Appeals from judgments of conviction entered in the United States District Court for the Southern District of New York after a four-week jury trial before Brieant, Judge, for conspiracy to distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. § 846, and for distribution and possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1), (b)(1)(A), and 18 U.S.C. § 2. Affirmed.
OAKES and WINTER, Circuit Judges, and MACMAHON, District Judge.*fn*
MACMAHON, District Judge.
Yvette Carson, Lemuel Mont and Kenneth Thomas appeal from judgments of conviction entered in the United States District Court for the Southern District of New York after a four-week jury trial before Honorable Charles L. Brieant, Judge.
The fifteen-count indictment charged Carson, Mont, Thomas and sixteen co-defendants with violations of the federal narcotics laws. Count 1 charged all defendants with conspiracy to distribute heroin and to possess it with intent to distribute from June 1980 until October 1981, in violation of 21 U.S.C. § 846 (1976).*fn1 The remaining counts (Counts 2 through 15) charged various defendants with distribution of heroin and possession with intent to distribute, in violation of 21 U.S.C. §§ 812, 841(a)(1), (b)(1)(A) (1976), and 18 U.S.C. § 2 (1976).*fn2 Carson was charged in three substantive counts (Counts 13 through 15) and Mont in seven counts (Counts 3 through 9). Thomas was named in the conspiracy count only.
Trial commenced against Carson, Mont, Thomas and co-defendant Gayburnetta Galloway.*fn3 At the close of the government's case, Judge Brieant dismissed Count 13 against Carson and Counts 3 through 6 against Mont and consolidated Counts 8 and 9 which named Mont.
After deliberating for three days, the jury found Carson guilty of the conspiracy count and one of the remaining substantive counts (Count 15), but found her not guilty on the other substantive count (Count 14). Mont was found guilty on the conspiracy count, the consolidated substantive count (Count 8), and the remaining substantive count (Count 7). The jury found Thomas guilty on the conspiracy count. Galloway was found not guilty on the conspiracy count, and the jury was unable to reach a verdict as to her on the substantive count (Count 15).*fn4
Viewed most favorably to the government, the proof showed a loosely-knit organization engaged in the distribution of heroin. Initially occupying the upper echelon were Fred Galloway and Fred Chaffin, who received heroin from sources identified as "the Italians" and distributed it through their network of associates. Chaffin was ultimately supplanted by Carson, who was affiliated with Guy Wilkins. Prior to his ouster in the summer of 1981, Chaffin served as both source and partner to the conspirators at the next level of distribution, Carson, Mont, and, at times, Guy Wilkins. These individuals cut heroin for further distribution and engaged in wholesale transactions as well. Carson's subordinates included her brother, Kenneth Nunes; Thomas Wilson; appellant Thomas and his brother, Howard Thomas; and the workers in Carson's cutting mill located at her residence. Wilkins' subordinates were Arthur Collins; Wilkins' brother, Michael Green; and Anthony and Philip Pegues. Working as distributors for Mont were Shawn Lovett; David Wilkins; and, prior to his advancement through the organization, Guy Wilkins. The roles of the various defendants became apparent during the course of sixteen months of undercover investigative work by agents of the Drug Enforcement Administration ("DEA"), who made fourteen purchases of high-quality heroin for approximately $151,400, and two pounds of quinine.
The principal evidence linking each appellant to the conspiracy is:
The evidence demonstrated that Mont was a major distributor of heroin. He was variously described as owning or operating the Our Place Bar,*fn5 a heroin marketplace. Thus, on several occasions, Guy Wilkins sold heroin to DEA Agents Baker, Coleman and Williams at or in the vicinity of the Our Place Bar. On August 13, 1980, Wilkins sold a sample to the agents and informed them that he and his brother, David Wilkins, received their heroin from the same source -- the owner of the Our Place Bar.*fn6 During this sale, the agents indicated that they could sell quinine to Wilkins' source, and Wilkins agreed to arrange a meeting between his source and the agents. On September 29, 1980, Guy Wilkins sold the agents two ounces of heroin for a price of $20,000 at the Our Place Bar.
