Appeals from judgments of conviction for conspiracy to violate the narcotics laws and for substantive narcotics offenses, entered after a jury trial in the United States District Court for the Southern District of New York, Kevin Thomas Duffy, Judge.
Smith, Oakes and Timbers, Circuit Judges. Timbers, Circuit Judge, concurring specially.
The six appellants before us were among 17 defendants indicted for conspiracy to violate the federal narcotics laws, in particular 21 U.S.C. §§ 846, 812, 841(a)(1), 841(b)(1)(A). All appellants were convicted on the conspiracy count after a nine-week jury trial in the United States District Court for the Southern District of New York, Kevin Thomas Duffy, Judge. Appellants Wesley and Green were also convicted on substantive counts, for distributing one-half and one-quarter kilogram of heroin, respectively. Sentences were imposed in May and June of 1976.*fn1 The appellants raise numerous claims in respect to the proof, the conduct of the trial, and the selection of, charge to, and court's communications with the jury. We affirm.
I. NATURE OF THE CONSPIRACY
The narcotics conspiracy involved in this appeal is, in the Government's words, "an extension" of that involved in United States v. Tramunti, 513 F.2d 1087 (2d Cir.), cert. denied, 423 U.S. 832, 46 L. Ed. 2d 50, 96 S. Ct. 54 (1975). The conspiracy alleged was that, from January 1, 1969, to December 6, 1973 (the same dates involved in Tramunti, see id. at 1093), the indicted defendants, together with Warren Robinson, Frank Pugliese and others, conspired to receive, buy, and sell, and to facilitate the transportation, concealment and sale of, unlawfully imported narcotics drugs and to distribute and possess with intent to distribute narcotic drug controlled substances. All of the 37 overt acts alleged in the indictment took place between March of 1971 and October of 1972, except for two overt acts allegedly occurring in June and October of 1973. The Government's proof primarily consisted of testimony by Harry Pannirello, Jimmy Provitera and Thomas "Tennessee" Dawson, very similar to their testimony in Tramunti, supra, see id. at 1097-98, and by two defendants who pleaded guilty, James March and Dorethea Ann Ellis. Broadly speaking, the proof was that Pugliese was the source of narcotics wholesaled by Warren Robinson in Washington, D.C., and Al Green in New York. The appellants other than Green were all either customers of Robinson and his partner, Dawson, in the Washington, D.C., area (appellants Taylor, Turner and Ramsey), or persons who assisted Robinson and Dawson in transporting, storing, diluting and delivering heroin in Washington (appellants Salley and Wesley).
In 1971, both Pugliese and his key lieutenant, Paul DiGregorio, went to jail, with Pugliese designating Pannirello and a Pat Dilacio to run the business in his absence. Commencing in January, 1972, Pannirello used his brother-in-law, Provitera, to make deliveries. Robinson's Washington operation and at least two of Pugliese's New York customers, appellant Green and fugitive defendant Basil Hansen, continued to deal with Pannirello and Dilacio on the same basis as they had with Pugliese. Thus the core group of the alleged conspiracy consisted of Pugliese, DiGregorio, Pannirello and Dilacio, a group that served, in the Government's term, as the "hub"*fn2 around which multikilogram quantities of narcotics were purchased and distributed.
II. THE CONSPIRACY CONVICTIONS
All appellants except Ramsey raise points relating to either the scope of the conspiracy (i.e., that the evidence showed multiple conspiracies, rather than the single conspiracy alleged in the indictment) and the charge thereon, or the sufficiency of the evidence of their participation in the conspiracy, or both. We will first consider the multiple conspiracy issue and the charge given, then examine the sufficiency of the evidence as to each appellant.
A. Single v. Multiple Conspiracies
We have recently recognized that, "when a pattern of illegal activity persists over an extended period of time, with participants moving on and off the scene of action, it is sometimes difficult to establish that they are all part of a single conspiracy." United States v. Armedo-Sarmiento, 545 F.2d 785, 789 (2d Cir. 1976). It is the Government's burden to establish the conspiracy alleged in the indictment, and whether this burden has been met "is ordinarily a question of fact for the jury," id. at 309. Our task on review is to determine whether the legal standard given to the jury by the trial court in its charge was correct and whether, viewing the proof in the light most favorable to the Government, there was sufficient evidence to permit the jury to find the single conspiracy alleged.
