Appellants were all charged in one indictment and were convicted after jury trial in the Eastern District of New York, Mishler, Ch.J., of having conspired to violate the federal narcotics laws, 21 U.S.C. §§ 812, 841(a)(1), 846, 960(a)(1) and 963; and four of the eight, Barbara Hinton, William Beckwith, John Darby, and David Bates, were also convicted of violating 21 U.S.C. § 843(b) through the use of the telephone in furtherance of the objectives of the conspiracy. Upon their several appeals all the convictions, save that of Barbara Hinton, are affirmed. The conviction of Barbara Hinton is reversed and the indictment, as to her, is ordered dismissed.
Waterman, Hays and Meskill, Circuit Judges.
Following a ten week jury trial in the United States District Court for the Eastern District of New York, appellants Barbara Hinton, William Beckwith, James Carter, David Bates, Scarvey McCargo, Charles Cameron, John Darby, and Thelma Darby were convicted of conspiracy to violate the federal narcotics laws, 21 U.S.C. §§ 812, 841(a)(1), 846, 960(a)(1) and 963. Four of them, Hinton, Beckwith, John Darby, and Bates, were also convicted of using the telephone to further the conspiracy, 21 U.S.C. § 843(b). In support of their prayers for reversal, appellants raise a plethora of claims; but, save one raised by Barbara Hinton as set forth below, we find these claims to lack merit. Accordingly, we affirm all of the convictions except the conviction of Barbara Hinton.
Appellants, and ten other co-defendants, were charged in Count One of an indictment filed January 29, 1975, with conspiring between September, 1968, and January, 1975, to import into the United States, and to distribute and possess with intent to distribute, substantial quantities of heroin and cocaine. In Counts Two through Nine of the indictment, many, though not all, of the defendants were separately charged with using the telephone to further the conspiracy charged in Count One.*fn1
Two defendants pleaded guilty prior to trial.*fn2 Three other defendants, including Frank Matthews, the kingpin of the narcotics operation, were, and still are, fugitives.*fn3 Of the remaining thirteen defendants who proceeded to trial before Chief Judge Mishler, five were acquitted by the jury.*fn4 The eight convicted at trial, all of whom now appeal their convictions, were each sentenced to at least two years imprisonment;*fn5 and, except for John Darby and Carter, they have all been released pending appeal.
No elaborate recitation of the rather extensive facts need be given in order to construct a backdrop for the arguments appellants have raised. In essence, the Government's proof at trial established the existence of a large narcotics conspiracy operating from 1968 through 1975, with the not uncommon structure of receivers, distributors, couriers for sub-organizations, and suppliers of diluents used in the "cutting" of narcotics.
Frank Matthews, common-law husband of appellant Hinton, occupied a central position in the operation; and it was he who principally orchestrated the importation of drugs from connections abroad, largely from Venezuela. The drugs were then diluted and packaged at one of the organization's drug "mills," such as the apartment located at 925 Prospect Street, Brooklyn, nicknamed the "Ponderosa," and were thereafter distributed by organization lieutenants and other connections in Maryland, Pennsylvania, Ohio, New York, North Carolina, and other United States locations. McCargo, a Matthews lieutenant, worked principally at the "Ponderosa," cutting and bagging narcotics. Carter, an upper-level receiver of narcotics from the organization, acted as the major distributor in Maryland, utilizing a sub-cadre of couriers and connections in that state. For instance, in late 1970, there was a shortage of heroin in Maryland; and several of Carter's people met to discuss the problem. Purcel Wylie, a Carter courier, told one of Carter's customers, Norman Coleman, that Frank Matthews was Carter's connection and that to obtain a supply of narcotics he was to call a phone number in New York to contact Matthews' wife, Hinton, and that she would connect Wylie with one of the organization's lieutenants who would supply the heroin.
John Darby, a key lieutenant in the organization, supervised the distribution of narcotics in Pennsylvania. After Darby was arrested in September, 1972, and later was sentenced on a state "gun" charge to imprisonment in New York, his wife, appellant Thelma Darby, assumed his functions in the organization. In 1974, in particular, she had frequent contact with Walter Rosenbaum, who supplied the organization with mannitol and quinine used in cutting narcotics. Bates and Cameron, major receivers of narcotics from the Matthews organization, distributed in Pennsylvania and North Carolina, respectively. Beckwith acted as one of Matthews' lieutenants, assisting in the acquisition of diluents through Rosenbaum and other contacts. There was also evidence that Beckwith owned one of the organization's "cutting mills," an apartment at 101 E. 56th Street, Brooklyn, from which, among other things, a 32-gallon drum and oar used to cut and mix heroin, sifters, spoons, and other "cutting" paraphernalia, cases of quinine, various quantities of heroin and cocaine, and approximately $148,000 in cash were seized on September 15, 1972, during a search incident to a valid warrant.
