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United States v. Terry

February 18, 1983

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
WILLIE TERRY, DEFENDANT-APPELLANT; UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, V. ERIC NALVEN, ROBERT GUIPPONE, WILLARD WILLIAMS, ONZELO MARKUM, CLARENCE HAYNES, SAINT JULIAN HARRISON, PAUL JENKINS, AND ANTHONY MICHAEL PORCELLI, DEFENDANTS-APPELLANTS.



Consolidated appeals from judgments of the Southern District of New York convicting appellants of violations of federal narcotics laws and conspiracy, 21 U.S.C. §§ 812, 841, 843, 846, and 848. Defendant Williams pleaded guilty pursuant to a stipulation reserving the right to appeal certain issues relating to pretrial suppression claims. Defendant Terry was convicted after a non-jury trial before Chief Judge Constance B. Motley. The remaining appellants were convicted after a jury trial before Judge Richard Owen. Appellants raise numerous issues, principal of which are challenges to searches of Williams' trash containers, the legality and execution of eavesdropping orders, seizures made during the execution of an arrest warrant, the sufficiency of the evidence against certain defendants and the conduct of the jury trial. The conviction of Haynes is reversed. The convictions of all other appellants are affirmed.

Author: Mansfield

Before:

LUMBARD, MANSFIELD and KEARSE, Circuit Judges.

MANSFIELD, Circuit Judge:

Defendants appeal from judgments of the Southern District of New York convicting them of federal narcotics violations arising out of the same core of operative facts. One indictment (S 81 Cr. 398) charged (1) seven of the appellants (all but Terry) and 10 others*fn1 with conspiracy to possess and distribute heroin and cocaine in violation of 21 U.S.C. § 846 (Count 1), (2) defendant Willard Williams with organizing and supervising a continuing criminal enterprise in violation of 21 U.S.C. § 848 (Count 2), and (3) various defendants with possession of large quantities of heroin and cocaine in violation of 21 U.S.C. § 841(a)(1) (Counts 3 to 15) and illegal use of the telephone to further the narcotics conspiracy in violation of 21 U.S.C. § 843(b) (Counts 16 to 25). Defendant Williams pleaded guilty to Count Two (criminal enterprise) preserving by stipulation three pretrial suppression claim issues for appeal.*fn2 The other six appellants were convicted of the conspiracy count and the related substantive offenses charged after a six-week jury trial before Judge Richard Owen.*fn3 We reserve the judgment convicting appellant Haynes of conviction of conspiracy and illegal use of a telephone.*fn4 Finding no merit in the other claims of error, we affirm the judgments convicting Williams, Porcelli, Guippone, Harrison, Markum, and Nalven.

A second indictment (S 81 Cr. 426) charged Terry in three counts with similar narcotics violations (conspiracy with Williams and another to distribute heroin and cocaine, possession with intent to distribute 19.4 grams of cocaine and diluents, use of telephone to facilitate conspiracy). After a non-jury trial before Chief Judge Constance Baker Motley, Terry was convicted of all counts and placed on probation for two years. We affirm.

Viewed most favorably to the government, Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942), the evidence showed that during the period from October 1980 to May 1981 Williams managed from his duplex apartment on East 89th Street, New York City, a continuing narcotics business in which he received and processed wholesale quantities of heroin and cocaine, re-sold these drugs to distributors, paid back the suppliers, laundering and banking the profits, and that all but one of the other seven appellants played active roles in the business, either as suppliers, purchasers, or facilitators (e.g., money launderers, drug testers). Defendants Porcelli and Guippone were the main suppliers of wholesale quantities of heroin and cocaine to Williams. The distributors included appellants Harrison, Markum, Nalven, Terry and various co-defendants. Harrison also became a supplier of cocaine to Williams when he was unable to pay Williams for the heroin he had distributed. This heroin had been supplied by Guippone and Porcelli. Nalven, in addition to acting as a distributor, assisted Williams in testing for purity drugs being supplied to Williams and "laundering" some of the large cash receipts from sales, i.e., arranging to bank the funds as coming from legitimate sources.

