Appellants were convicted after trial by jury in the Eastern District of New York, Nickerson, J., of importation of heroin in violation of 21 U.S.C. §§ 952(a) and 960(a)(1), after a jury in a prior trial deadlocked on the same counts, but acquitted the appellants of conspiracy to distribute and import narcotics in violation of 21 U.S.C. § 846. Both appellants maintain on appeal that retrial and the evidence presented against them were barred on grounds of double jeopardy and collateral estoppel. The convictions are affirmed.
Before Meskill, Circuit Judge, Kelleher*fn* and Holden,*fn** District Judges.
Kenneth Clark and Eric Romandi appeal from judgments of conviction in the District Court for the Eastern District of New York, entered by Judge Eugene H. Nickerson on April 2 and April 30, 1979, respectively. The defendant Clark was found guilty of Counts Six and Eight of importing or aiding and abetting the importation of substantial amounts of heroin from Bangkok, Thailand, into the United States in July and September 1977, in violation of 21 U.S.C. §§ 952(a) and 960(a)(1) and 18 U.S.C. § 32. Romandi was found guilty of Count Eight for the September importation.*fn1 COUNT SIX
The combined appeals present the restless question of collateral estoppel generated by the prior acquittal of both defendants on October 30, 1978, after a seven week jury trial on an earlier indictment. Count Two of that indictment charged the appellants and other defendants with conspiring to import, to possess with intent to distribute and to distribute substantial amounts of heroin during the life of the conspiracy, in violation of 21 U.S.C. § 846.*fn2 The main thrust of the appeals is double jeopardy. The principal focus is on the error assigned to the admission into evidence at the second trial of statements of co-conspirators who allegedly participated in the conspiracy charged in Count Two, wherein the appellants were found not guilty at the first trial. Both defendants contend this evidence should have been excluded by the doctrine of collateral estoppel. COUNT TWO
The appellant Clark also contends that the Government's summation deprived him of a fair trial. He further claims that the court's supplemental instructions to the jury introduced prejudicial error which required reversal of his conviction.
Romandi's appeal challenges the sufficiency of the evidence to support the offense of importation. He contends that the trial court's restriction of his cross-examination of a government witness was in error. Lastly, he attacks the ruling of the district court which declared a mistrial after the jury failed to reach a verdict in the prior prosecution.
The appellants were first brought to trial on a ten count indictment which accused Clark and Romandi and sixteen others with participating in an extensive and far-reaching conspiracy which, according to the Government, was organized and principally directed by Charles Praetorius. This defendant was singly charged in Count One of a continuing series of violations of the federal narcotic law in violation of 21 U.S.C. § 848. He was also charged in subsequent counts of substantive offenses with distribution of heroin on two separate occasions. All eighteen of the defendants were charged in Count Two with conspiracy to import, to possess with intent to distribute and to distribute large quantities of heroin during the period from September 1, 1976 through March 1, 1978. Six of the remaining counts charged various defendants with importing or aiding and abetting the import of heroin on successive dates. Count Six charged the appellant Clark and others with the importation of 2 kilograms of heroin on July 14, 1977. Count Eight charged both appellants Clark and Romandi, Charles Praetorius, his wife Diane Praetorius, and Vincent Auletta with importing and aiding and abetting the importation of 4 kilograms of heroin on September 27, 1977.
The trial of thirteen defendants, charged in the original indictment, commenced September 18, 1977, before Judge Nickerson. The Government's case in the first trial revolved around the testimony of Ralph Abruzzo and Glenston Page Laws, who were leading subordinates in Praetorius' organization and management of the narcotic enterprise.*fn3
The combined testimony of Abruzzo and Laws related to a series of six journeys to Bangkok; the first on September 6, 1976, the last on December 19, 1977. The trips corresponded in time and sequence to six successive counts in the indictment. Charles Praetorius was named in all but Count Seven; Laws was named in Six, Seven and Ten. The appellant Clark was charged in Count Six, involving 2 kilograms of heroin in the offense of July 14, 1977, and in Count Eight which specified 4 kilos on September 27, 1977. The appellant Romandi was accused with Clark and three other defendants in Count Eight. Either Laws or Abruzzo was present on both trips; both traveled on the trip of July 1977.