Investigation by federal and state narcotics agents of the Matthews organization commenced in 1971, apparently as a result of the observations of one Detective Kowalski of the New York City Police Department, who lived at 130 Clarkson Avenue, Brooklyn, a building in which Matthews and Hinton also maintained an apartment. In 1971 and 1972, Kowalski observed several of the appellants, including Hinton, John and Thelma Darby, McCargo, and Cameron, frequently entering and leaving the apartment; and, on occasion, he observed them carrying paper bags, attache cases, and suitcases. Kowalski's observations triggered surveillance by federal and state authorities of the comings and going of Matthews and other organization members from other locations utilized by the organization, including 3333 Henry Hudson Parkway, Bronx. In 1972, surveillance was greatly increased; and in June and August of that year, two court-ordered wiretaps were obtained for the 3333 Henry Hudson Parkway apartment and for 7 Buttonwood Road, Toad Hill, Staten Island, a large residence built by Matthews and Hinton. A September, 1972, search of the 130 Clarkson Avenue apartment followed shortly thereafter; and various documents were turned up which concerned money received from narcotics purchasers and disclosed some of the expenditures made by the organization.
The arrest of various organization members in 1972 and 1973, such as that of Norman Coleman in March, 1972, and their agreements to cooperate with the Government, assisted federal and state authorities in pursuing the already extensive investigation underway. In January, 1973, Frank Matthews was arrested in Las Vegas, Nevada. His arrest, and the organization's efforts directed at meeting his $325,000 bail bond, reduced from an initial $5,000,000, threw the organization into temporary disarray. Following the posting of the bond, Matthews "jumped" bail; and he has since been at large. After Rosenbaum's arrest and agreement to cooperate with the Government in June, 1973, undercover agents began to infiltrate the organization, posing at times as prospective suppliers of the then scarce diluents quinine and mannitol. Organization narcotics sales nonetheless continued through early 1975.
II. The Indictment of Barbara Hinton
Appellant Hinton raises seven points of error, one of which is of importance and is discussed forthwith. She claims that her indictment by the same grand jury which heard her give immunized testimony constitutes a violation of her Fifth Amendment rights and her right to due process, and that, accordingly, as to her, the indictment must be dismissed and her conviction after having been tried upon that indictment must be reversed.
The grand jury which returned the instant indictment was convened in June, 1972. On November 21, 1972, Hinton appeared before that grand jury for the first time. After giving some 20 pages of testimony, during which she claimed her privilege against self-incrimination as to nearly all questions not pertaining to her "pedigree," she was excused. The Government subsequently sought an order granting Hinton immunity; and on February 16, 1973, the late Judge George Rosling of the U.S. District Court, Eastern District of New York, signed such an order. On February 20, 1973, Hinton was recalled to testify; but she persisted in claiming her privilege and was shortly thereafter excused, apparently to enable the prosecutor and her attorney to discuss the immunity issue. She was then recalled on both February 21 and March 7, 1973, during which appearances she gave approximately 200 pages of testimony. Two years later, this same grand jury, the grand jury which had heard her immunized testimony, indicted her; and she stood trial on the allegations contained in that indictment.
At trial, Hinton's counsel moved at least three times for a dismissal of the indictment, or, in the alternative, for a hearing on the issue of whether the indictment had been tainted by the improper use of her immunized testimony. Judge Mishler did not dismiss the indictment, and at first declined to grant the alternative request for a hearing; but he stated that he would examine the grand jury minutes to ascertain whether an independent source existed for the evidence upon which the indictment was founded. Later, upon a renewed motion, the court stated that "[if] the defendant is convicted I will give you a full hearing." However, when counsel, after the Government had rested, again moved for a hearing, the judge, stating that he had decided against Hinton's petition, retracted his earlier commitment.*fn6
Hinton contends that, as to her, the indictment was necessarily tainted by the grand jury's having heard her immunized testimony; and thus that she has suffered an unconstitutional deprivation of her privilege against self-incrimination. She further contends that, inasmuch as the Government was never required to show that it had an independent source for the evidence which formed the basis of her indictment, the trial court's refusal to conduct a hearing on the issue of taint constitutes reversible error. The Government counters that the evidence underlying Hinton's indictment was obtained or derived from an independent source because: (1) Hinton's testimony was entirely self-exculpatory; (2) she was indicted nearly two years after giving her immunized testimony; and (3) ...