Brandt's room, from which the two of them departed for Lang's residence, where they were later met by Nieves and Palombo. The agents had obtained $1,400 in Government funds to complete the purchase. Lang said that the deal could be completed but that only two persons could accompany him to his source, who lived nearby. At this point, Starbuck and Brandt departed for the latter's comic book store, where the agents were to meet them after the transaction was completed. Lang and the agents proceeded to an apartment occupied by a person introduced to them as "Joe," subsequently identified as Wenzler, and purchased from him two separate lots of "purple haze" LSD in small purple tablets, each lot containing 2000 tablets and costing $600 and each obtained by Wenzler during separate short trips from the apartment. Wenzler vouched for the quality of the merchandise and said that, if given some notice, he could obtain larger quantities. The agents then proceeded to Brandt's nearby comic book store and paid him a $200 "commission" for the transaction (Count Five). Later analysis showed that the purchased "purple haze" was identical to the sample Brandt had earlier given Starbuck.
The agents returned to the comic book store February 6 to make final arrangements for a purchase of 50,000 units of LSD for $16,500. They were met by Miley, who said that they could find Brandt at a second comic book store he was preparing for opening. Brandt informed them that a new shipment large enough to handle their order was expected in the near future but that his supplier, Strider (Bachia), was reluctant to meet purchasers prior to the day of the sale. The agents insisted that they receive the same type of LSD on blotter ...