Both Abruzzo and Laws were personally engaged with Charles Praetorius in the planning of the trips, the purchase of heroin in Bangkok and the packing of the substance for the return journeys to the United States. The general pattern and method of operation were substantially similar as to each offense charged in the original indictment, although the persons involved as couriers changed from one expedition to another.
In addition to the testimony of Abruzzo and Laws, the Government's evidence included corroborating testimony of Audrey Plunkett concerning the first trip of September 1977, and Kenneth Pollitt*fn4 as to the second September and December trips in 1977. Testimony of Jacob Hunt was also received in the first trial of his continuing purchase of heroin from Charles Praetorius from November 1976 through June 1977.
Evidence, by way of airline tickets, passport entries, customs declarations and hotel registrations, was received to document the travels of all defendants and the various co-conspirators between the United States and Bangkok during the time of the conspiracy. In addition, small quantities of heroin, traced to Charles Praetorius and sold by Hunt and Pollitt to undercover agents, were received in evidence.
The case was submitted to the jury on October 19, 1978. The jury's deliberation continued until October 31, when the jury was discharged after reporting they were deadlocked. Before the jury reached that impasse, however, Louis Juan, Charles and Diane Praetorius were found guilty of the conspiracy charge in Count Two. The appellants Clark and Romandi and Doris Jackson were acquitted of this count. Charles Praetorius was also convicted of distributing heroin in June 1977, as charged in Count Five. He was acquitted of the continuing criminal enterprise offense asserted in Count One, the charge of violation of 21 U.S.C. § 848. The jury failed to reach a verdict as to any of the defendants on any of the remaining counts.
Before the commencement of the second trial on Counts Six and Eight, Clark and Romandi moved for judgment of acquittal and, in the alternative, for severance. The motions for acquittal were denied. The motions for severance were granted; the case proceeded to the trial of Clark and Romandi on the substantive offenses, separate from the co-defendants charged in Counts Six and Eight.
As in the first trial, the Government's case again centered primarily on the testimony of the cooperating accomplices, Ralph Abruzzo and Glenston Page Laws. The testimony of these witnesses figured prominently in the second trial, but their evidence was, for the most part, confined to the July 2 and September 27, 1977 flights to Bangkok. According to Abruzzo, the chain of events which led to the charge, accusing Clark of participation in the July 1977 journey, began when he and Charles Praetorius met during June to plan the trip. Praetorius informed Abruzzo that he had made arrangements with Clark and Louis Juan to accompany them (Abruzzo and Praetorius) to Bangkok. Clark "was going for Charlie;" Juan "was going for me." According to the scheme, each courier would be paid $25,000 for separately carrying one-half kilogram of heroin.
Abruzzo obtained an airline employee pass. He later met with Praetorius, Clark and Juan at Kennedy Airport on July 6, 1978.*fn5 They were joined by Laws and informed by Praetorius that Laws would accompany them to Bangkok. All five departed on the same aircraft and arrived sometime between two and three o'clock in the morning of July 8, 1978, Bangkok time. All the members of the group proceeded to register at the Sheraton Bangkok Hotel.
Abruzzo went on to narrate that he and Praetorius occupied the same room in the Sheraton Bangkok. From this base Praetorius contacted Nui, his previously established source in Thailand, and later met him at an agreed upon time and place. At that location Abruzzo and Praetorius ordered two kilograms of heroin for the agreed price of $16,000 and paid $10,000 in advance. A few hours later Nui called Praetorius to arrange for delivery at a jewelry store near the Sheraton. In keeping with Nui's instruction, Praetorius and Abruzzo accepted delivery of the first kilo at the appointed place during the late afternoon of July 8.