Judge Duffy's charge on multiple conspiracies was virtually identical to the one he used in Tramunti, supra, which is reproduced in 513 F.2d at 1107. We held that charge "clear, correct and within the decided cases." Id. The charge here correctly told the jurors that they had to acquit unless they found the existence of the conspiracy charged in the indictment and found that each defendant they convicted was a member of that conspiracy. Appellant Wesley requested a supplemental charge to the effect that, if multiple conspiracies were in fact proved, all defendants were to be acquitted, regardless of whether the conspiracy charged in the indictment had been proved. The trial court properly denied this request; it is an incorrect statement of the law. See United States v. Lam Lek Chong, 544 F.2d 58, 68 (2d Cir. 1976); United States v. Tramunti, supra, 513 F.2d at 1107-08.
On the question whether the conspiracy charged was sufficiently proved as a whole -- we consider whether it was sufficiently proved as to each defendant in the following subsection, infra -- the discussion in Tramunti is relevant. There, as here, appellants had a common source of heroin supply, here the Pugliese operation, and there was proof of "mutual dependence and assistance." 513 F.2d at 1106. While appellants had their principal operations in two cities -- New York (appellant Green) and Washington (all others) -- the evidence of a common source of supply justified "treatment of the two spheres as one general business venture, " id. There was here, moreover, a "consistency of personnel, method and type of operation, " United States v. Hinton, 543 F.2d 1002, 1014 (2d Cir. 1976), from which the jury could have found a single venture. As we have recently recognized, "most narcotics networks involve loosely knit vertically-integrated combinations, " United States v. Panebianco, 543 F.2d 447, 452 (2d Cir. 1976), and such a combination could reasonably have been found here. See generally Note, Resolution of the Multiple Conspiracies Issue Via a "Nature of the Enterprise" Analysis: The Resurrection of Agreement, 42 Brooklyn L. Rev. 243 (1975).
B. The Individual Appellants and the Charged Conspiracy
Before turning to an examination of the proof adduced as to each appellant, a few established principles should be restated. First, "the gist of the offense [of conspiracy] remains the agreement, and it is therefore essential to determine what kind of agreement or understanding existed as to each defendant." United States v. Borelli, 336 F.2d 376, 384 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S. Ct. 647, 13 L. Ed. 2d 555 (1965). In making this determination, courts often look to such factors as knowledge and dependency as evidence of an agreement. These factors, in turn, may be inferred from an assessment of the nature of the criminal enterprise and the defendant's role in it, since "it would be unrealistic to assume that major producers, importers, wholesalers or retailers [of narcotics] do not know that their actions are inextricably linked to a large on-going plan or conspiracy." United States v. Arroyo, 494 F.2d 1316, 1319 (2d Cir.), cert. denied, 419 U.S. 827, 42 L. Ed. 2d 51, 95 S. Ct. 46 (1974); see United States v. Ortega-Alvarez, 506 F.2d 455, 457 (2d Cir. 1974) (per curiam), cert. denied, 421 U.S. 910, 95 S. Ct. 1559, 43 L. Ed. 2d 775 (1975); United States v. Mallah, 503 F.2d 971, 983-84 (2d Cir. 1974), cert. denied, 420 U.S. 995, 43 L. Ed. 2d 671, 95 S. Ct. 1425 (1975); United States v. Bynum, 485 F.2d 490, 495-96 (2d Cir. 1973), vacated on other grounds, 417 U.S. 903, 94 S. Ct. 2598, 41 L. Ed. 2d 209 (1974); Note, supra, 42 Brooklyn L. Rev. at 256-57, citing United States v. Bruno, 105 F.2d 921 (2d Cir.), rev'd on other grounds, 308 U.S. 287, 84 L. Ed. 257, 60 S. Ct. 198 (1939). For such an inference to be drawn, however, it is necessary to examine "the qualitative nature of the act or acts [of each defendant] . . . . in the context of the entire conspiracy . . . ." United States v. Torres, 503 F.2d 1120, 1124 (2d Cir. 1974).
1. Wesley. Viewing the relevant conspiracy as one grounded in the New York distributing operation of Pugliese and his lieutenants, we have no difficulty in concluding that the evidence was sufficient to convict appellant Wesley as a member of that conspiracy.
Dawson met Wesley in early 1971 through Robinson, who persuaded Dawson to hire Wesley to work at Dawson's bar. Wesley not only accompanied Dawson and sometimes Robinson to New York and New Jersey, where they purchased multikilogram quantities of heroin from the Pugliese operation, but he also allowed his Maryland apartment to be used for the cutting and storing of the heroin. He picked up some drugs from Pannirello in New Jersey without making full payment, so that Dawson later had to reimburse Pannirello. Wesley's knowledge of the overall enterprise could properly have been inferred from his considerable dealings.