The evidence establishing the existence and operations of the narcotics enterprise consisted mainly of (1) testimony of Drug Enforcement Administration (DEA) agents who made an initial purchase of heroin from one of Williams' distributors and engaged in months of continuous surveillance of the defendants, (2) papers and articles retrieved from bags of Williams' trash placed on the sidewalk outside his apartment for collection, (3) pen registers, photographs, video tapes and court-authorized electronic surveillance of conversations among the appellants, (4) post-arrest admissions by some defendants, and (5) articles seized at the time of arrest of some, including one kilogram of cocaine found in Williams' apartment, $400,000 in safe deposit boxes controlled by him ($14,500 of which was part of $40,000 previously paid by DEA undercover agents for the purchase of heroin), firearms and ammunition found in the premises of Harrison, Guippone and Nalven, and cocaine from Harrison's automobile.

The government's investigation into the defendants' narcotics activities began on October 24, 1980, when a DEA agent, Zenford Mitchell, purchased one-eighth of a kilogram of heroin for $40,000 from a previously-convicted narcotics dealer, Steward, who obtained the heroin from an apartment building at 307 East 89th Street, New York City, where defendant Williams, a twice-convicted narcotics distributor, rented and occupied a ground-floor duplex apartment ("J" and "1J") under the name Felix Davis, with telephones registered in other names. Further surveillance, use of an informant, and an interview with the owner of the apartment building, provided reasonable grounds for the belief that the source of the narcotics was the Williams' duplex. For instance, Steward was seen on two occasions entering that apartment, after dialing the Williams' apartment phone number from a nearby public phone. On October 31, 1980, a week after the DEA agent's purchase of the heroin through Steward, defendants Porcelli and Guippone, previously convicted federal narcotics violators, were observed visiting the apartment, departing with a large closed paper bag and driving off with it. More visits to the Williams apartment by Porcelli and Guippone followed.

Noting that Williams left his garbage in a green bag closed with a brown tape in the public corridor of his apartment to be brought out to the sidewalk for pick-up by the trash collector, DEA agents periodically removed some of the bags from the sidewalk, which yielded evidence identifying Williams and incriminating him and others. Among the items recovered from the trash was a note in Williams' handwriting dealing with a large-scale heroin transaction; records in code numbers of the financial accounts of various narcotics distributors, including payments and amounts owed; wrappers for mannite, a substance used to dilute heroin; traces of cocaine; and a record of large-scale narcotics sales. Pen registers*fn5 connected to the Williams phone lines from outside his apartment recorded the making and phone numbers of calls to Porcelli, Steward and Harrison. Numerous persons were observed visiting the Williams apartment, including Harrison, Porcelli, Guippone, defendants Paul Jenkins and Bernard Henderson (from whom DEA agents had purchased heroin).

On February 18, 1981, Judge Robert J. Ward of the Southern District of New York, upon the application of the DEA agents, approved in writing by Sanford M. Litvack, Assistant Attorney General of the United States, supported by an affidavit attesting to the foregoing information, authorized the installation of two listening devices ("bugs") in the living room (Apt. J) located downstairs in the Williams duplex to record pertinent conversations "from the premises known as the first floor of duplex Apartment J," which was connected to the upstairs bedroom (known as "1J" by a large open stairway).*fn6 Thereupon police officers, posing as telephone repairmen, installed two bugs in the Williams living room, one in a wall jack near the floor, and the other in a telephone having a standard 7-8 foot cord, which was too short to permit a person to carry the phone upstairs to Williams' bedroom unless the cord was lengthened.

Over the next few months DEA agents recorded scores of conversations in the Williams apartment which, with the agents' surveillance and evidence already uncovered, clearly established the existence of the above-described continuous narcotics enterprise and the participation in it of all of the appellants except Haynes. Porcelli and Guippone visited the Williams apartment on numerous occasions, carried out packages and had discussions with Williams regarding purchases of heroin and cocaine, amounts of money paid and owed, and problems in obtaining payment from Harrison. On March 6, 1981, for instance, they visited Williams, received $30,000 from him, and arranged to supply him with three-quarters of a kilogram of cocaine.On March 16, 1981, Porcelli received $30,000 from Williams and agreed to hold an eighth of a kilo of heroin for him.Although Porcelli and Guippone suspended deliveries when they discovered that their car was being surveilled in mid-March 1981 after a visit to Williams, Porcelli on April 29, 1981, resumed discussions with Williams regarding methods of continuing narcotics sales on a more secure basis to avoid government surveillance. When Porcelli was arrested on May 31, 1981, he instructed his daughter to tell his son-in-law, "George" (Valenti) to "get rid of" the narcotics. There was evidence from which it could be inferred that Porcelli had kept a "stash" of narcotics at Valenti's house. When Guippone was arrested he had 300 rounds of ammunition in his car and he denied knowing anyone named Williams or Felix Davis. However, in his wallet Guippone had several telephone numbers for Harrison in Williams' handwriting, as well as the address of Williams' daughter.