Delivery of the second kilo was not accomplished until two days later. In the interval arrangements were made for the appellant Clark to obtain a suit, tailored to one and one-half inches larger than his normal measurement at the waist to accommodate the packing of a plastic belted container of heroin around the courier's midsection. Praetorius received the second kilo. On weighing the substance, it was discovered that the total amount of heroin was eight or nine ounces short of the two kilograms for which they had bargained. Praetorius then called Juan and Clark to his room and gave them the opportunity to depart for the United States immediately with the amounts previously delivered. Before a decision was reached, Praetorius, Abruzzo and Laws met again with Nui and received an amount sufficient to make up the shortage.
On the evening of July 11 the total substance was weighed and packaged in heavy plastic bags designed for use by airlines to transport skis. To flatten and compress the substance in these containers, Praetorius and Clark stomped on the bags and closed the containers with tape. Praetorius strapped one package of 21 ounces around Clark's body by means of stretch elastic tape. The second package, which contained the same amount of heroin, was strapped to Juan. After arranging their air travel, Clark and Juan departed from their hotel around midnight on July 12.
Abruzzo, Praetorius and Laws remained in Bangkok for two more days. The trio departed from Bangkok on July 14, 1977. Laws carried approximately one-half kilogram of heroin taped to his waist; Abruzzo transported three ounces taped to his right leg. On the return journey Praetorius and Abruzzo were "bumped" from their flight since they were traveling on airline passes. Laws continued to New York on his assigned flight; Praetorius and Abruzzo followed a day or two later.
Abruzzo testified that two days after he arrived in New York "Charlie (Praetorius) called me at my house and told me he had just picked up a package from Kenneth Clark near LaGuardia Airport by Travellers Hotel . . . ." Praetorius invited Abruzzo to his apartment to deliver his package at that location. From there Abruzzo accompanied Praetorius and his wife Diane to Juan's house at Shirley, Long Island. Juan delivered the package he transported which, according to Abruzzo, was in the same ski bag that was taped to him in Bangkok.
Later, toward the end of July, Praetorius paid Abruzzo $68,000 for the heroin transported by Juan. From this amount $25,000 was deducted to pay Juan. Abruzzo testified that at the time of payment, Praetorius informed him that "Kennie Clark had already been paid."*fn6 Both Clark and Juan received an additional amount of $4,000 for each ounce of heroin transported in excess of the half kilogram, for a total of $41,000.
Abruzzo testified that he was present when Clark frequented LaGuardia Airport within a week after his return from Bangkok to inquire of Praetorius concerning the payment he was to receive. On one of these occasions, according to Abruzzo, Clark asked "when Charlie was going back to Bangkok again."
Kenneth Pollitt testified that he was employed by New York Airways at LaGuardia Airport during the summer of 1977. Abruzzo and Praetorius solicited his services as a courier. Pollitt testified that while he was considering involvement, he gave the appellant Clark a ride home after work during the month of July. According to Pollitt, Clark informed him about his trip to Bangkok and what to expect.*fn7
The offense charged in Count Eight included both appellants Clark and Romandi on the journey to Bangkok of September 27, 1977, and followed a similar pattern. This contingent was composed of Charles Praetorius, his wife Diane, Abruzzo, Kenneth Pollitt, Vincent Auletta and the appellants. As in the July trip, Abruzzo was a principal government witness, along with Kenneth Pollitt.
Charles Praetorius and Abruzzo started preparation for the September trip in August. During the first week in September they met with Clark at LaGuardia. Praetorius then informed Abruzzo that he had solicited Clark, Vincent Auletta, Eric Romandi and Pollitt to make the trip, along with Praetorius and his wife Diane. Auletta was employed by New York Airways. Pollitt was then on lay-off status with New York Airways. Romandi worked for American Airlines at the same terminal.
Abruzzo testified that a few days before the trip was scheduled, Praetorius told him that Clark was "going on the September trip for himself." He went on to explain that "Clark was going to buy a kilo of heroin and bring it back himself and Charlie Praetorius would sell it for him and pay him for it."