2. Salley. Appellant Salley was also closely connected with Robinson. His house was used to cut and store heroin, and he traveled to New Jersey with March to pick up heroin from Pannirello. Later, he went with Robinson to New Jersey for meetings with Pannirello and Provitera; Robinson told them that Salley was working for him and that Provitera should deliver to Salley. Within two weeks after one such meeting, Salley obtained a package of heroin at a Howard Johnson's Motel in New Jersey from Provitera. He otherwise participated in Robinson transactions sufficiently so that the jury could have readily inferred that he was fully aware of Robinson's dealings and the size and scope of the conspiracy.
3. Taylor. Appellant Taylor's case is more difficult. There was no evidence linking him to New York, and there was direct evidence of only two conspiracy-related drug transactions, involving a total of two to two and one-half ounces. While such proof is qualitatively quite weak in the context of the entire conspiracy, see United States v. Tramunti, supra, 513 F.2d at 1112, it was sufficient within United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969), cert. denied, 397 U.S. 1028, 90 S. Ct. 1276, 25 L. Ed. 2d 539 (1970), and its progeny to permit the introduction of Dawson's hearsay testimony, which made Taylor out to be a regular, if slow-paying, customer of Robinson's and one of his principal customers in 1971. See United States v. Stanchich, 550 F.2d 1294, slip op. 1277, 1284-86 & n.4 (2d Cir. 1977). From Dawson's testimony, which indicated that Taylor was purchasing sufficient quantities to be in the retail distribution business, the jury could have inferred that he was knowledgeable as to the size of Robinson's operations and the source of Robinson's heroin. See United States v. Ortega-Alvarez, supra, 506 F.2d at 457, and authorities cited therein.
4. Turner. Appellant Turner claims that there was insufficient nonhearsay evidence to justify the submission of his case to the jury and that his "single act" -- going to Robinson's apartment in Maryland, sampling three different piles of narcotics that Robinson and Dawson were cutting on the table, and saying that, if the narcotics were good, he and his friends would buy all that Robinson and Dawson could supply -- was insufficient to show willing and knowing participation in the conspiracy. But the visit to Robinson's apartment does show that Turner was at least considering becoming a quantity customer of Robinson and Dawson in connection with conspiracy narcotics. There was further direct, nonhearsay evidence that Turner frequently visited Robinson's men's clothing store, where the latter carried on many of his narcotics transactions, and that Dawson and Robinson visited Turner's home. Taken together, this evidence was sufficient under United States v. Geaney, supra, to make admissible the hearsay declarations of Robinson, testified to by Dawson and March, that the purpose of Turner's visits to the clothing store was related to narcotics transactions. There were two other instances specified by March, but these transactions were sales by Turner to Robinson and hence did not involve conspiracy narcotics; they demonstrated only that Turner and Robinson knew each other as narcotics operators. But Dawson and March also testified as to a transaction taking place in New York involving the sale by Robinson to Turner of a kilogram of heroin, which was the subject matter of a substantive count on which Turner was acquitted. Robinson and Dawson left Robinson's girlfriend's Bronx apartment in March, 1972, to deliver a kilogram of heroin bought from Pannirello in New Jersey; Robinson told March, who remained at the apartment, that "they were going into town to meet Dog [Turner's nickname]" and "that if he called, to tell Dog, they were on their way." Turner did call the apartment and speak to March, who told him that Robinson was on his way to meet him, and Turner said, according to March, "If Warren gets back, tell him I will call him." Robinson and Dawson went to a Manhattan hotel, and, according to Dawson, who waited outside, Robinson went inside with the kilo of narcotics and returned with a bag containing $19,000, Robinson saying that Turner "wanted more narcotics." Upon their return to the Bronx apartment, March told Robinson of Turner's call and Robinson said that "they had met" Turner. Obviously, if the jury credited this evidence, it had more than adequate grounds for finding that Turner was a knowing member of the conspiracy.*fn3
5. Ramsey. Ramsey, a Washington customer of Robinson's, during the summer of 1971 complained to Dawson that he should have been getting higher quality narcotics than Robinson was delivering to him because he, Ramsey, was "putting up [part of] the front money." He told Dawson that, if Dawson "introduced him to the connection," Ramsey would put up all the front money. This alone would probably suffice to tie Ramsey to the conspiracy, but there was also evidence that in the latter part of October, 1971, after Dawson, Robinson and March had returned from a trip to New York or New Jersey for conspiracy narcotics, Ramsey arrived at the apartment of a Robinson girlfriend in Maryland when the others had cut about a half kilo of the narcotics. Ramsey had an argument with Robinson as to the quantity Ramsey wanted to buy and the money he owed Robinson; he eventually left with one kilo. March's and Dawson's testimony in this regard is sharply challenged by appellant Ramsey, on the basis that they could not have seen Ramsey from the bedroom where Robinson had them hiding while Ramsey was there. But the inconsistencies relied upon were matters for the jury to resolve. See United States v. Andrino, 497 F.2d 1103, 1107-08 (9th Cir.), cert. denied, 419 U.S. 1048, 42 L. Ed. 2d 642, 95 S. Ct. 621 (1974); United States v. Birnbaum, 373 F.2d 250, 257 (2d Cir.), cert. denied, 389 U.S. 837, 19 L. Ed. 2d 99, 88 S. Ct. 53 (1967). There was also evidence that Ramsey made at least one (unsuccessful) effort to buy heroin directly from Pugliese. Taking the evidence in the light most favorable to the Government, as we are required to do after a jury conviction, Ramsey clearly qualifies as a conspirator knowledgeable as to the size, scope and purpose of the conspiracy.
