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United States v. Steinberg

November 10, 1975; As Amended April 6, 1976.

UNITED STATES OF AMERICA, APPELLEE,
v.
STUART STEINBERG, WILLIAM CAPO, HOWARD KAYE AND JAMES PARKER, DEFENDANTS-APPELLANTS



Appeals from judgments of the District Court for the Southern District of New York, Robert J. Ward, Judge, convicting appellants, after jury verdicts, of violating various federal narcotics laws.

Moore, Friendly and Van Graafeiland, Circuit Judges.

Author: Van Graafeiland

VAN GRAAFEILAND, Circuit Judge

Appellants Stuart Steinberg, William Capo, Howard Kaye and James Parker appeal from judgments of conviction entered after a jury in the Southern District of New York found them guilty of conspiracy to violate the federal narcotics laws (21 U.S.C. § 846 (1970)) and, on varying counts, of knowingly using the telephone to cause and facilitate the conspiracy (21 U.S.C. § 843(b) (1970)).*fn1 Steinberg and Capo also appeal from their convictions on three substantive counts of distributing and possessing with intent to distribute phencyclidine hydrochloride ("PCP"), a Schedule III controlled substance.

The convictions of Steinberg and Capo are affirmed. Because the evidence was insufficient to link appellants Kaye and Parker with the conspiracy charged, their convictions are reversed.

FACTS

On June 26, 1973, an informant, Ricky Citrola, introduced DEA Special Agent Brian Noone to appellant Steinberg as the representative of a man with money to invest in drugs. Steinberg gave Noone a.21 gram sample of PCP and indicated that he could supply large quantities of the drug. The next day Noone purchased two ounces of PCP for $2,400, and on July 10, one-half pound for $8,000. Appellant Capo was one of the suppliers of the PCP involved in these deliveries.

In various telephone conversations, occurring between July 10 and July 18, Noone and Steinberg discussed a 20-pound PCP transaction and also negotiated the terms of a 50-pound deal for $680,000. A wiretap was then installed on Steinberg's telephone following which Noone called Steinberg and confirmed the 50-pound purchase. Steinberg also agreed to provide a cocaine sample.

On July 24, Steinberg was informed by one of his suppliers that a hold would have to be put on the 50-pound transaction because the supplier's source had been arrested. Steinberg informed Noone of a "delay" in the PCP deal and suggested proceeding instead with a cocaine sale which had also been discussed.

To his dismay, Steinberg found that the cocaine which he had been planning to sell to Agent Noone was of inferior quality. He therefore called appellant Kaye seeking 50 pounds of the drug. Kaye said he could obtain it in California but informed Steinberg on the next day that he would not "do" the transaction.

On July 26 the wiretap on Steinberg's phone intercepted a call from appellant Parker to one Sara Werman in which he arranged the purchase of a quarter ounce of hashish oil for $125. Parker told Werman that she should deliver the oil to Steinberg's place and that Steinberg would give her the money if he was not there. Werman dropped the drug off, and later that evening discussed a potential one-ounce transaction with Parker.

During the following week Steinberg expanded his efforts to make a large-scale sale to Noone, offering large quantities of seconals and tuinals, hashish, and marijuana, without success.

Adequacy of Wiretap Applications and Orders

Appellants Steinberg and Capo vigorously assail the denial of their motion to suppress the information obtained from the wiretap. They contend that the application for the wiretap order did not contain the requisite "full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if ...


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