All of the travelers, with exception of Diane Praetorius, were airline employees. Abruzzo, Pollitt and Auletta departed from New York on September 20, 1977. They were joined by the appellant Clark during a stop-over in Tokyo. The appellant Romandi's departure was delayed by ticket complications and he did not leave until the following day. He was instructed by Abruzzo to try to check in at the Indra Regent Hotel; if unsuccessful, he should arrange to meet the others at that hotel at least once every day.
Abruzzo, Pollitt, Auletta and Clark arrived together at Bangkok on September 22, 1977. They all checked in at the Indra Regent, where Charles and Diane had previously registered. Romandi arrived at the same destination on September 24. Later on the day of the 22nd, Praetorius assembled all of the group, except Romandi, at the hotel bar and informed them that he had received delivery of two kilos of heroin from Nui and would obtain delivery of the remaining two kilos in a couple of days.
Shortly after his arrival in Bangkok, Pollitt testified that Romandi expressed apprehension to him whether they could return with the heroin without detection. Both Pollitt and Romandi served in the armed forces in Viet Nam. Pollitt tried to reassure him that "it can't be worse than having been in Nam."
Later that afternoon Charles and Diane Praetorius, with Abruzzo, operating together, proceeded to a designated location in Bangkok where they accepted delivery of the remaining kilos of heroin from Nui and paid him the balance of the purchase price. An increase in the price of $6,000, demanded by Nui and his associate, required additional funds. Abruzzo advanced $4,000 to Praetorius and Clark gave him $2,000.
The second delivery of heroin was brought to Praetorius' hotel suite. There the bulk of the substance was packed in the same manner employed in the July operation, by use of ski bags which were flattened and taped to Auletta. He departed from the hotel in Bangkok shortly before midnight. Romandi's package was prepared by Clark and Praetorius and taped to the appellant Romandi in the same fashion on the following day, September 25th.
The remaining kilos of heroin were prepared on September 26. Some of this substance was delivered in plastic vials. These containers were emptied, crushed and flushed in the toilet by Praetorius, Abruzzo, Pollitt and Clark. This done, the packages were prepared and taped to Clark and Pollitt. They departed from Bangkok on the same flight.
Abruzzo testified that before Clark and Pollitt left the hotel, he and Praetorius discussed obtaining a finder's fee from Clark "because Clark was carrying for himself." Praetorius informed Abruzzo that he had discussed this with Clark and they agreed he would pay Abruzzo and Praetorius $10,000 each.
Clark made the flight in the tourist section; Pollitt flew first class. During stops in Tehran, Frankfurt and London, Clark and Pollitt remained on the plane until the flight arrived in New York. After they cleared customs, Clark remarked to Pollitt "Now you are a rich man."
Charles and Diane Praetorius and Abruzzo departed from Bangkok on September 28. A day or two after their arrival in New York Praetorius informed Abruzzo, while they were at work, that he had picked up the package that Clark brought back and would shortly get Auletta's package. He instructed Abruzzo to fix a meeting place to retrieve Pollitt's package when Abruzzo was ready. Abruzzo testified this was accomplished the following day when he met with Praetorius and Pollitt to receive the delivery. Abruzzo paid Pollitt $20,500 and delivered the package to Praetorius.
According to Abruzzo's testimony, before the final accounts were settled, Clark visited with Praetorius and Abruzzo, while they worked at LaGuardia, to find out when the payments would be made. Praetorius informed Abruzzo and Clark that Auletta and Romandi would be paid first $50,000 each; then Clark and Abruzzo would be paid. Thereafter Praetorius paid Abruzzo and Clark in cash that was delivered in installments in brown paper bags. Abruzzo received $100,000, which Praetorius left in his locker. Payments by Praetorius were completed on October 11, 1977. In December Abruzzo collected $10,000 at Clark's home as his share of the "finder's fee."
The details of the second September trip were corroborated by entries in passports, customs declarations and hotel registrations.
Neither of the appellants testified at the trial. The defense as to both centered on extensive cross-examinations of the government witnesses, principally Abruzzo, Pollitt and Laws, by attacking their character, credibility and their respective agreements to cooperate by testifying for the prosecution. Inconsistencies in their testimony before the grand jury and at the first trial were explored in depth. Clark ...