Appeal from judgments of conviction of the United States District Court for the Southern District of New York, Marvin E. Frankel, Judge, for conspiracy to distribute heroin in violation of 21 U.S.C. § 846 (1970). Affirmed.
Clark, Associate Justice,*fn* Hays and Mansfield, Circuit Judges. Mansfield, Circuit Judge, concurring.
Frank Wingate and Kenneth Luke Smith appeal from judgments of conviction entered in the United States District Court for the Southern District of New York after a jury trial. Wingate and Smith were convicted of conspiring to distribute heroin in violation of 21 U.S.C. § 846 (1970).*fn1 We affirm.
In June, 1974, Marell Tyre, who had been arrested and charged with the importation of cocaine, agreed to cooperate with agents of the Drug Enforcement Administration. He called Frank Wingate from DEA headquarters in Miami and began to negotiate for the purchase of an eighth of a kilogram of heroin. Later in June Tyre came to New York and made further calls to Wingate about the price and quality of the heroin to be purchased. During one of these conversations, New York City police officer Robert J. Heyward, posing as an associate of Tyre, also spoke to Wingate. The two men discussed the price of the heroin and the method of payment. Wingate made several references to his "man," implying that he had to check with his "man" before making any final decisions.
The next day, as arranged in the telephone conversation, Wingate, Heyward, and Tyre met at the Crotona Bar in the Bronx. According to Heyward's testimony, Wingate said that he had missed his "man" at the appointed hour but that "maybe my man will bring the package [of heroin] when he comes to the bar." Later, a man and a woman drove up in a green Toronado and Wingate went out to speak to them. He then told Heyward that he did not have the heroin but that he needed $3,100 of the agreed upon $6,200 purchase price in advance. He told Heyward that he would be back shortly with the drugs. Heyward paid him and Wingate drove off in the Toronado. About an hour later Wingate returned to the bar and repaid the $3,100, telling Heyward that he suspected that he was being followed and would have to postpone the deal. Wingate agreed to call Tyre to set up the deal sometime in the future.
Shortly thereafter Tyre called Wingate from Virginia and was told to come back to New York. When Tyre arrived at LaGuardia Airport, he called Wingate at the Crotona Bar and arranged to meet him at the airport for the purpose of negotiating the sale of heroin. Wingate told him that his "man" was with him and that he would bring his "man" to the airport. At 2:10 A.M. Wingate and Smith drove up to the American Airlines Terminal. Wingate got out and met with Tyre. He noticed two DEA agents seated in a car nearby and pointed them out to Tyre. Smith drove up and Wingate told him to drive by the agents to see what they were doing. Smith told Wingate to "hurry up." The two proceeded to case the area until they were arrested by DEA agents.
After his arrest, Smith was advised of his rights by Special Agent Korniloff of the DEA. He nevertheless told Korniloff that he had met Wingate that night at the Crotona Bar; that he had agreed to get heroin for Wingate to sell to a customer; and that he and Wingate had gone to LaGuardia to get the money. The next day Smith signed a statement containing information about his plans to obtain the heroin and identifying Wingate as his co-conspirator.*fn2
Before trial the district judge held a hearing on Smith's motion to suppress his statement on the ground that it was not made voluntarily. At the hearing Smith testified that he took Wingate to LaGuardia because Wingate had asked him for a ride. He testified further that he was a heroin addict and that he was suffering withdrawal pains when he was taken to DEA headquarters. He denied that he had conspired with Wingate to sell heroin and claimed that he signed the statement because of assurances from Government agents that if he did so he would be released. The Government witnesses denied that any such assurances were given, and they also testified that Wingate did not exhibit withdrawal symptoms or ask for medical attention at the time he was questioned. The Government also pointed out that in his original affidavit requesting a hearing, Smith said only that he was a cocaine user and that he was ill when brought to the courthouse; no claim of heroin addiction, with its severe withdrawal pains, was made until the hearing. The district judge denied the motion to suppress.
On December 24, 1974, the United States Attorney's office notified the district court by mail of its intention to introduce against Smith "written and/or oral statements" which he had made after his arrest. Included was a copy of the statement signed by Smith with a proposal that portions referring to Wingate be deleted to comply with Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). The letter assured the court that any Government witnesses testifying about Smith's oral statements would be instructed to avoid mentioning anything which incriminated Wingate. The court subsequently approved the admission of the written statement with all mention of Wingate removed, see note 2 supra, and a defense motion for a severance was denied.
At the trial the Government introduced Smith's redacted statement, and Korniloff testified as to his oral statements. The court cautioned the jury to consider the statements only against Smith and not against Wingate. Smith did not testify. Wingate testified and admitted that he had attempted to get narcotics for Tyre from a man identified only as Ray. He also admitted accepting the $3,100 from Heyward at the Crotona Bar for purposes of purchasing narcotics. He denied that Smith was involved in the matter and claimed that he only asked him for a ride to the airport. Wingate's counsel offered to introduce Smith's suppression hearing testimony, but the Government objected that it had not cross-examined Smith at that time for trial purposes. Noting that Wingate had already "confess[ed] that he was in a narcotics conspiracy," the court sustained the objection. The case was submitted to the jury which found Wingate and Smith guilty of conspiracy.
Wingate's primary argument is that the admission of Smith's oral*fn3 and written statements was ...