The electronic evidence against Harrison was equally incriminating and, coupled with the agents' surveillance and other evidence, revealed that Harrison was one of Williams' distributors until he fell behind in payments of money owed Williams for narcotics supplied by Porcelli and Guippone, whereupon Harrison sought to deliver cocaine to Williams in lieu of cash to repay his debt. For instance, on March 12, 1981, Harrison delivered 1-1/2 kilograms of cocaine to Williams, which proved to be unsatisfactory.Thereupon, on March 15, 1981, he delivered almost 2 kilos of cocaine to Williams. Williams was later overheard to say that on March 25, 1981, Harrison again delivered a kilogram of cocaine to Williams. When arrested, Harrison had one of Williams' phone numbers which he had obtained on a visit to the latter's apartment. A later search of Harrison's premises and car uncovered a sawed-off shotgun, hundreds of rounds of ammunition, some cocaine, and writings identified as heroin accounting sheets.

Onzelo Markum, Williams' younger brother, also known as "Junior," was taped discussing with Williams sales and deliveries of cocaine. For instance, on April 18, 1981, he advised Williams that he was bringing over "that girl" (code term for cocaine) and arrived one-half hour later, turning the cocaine over to Williams. His name was on Williams' narcotics accounting sheets. In addition to assisting his brother in the purchase and sale of narcotics he exchanged large amounts of cash proceeds ($30,000 to $40,000 a day according to Williams) at midtown banks.

Eric Nalven played several roles in the conspiracy, including that of narcotics tester and money launderer. When Agent Mitchell made his initial purchase from Steward he was told that he could use the back room of Nalven's bar to test the heroin sold.Although Nalven conceded purchasing cocaine from Williams for personal use in small gram amounts for $100 to $200, on several occasions he visited Williams' apartment and received cocaine in quantities associated with dealing rather than personal use, i.e., a purchase for $2,000 on one occasion and on other occasions amounts of cocaine that could be subdivided on others.

There was also evidence that Nalven acted as a money exchanger and narcotics-tester for Williams. The latter stated on one occasion, in offering to pay $150 for every $10,000 laundered, that Nalven had been "getting rid of five or six [thousand] for me a week." The tapes further revealed that at times when Williams received narcotics from a supplier he would ask "Eric" to test it and advise the supplier of the results, and that Nalven showed Williams how to use a microscope, an instrument Williams used to test cocaine for purity. After Williams' arrest his microscope was found to have traces of cocaine on it. When arrested Nalven falsely told the DEA agents that he never used cocaine.

The evidence against appellant Clarence ("Legs") Haynes was almost entirely hearsay: records taken from Williams' trash referring to "Legs" along with others listed as narcotics distributors; mention by Williams of Haynes as the person who used defendant Bobby James (who was acquitted) as a narcotics courier: and Williams' end of a conversation, purportedly with Haynes, in which Williams asked Haynes to tell Gabe McMillan "about shirts (a code word for narcotics) that he had passed." The non-hearsay evidence against Haynes consisted of a short phone conversation with Williams in which the former asked "what's happening" and the latter replied "ain't nothing happening;" admissions by Haynes upon arrest that he was known as "Legs," and that he knew Williams and Harrison and had spoken with them on the telephone but not about narcotics; and an address book containing names of alleged drug traffickers and a narcotics price list, which was found in an apartment he shared with James who testified that the book belonged to him and that the entries were made by him, not Haynes.*fn7

Appellant Willie Terry, who was tried separately before Chief Judge Motley, does not challenge the sufficiency of the evidence against him, which consisted of records of telephone calls by Williams to Terry's apartment; tape-recorded conversations between the two regarding efforts to purchase narcotics; records of "Terry" narcotics transactions found in Williams' trash; vials containing cocaine residue found on Terry when arrested; and a scale, small amount of marijuana and business card with "Davis" (Williams' alias) on it, all of which were sized from his apartment during a search incident to the execution of an arrest warrant.

