Appeal from a judgment of conviction entered in the United States District Court for the Eastern District of New York after a trial before Mark A. Costantino, Judge, and a jury, finding appellant guilty of conspiracy to distribute and to possess with intent to distribute approximately 2,375 pounds of marijuana in violation of 21 U.S.C. § 846. Conviction affirmed, sentence vacated and remanded.
Before Moore and Kearse, Circuit Judges, and Tenney,*fn* District Judge.
Myron Lieberman appeals from a judgment of conviction entered after a jury trial in the United States District Court for the Eastern District of New York before Mark A. Costantino, Judge, on one count of conspiracy to distribute and to possess with intent to distribute approximately 2,375 pounds of marijuana in violation of 21 U.S.C. § 846 (1976). Lieberman was sentenced, pursuant to 18 U.S.C. § 3651 (1976), to a term of five years' imprisonment, with four months to be served, three years' probation, and the remaining one year and eight months suspended. He was also fined $5,000 and sentenced to a special parole term of five years. We affirm the conviction, but vacate the sentence and remand for resentencing so that the special parole term may be deleted.
On Saturday, December 2, 1978, agents of the United States Drug Enforcement Agency ("DEA") in Brooklyn, New York, intercepted a shipment of more than one ton of marijuana as it was being unloaded from a van belonging to Lieberman Movers, a household moving company whose Fort Lauderdale office was run by the defendant Myron Lieberman. The agents arrested the driver of the van, John Briggs, and his helper, Calvin Mapp, along with the two men who were helping to unload the forty-six cartons containing the marijuana, Louis Caparella and Robert D'Ambra. This appeal arises out of the trial of Myron Lieberman and Willie Gaines, the warehouse foreman of Lieberman's Fort Lauderdale operations, on one count of conspiracy to distribute and to possess with intent to distribute the marijuana.*fn1 At trial, Lieberman stipulated that the marijuana had been shipped from his Florida offices to Brooklyn. He contends, however, that certain evidence offered at trial to link him with the shipment was improperly allowed, and that in any event there was not sufficient evidence to convict him.
The evidence against Lieberman came primarily from the testimony of William Flynn and Steven Hamilton, two former employees of Lieberman Movers in Fort Lauderdale, as to events at that operation from November 27 through December 4, 1978.
Flynn testified that on Monday, November 27, D'Ambra and Caparella visited the Fort Lauderdale warehouse of Lieberman Movers where they spoke with Joyce Lieberman, a secretary, and Alan Breslow, the dispatcher. Flynn overheard D'Ambra and Caparella say that Joe Lieberman, Myron's uncle who ran the Brooklyn office of Lieberman Movers, had "told them to see Myron about getting some dishpacks*fn2 for closing up a small business deal, moving some stuff back to New York." D'Ambra also spoke to Briggs who stated that he would see them in New York on Saturday morning. As D'Ambra and Briggs parted, Briggs put his hand in his pocket, and shortly thereafter told Gaines that the two men were good payers and wanted some "stuff" packed. Later that day, Flynn placed several bundles of flattened dishpacks on the loading dock, where they remained unopened through most of November 28.
When Flynn reported for work at 7:30 a.m. on Wednesday, November 29, approximately 40 dishpacks had been packed and sealed and were stacked along the warehouse wall. Flynn testified that the boxes had been taped in a way that, among Lieberman employees, was unique to Gaines. Later that morning, as Flynn and several other employees were standing nearby, Flynn overheard a conversation between Gaines and Briggs, which he described at trial, over Lieberman's objection, as follows:
Q Did you hear Mr. Gaines say anything?
A Mr. Gaines told Mr. Briggs, I heard you come in last night with the truck. Approximately 9:00 o'clock at night.
Q At approximately 9:00 o'clock?
Q And did Mr. Briggs say anything?
A He says where were you. And Mr. Briggs
A Mr. Briggs said he was parking the truck at 9:00 o'clock at night and Mr. Gaines said, I heard you come in. Mr. Briggs asked Mr. Gaines, where were you. He said, I was in the warehouse packing up this stuff and he pointed to the row of the pile of dishpacks.
Q This is the pile of dishpacks that you referred to that were standing against the wall of the warehouse?
A Yes. These are two of them.
Q The two that you have identified here and the others?
Q After Mr. Gaines said I was here packing up the stuff, what did Mr. Briggs say?
A Mr. Briggs said, how come you don't open up the door. And Mr. Gaines told him, he says, Myron says don't open up the door for anybody, the warehouse door.
On Thursday, November 30, Flynn and Hamilton were sent home at approximately 7:45 a.m., but before they left they saw the dishpacks still stacked against the wall. Later that afternoon, when they returned to the warehouse to check on Friday's work schedule, they saw Briggs's truck being loaded. When they arrived at work on Friday, December 1, the dishpacks were gone.
Later that day, Flynn telephoned his cousin, Joseph Flynn, an F.B.I. agent in Los Angeles, to inform him that he suspected a shipment of marijuana was on its way to New York. Agent Flynn notified the DEA, which made ...