Mont's heavy involvement in the heroin business was solidly shown by his dealings with the agents in October 1980. On October 3, Agents Baker and Coleman met with Mont at the Our Place Bar, and he agreed to purchase liquor from them.*fn7 En route to Queens to pick up the liquor, Baker told Mont that he was unhappy with the Wilkins brothers and was seeking a reliable source of heroin. Baker also offered to sell some quinine.Mont replied that he had heroin connections and could supply the four ounces that Baker wanted. After picking up the liquor, they returned to the bar, where Mont paid Baker $900 for the liquor in $100 bills. The serial numbers on two of the bills matched those on two of the bills that the agents had paid to Guy Wilkins for the heroin the agents bought on September 29. Mont stated that his connection was returning that evening and that the agents should remain at the bar.After a wait of two hours, nobody appeared and the agents left.
On october 27, Mont asked Baker about the quinine that Baker had offered On October 3. Baker replied that he had ten pounds left. Mont was interested and said he would speak to his connection about selling heroin to Baker. The following day, Guy Wilkins called Agent Coleman seeking immediate delivery of a pound of quinine for David Wilkins and Mont. Wilkins stated that he, his brother David, and Mont were partners in the heroin business. That evening, Agents Baker and Williams sold the pound of quinine to Mont at the Our Place Bar for $400. When informed as to what Wilkins had said about Mont's partnership with Guy and David Wilkins, Mont replied that Guy Wilkins used Mont's name when Wilkins wanted "some clout in his commitments." When Baker asked Mont about purchasing heroin, Mont indicated that he would have his connection bring a sample to the bar the next day.
On the following day, October 29, Agents Baker and Coleman arrived at the Our Place Bar, where they observed Mont, David Wilkins and Shawn Lovett conversing. David Wilkins went to the telephone, and Mont told the agents that he was trying at that very moment to get his heroin connection to bring a sample to the bar. David Wilkins and Lovett left the bar after again speaking with Mont. Guy Wilkins arrived and told the agents that he had received the quinine that they sold to Mont, that David Wilkins had given Mont the money to pay for the quinine and that Mont had recently sold David Wilkins an eighth of a kilogram of heroin.
Carson's role in the conspiracy was shown in a series of meetings between the conspirators and the agents. On July 21, 1981, Wilkins agreed with the agents to arrange their purchase of heroin from Fred Galloway. Subsequently, on July 25, the agents went to the Flash Inn at the appointed time and place. When Wilkins arrived, he was accompanied by Carson, whom he introduced as his "partner." Carson told the agents that she had met Wilkins through Fred Chaffin and acknowledged that she and Wilkins were now partners. Wilkins, Carson and Agent Johnson discussed the irony of Wilkins' dealing Carson's narcotics over a year, although neither was known to the other. Wilkins stated that Carson had an overseas heroin connection,*fn8 and Johnson asked Carson how it worked. Carson replied that a friend of hers had the connection, that her friend employed overweight women to carry the heroin into the country on their person, and offered to act as an intermediary between her friend and the agents if the agents wanted to buy heroin. Agent Williams asked Carson if she knew the people whom they were going to do business with that morning. Carson stated that she did and that she had met them through her "old man."
Later that day, at Close Encounters Discotheque, where the sale was consummated, Carson elaborated on her role in the heroin business.*fn9 She told Agent Williams that her "old man" was in jail, that she was running his heroin business, and that she had to be careful because she wanted to save money to "set him up right" upon his release from prison. She also stated that she had been Chaffin's partner for quite a while and that their partnership had ended "just recently."