Judge Owen, after evidentiary hearings, denied in reasoned opinions defendants' motions to suppress evidence derived from the retrieval and search of Williams' trash and the electronic surveillance of William's apartment and telephone. Likewise Chief Judge Motley, after an evidentiary hearing, denied in a written opinion Terry's motion to suppress the evidence seized from his apartment.

Discussion

A. CLAIMS COMMON TO ALL APPELLANTS

1. Searches of Williams' Trash

Williams contends that the warrantless searches by DEA agents over a six-month period of his trash bags, which were set out for collection in sealed opaque bags, violated his reasonable expectation of privacy and that evidence so obtained tainted the legality of the electronic surveillance order.*fn8 We disagree.

In the absence of evidence indicating an intent by the former owner to retain some control over or interest in discarded trash, his placement of it for collection on a public sidewalk in inconsistent with the notion that he retains a privacy interest in it. His act is one of abandonment. Abel v. United States, 362 U.S. 217, 241, 4 L. Ed. 2d 668, 80 S. Ct. 683 (1960); United States v. Vahalik, 606 F.2d 99, 101 (5th Cir. 1979), cert. denied, 444 U.S. 1081, 62 L. Ed. 2d 765, 100 S. Ct. 1034 (1980); United States v. Shelby, 573 F.2d 971, 973-74 (7th Cir.), cert. denied, 439 U.S. 841, 58 L. Ed. 2d 139, 99 S. Ct. 132 (1978); Magda V. Benson, 536 F.2d 111, 112 (6th Cir. 1976), (per curiam); United States v. Mustone, 469 F.2d 970, 972 (1st Cir. 1972); United States v. Dzialak, 441 F.2d 212, 215 (2d Cir.), cert. denied, 404 U.S. 883, 30 L. Ed. 2d 165, 92 S. Ct. 218 (1971); but see People v. Krivda, 5 Cal.3d 357, 96 Cal. Rptr. 62, 486 P.2d 1262 (1971), remanded, 409 U.S. 33, 93 S. Ct. 32, 34 L. Ed. 2d 45 (1972), aff'd on both state and federal constitutional grounds, 8 Cal.3d 623, 105 Cal. Rptr. 521, 504 P.2d 457, cert. denied, 412 U.S. 919, 93 S. Ct. 2734, 37 L. Ed. 2d 145 (1973).

When plastic trash containers and their contents are picked up by the collector and carted to a public waste disposal area, common experience teaches that the former owner obtains no implicit assurance that the trash will remain inviolate or free from examination. Indeed, once the trash is discarded the former owner rarely has any further interest in it other than to be assured that it will not remain at his doorstep. In the rare instance when he desires to preclude inspection by others of private papers in his garbage he may do so by first shredding or burning them or by hand-delivering the papers to a garbage-grinding machine. We do not view the mere use of taped opaque containers as indicating an intent to retain a privacy interest; these containers, apparently the most commonly-available type sold, are obviously designed to assure tidiness in appearance rather than privacy.*fn9 Such containers are hardly safety deposit boxes. In any event, even though the presence of other circumstances may indicate an intent to retain a privacy interest in trash (e.g., written restriction on containers or retention of containers on private property until collected), the circumstances in this case clearly evidence abandonment by William of his trash. Accordingly, we affirm the district court's denial of his motion to suppress the evidence seized from the trash searches.

2. Challenges to Electronic Surveillance in Williams' Apartment

All appellants challenge on several grounds the court authorized electronic surveillance in Williams' apartment. Their first ground, that evidence derived from illegal trash searches was used to obtain the eavesdropping order, is rejected for reasons already stated and because the application for the order disclosed probable cause independent of the trash-derived ...


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