6. Green. It is true that appellant Al Green and convicted fugitive codefendant Basil Hansen had no particular connection with Robinson, Dawson and the Washington branch of the Pugliese-Pannirello drug operation. Green and Hansen were, however, major customers of Pugliese and subsequently Pannirello and Provitera, as Pugliese's agents, and both Green and Hansen received substantial deliveries at their apartments in the Bronx. There was testimony that Pugliese himself introduced Pannirello both to Hansen and to Green and told Green that Pannirello would be delivering heroin to Green in the future. Green agreed to the arrangement and thereafter received delivery of two packages from Pannirello. From the quantity of Green's purchases, from his close connections with the suppliers and with another large-scale distributor (Hansen) with the same source (Pugliese), appellant Green must be considered one of those as to whom the jury could infer knowledge both that the conspiracy had a scope, and for its success required an organization, wider than that disclosed by his personal participation, and that there were other major purchasers like Hansen and himself. See United States v. Agueci, 310 F.2d 817, 826 (2d Cir. 1962), cert. denied, 372 U.S. 959, 83 S. Ct. 1013, 10 L. Ed. 2d 11 (1963); United States v. Mallah, supra, 503 F.2d at 983-84.
Appellant Wesley raises two points regarding the selection of the jury, one relating to peremptory challenges for alternates, the other relating to the questions asked by the court on voir dire. A third jury selection issue, relating to the role as lead counsel played by counsel for Robinson, who was later severed from the trial, is raised by both Wesley and Green.
A. Challenges for Alternates
Wesley complains that he did not have the additional peremptory challenges for alternates required under Fed. R. Crim. P. 24(c).*fn4 At a pretrial conference, the court announced that it was going to select a jury of twelve plus four alternates, with all challenges to be exercised "across the board"; Judge Duffy said he would "put sixteen people in the box," with both sides allowed to "challenge anybody you want, alternate or regular juror." He then said, going beyond the requirements of Rule 24(c): "The defense, in view of the fact that we do have four alternates, will be given four extra challenges." No one objected at the time to the court's procedure, and Wesley has not shown that he was prejudiced by it.*fn5 Hence the trial court's procedure must be upheld. We would point out, however, that the better practice would have been to permit separate challenges for alternates, as Rule 24(c) on its face appears to require, thereby preventing use of the extra challenges for alternates as challenges to members of the regular panel.
B. Questions on Voir Dire
Wesley also complains about the trial court's failure, when requested, to inquire into the jurors' educational backgrounds and to elicit information about their children, if any. The decision as to the questions to be asked on voir dire largely rests within the informed discretion of the trial judge. See United States v. Tramunti, supra, 513 F.2d at 1114; United States v. Starks, 515 F.2d 112, 124-25 (3d Cir. 1975); ABA Standards, Trial by Jury § 2.4 and Commentary at 63-67 (Approved Draft 1968). While the extent and range of the questioning must be fair to the parties, so as to enable them to exercise challenges intelligently, it need not cover specific points requested by a particular defendant. See United States v. Tramunti, supra, 513 F.2d at 1114; United States v. Delay, 500 F.2d 1360, 1366 (8th Cir. 1974). No particular form of questions to be asked need be followed. See Ham v. South Carolina, 409 U.S. 524, 527, 35 L. Ed. 2d 46, 93 S. Ct. 848 (1973); United States v. ...