On July 28, 1981, Agents Johnson and Baker met with Guy Wilkins and Carson's son, Kevin, at the Flash Inn.*fn10 Wilkins stated that he and Carson each had a half-pound of heroin and needed quinine. Later that day, Johnson and Baker met with Wilkins and Carson at a Jack-in-the-Box Restaurant in the Bronx. Carson said that she was rushed because of the presence of customers from Washington, D.C., to whom she was selling heroin. She also told Johnson that she would meet two potential sources later in the week and that she was "not too sure" about one but "85 per cent sure" of the other. Baker told Carson that he wanted to become her partner and asked her to mention him to her "Italian source," whom she planned to meet on July 30. Carson also reiterated the existence of her partnership with Wilkins.
On July 31, 1981, Agents Baker and Williams met with Wilkins, and Baker asked Wilkins what had become of Carson. Wilkins stated that Carson had visited a prison to obtain a reference for her introduction to some "Italian sources." Baker then asked if Carson had spoken to the "Italian source" regarding Baker's becoming a partner. Wilkins replied that the source had refused to meet with Baker.
The scope of Carson's involvement in the conspiracy was further evidenced in an aborted heroin transaction which took place on August 10, 1981. On that date, Agents West and Johnson met with Howard Thomas and Kenneth Nunes, Carson's brother, to purchase heroin. Nunes stated that he had to call his sister to approve the deal, then left the group and placed a telephone call. When he returned, Nunes said that his sister did not want to deal with the agents because Johnson asked "a lot of questions" the last time he met with her. On that evening, Howard Thomas also informed Agent West that Nunes was Carson's brother and that since Johnson knew Nunes, Johnson could go to Carson's house, which was the cutting mill. There, Thomas said, Carson employed six or more persons to cut and package heroin.
On August 12, 1981, Agent West, accompanied by an informant, conversed with Howard Thomas regarding Nunes' refusal to deal with the agents on August 10. Thomas indicated that Nunes had told him that Carson did not want to conduct business with Agent Johnson because the agents had asked "too many questions" on July 25. Thomas, apparently referring to the July 25 sale, also said that Carson had done a prior deal with Agents Johnson and West, and that Nunes was a runner and cutter for Carson.
Evidence tying Thomas to the conspiracy is as follows: On July 21, 1981, Agents Johnson and West negotiated with Kenneth's brother, Howard Thomas ("Howard"), for the purchase of one ounce of heroin. During the course of the negotiations outside the Star Lounge, the agents observed Thomas engaging in what appeared to them to be drug transactions, i.e., individuals approached Thomas and gave him money in exchange for something furtively handed to them by Thomas. Later that day, Howard introduced the agents to Thomas Wilson ("Hillside"), who sold them approximately one ounce of heroin for $8,500.
On August 6, 1981, Agents Johnson and West returned to the vicinity of the Star Lounge, where they asked Thomas if he could locate Howard. Thomas replied that Howard had told him what the agents wanted. Thomas then entered the agents' car and directed their search for Howard, whom they eventually found at the Star Lounge. Howard approached the car and Thomas left, positioning himself on a street corner. A short time later, Thomas approached Howard and attempted to hand him some money; Thomas was told to wait, and he returned to the corner. Thereafter, a woman approached Howard and asked if he "had anything;" Howard directed her to the corner where Thomas and others were standing.
On August 10, 1981, the agents again returned to the vicinity of the Star Lounge, where they met Howard. Howard indicated that his sources were temporarily out of heroin but would be resupplied that evening. Later, while waiting for Wilson to arrive, Howard told Agent Johnson that Wilson was one of only six or eight people who could go to the mill where the heroin was cut and that he, Howard, had been there only eight times during the past two and one-half years. While waiting, the agents watched Thomas, Howard and others engaging in numerous furtive exchanges which appeared to the agents to be narcotics transactions.
Later that evening, Howard suggested that the agents buy heroin from another source, which he indicated as someone sitting in a Lincoln Continental parked in front of the agents' car. When the agents seemed reluctant, Howard assured them that this person's heroin was from the same source as that provided by Wilson. The agents agreed to buy the heroin from the person in the Lincoln Continental, but the transaction did not take place because Thomas, Howard and a young woman spotted a surveillance vehicle across the street, walked toward it, and stood facing the vehicle for a short time. The driver of the Lincoln ...