Appeal from a judgment of conviction entered in the United States District Court for the Southern District of New York after a jury trial before Richard Owen, Judge, finding defendant guilty of knowing possession with intent to distribute heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A). Affirmed.
Oakes, Van Graafeiland and Meskill, circuit Judges. Oakes, Circuit Judge (concurring).
Wyadell Edmonds appeals from a judgment of conviction entered in the United States District Court for the Southern District of New York after a three day jury trial before Richard Owen, Judge, finding the defendant guilty of knowingly possessing heroin with intent to distribute in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A).*fn1 Edmonds was sentenced to twelve years' imprisonment to be followed by three years' special parole.
On appeal, Edmonds raises five claims of error: (1) that the district judge who presided over his original trial should not have been assigned his retrial; (2) that the trial court erred in refusing to order the government to disclose the identity of the informant involved in the case; (3) that there was no probable cause to justify Edmonds' arrest; (4) that the search of Edmonds' suitcase was unlawful; and (5) that the totality of the circumstances surrounding his retrial reveal a denial of his right to a fair trial. Finding no merit to any of these contentions, we affirm the judgment of conviction.
On April 30, 1974, Detective Horace Balmer of the New York Drug Enforcement Task Force received two telephone calls from a confidential informant who had previously provided accurate information to federal agents about narcotics transactions involving Edmonds and others. The informant stated that Edmonds, accompanied by a female companion, would be carrying about two ounces of high quality heroin by bus to Norfolk, Virginia, where Edmonds had to make a court appearance on a narcotics possession charge. Detective Balmer had already received notification from the Norfolk District Attorney's Office that Edmonds was to appear there in court.
A surveillance team consisting of Balmer, Drug Enforcement Agents Steinberg and Dunham and other agents from the New York Drug Enforcement Task Force, was stationed near the Trailways ticket counter in the Port of New York Authority bus terminal on May 1, 1974, the date that Edmonds was to travel to Norfolk. Edmonds, carrying a gray suitcase and accompanied by a woman later identified as Christine Summers, was arrested at the Trailways ticket counter after he had requested two tickets to Norfolk; Detective Balmer took custody of Edmonds' suitcase.
As the agents were escorting Edmonds and his companion out of the terminal, Edmonds spontaneously told Agent Steinberg that they should let the girl go free since she had nothing to do with it. Once outside the terminal, Detective Balmer informed both Edmonds and Summers of their constitutional rights.
Edmonds was taken to Task Force headquarters; a search of the suitcase produced, inter alia, a black and white plastic bag containing two manila envelopes, one paper bag, and an aluminum foil packet. Chemical analysis of the contents of these packages revealed the substances therein to be 8.4 grams of 99.6 percent pure heroin and 38 grams of agents commonly used to dilute heroin for resale purposes. Summers was taken to the Manhattan South Precinct to be searched; she was released shortly thereafter.
Edmonds was interviewed by Assistant United States Attorney Alan Kaufman that same day. Detective Balmer informed Kaufman of the circumstances surrounding Edmonds' arrest and, after again receiving notice of his constitutional rights, Edmonds stated that the agent's description of the arrest was correct and that he himself did not use narcotics.
Edmonds was indicted on May 10, 1974. His pretrial motions to suppress the heroin seized at the time of his arrest and for disclosure of the informant's identity were denied after an evidentiary hearing. Trial began on December 5, 1974 and continued until December 9, 1974, when a mistrial was declared because the jury was unable to agree on a verdict.
At Edmonds' second trial, important additional testimony not elicited in the first proceeding was presented by Jerome Christian, who at one time was in the narcotics business with Edmonds. On May 16, 1974, Christian pleaded guilty to a federal narcotics offense and agreed to cooperate with the authorities in exchange for the government's making his cooperation known to the judge assigned to his case. He testified at Edmonds' second trial that, on two occasions in late April 1974, Edmonds told him about his plans to get heroin from Willie James, Jr., known as "Junior," and take it to Virginia to sell. In May, 1974, Edmonds also related to Christian the details of his arrest at the bus station. Finally, on January 23, 1975, while working in an undercover capacity, Christian was "wired" with a transmitter and tape recorder; he went to a Manhattan apartment where he talked with Jack Kennedy, Junior, and Edmonds.*fn2 During the conversation, Junior described the heroin that he sold to Edmonds as 100% pure. Edmonds replied that he had not known how pure the heroin was until its chemical analysis by the police after his arrest. After both Christian and Junior commented on Edmonds' foolishness in travelling with the heroin to Virginia, Edmonds stated that he was trying to make money and could do so by selling in Virginia.
One other unusual series of events bears mention. Prior to the commencement of the second trial, Christine Summers became seriously ill from the aftereffects of an abortion and died. On May 25, 1975, the day the jury was to be selected, Edmonds, for the first time, advised the court and the government of her death and the fact that she was to be buried that day. All agreed that, as a practical matter, there was no way to get Edmonds to the funeral in time. In summation at the second trial, Edmonds' counsel began to argue that Summers, who had been arrested with Edmonds, had planted the heroin on him, had been the confidential informant, and had been arrested only as a pretense to protect her identity. Edmonds, violently disagreeing with the propriety of that argument and protesting that he would not permit it to be made, voluntarily absented himself from the courtroom, although he had been advised that such action might be harmful to his case.
Edmonds did not testify at the second trial. In fact, the only witness called by the defense was Detective Balmer, who testified that the street value of the ...