Appeal from a judgment of the United States District Court for the Southern District of New York, Knapp, J., convicting appellant of distribution of and possession with intent to distribute heroin, 21 U.S.C. § 841(a)(1) (1982), and of conspiracy to commit the substantive offense, 21 U.S.C. § 846 (1982). We hold that the tape that was not produced by the government until after the trial contained only cumulative impeaching evidence, and, even if deliberately withheld, it did not require a retrial or an evidentiary hearing; the admission of evidence that the defendant performed acts described in the hearsay declarations of others was proper; a government witness could competently testify to a 1980 agreement to engage in drug transactions even though that agreement was not part of the charged conspiracy; the cross-examination of the defendant regarding his lifestyle, spending habits, false credit card applications and post-arrest statements was proper; the exclusion of evidence of a deceased co-conspirator's other drug dealings was proper; and the evidence was sufficient to support a guilty verdict on the distribution count.
Friendly, Van Graafeiland and Meskill, Circuit Judges.
Nicholas Sperling appeals his conviction for distribution of and possession with intent to distribute heroin under 21 U.S.C. § 841(a)(1) (1982) and for conspiracy to commit the substantive offense under 21 U.S.C. § 846 (1982). We affirm.
In 1977, Leroy "Nicky" Barnes was convicted of various narcotics offenses and of conducting a continuing criminal enterprise. After an unsuccessful appeal and petition for certiorari, Barnes began serving a life sentence without the possibility of parole. In 1982, he began providing information to the government in exchange for a promise that the Pardon Bureau in Washington, D.C. and anyone else he wanted would learn of his cooperation, and in the hope that his actions would eventually earn him a Presidential pardon.
Barnes was the government's most important witness in the trial that is the subject of this appeal. In January 1982, he was transferred to the Metropolitan Correctional Center (MCC) in New York City. Appellant Sperling's father, Herbert Sperling, was serving a life sentence for various narcotics offenses and was transferred to the MCC at about the same time. Barnes testified that he and Herbert Sperling agreed that Beverly Ash, a former girlfriend of Barnes, would meet with Nicholas Sperling to carry out a narcotics transaction at the Stage Delicatessen in midtown Manhattan. Manhattan. According to Barnes, Ash and Nicholas Sperling were to carry Life magazines as a recognition signal. Immediately after this discussion with Herbert Sperling, Barnes called the Drug Enforcement Administration (DEA) and reported on the proposed heroin deal.
The jury heard testimony about the following events. On February 11, 1982, DEA Agent Stanley Morrissey observed Ash at the Stage Delicatessen carrying a Life magazine. Nicholas Sperling entered the delicatessen with a folded magazine, left after a few minutes, returned without the magazine and seated himself across from Ash. Sperling placed a white piece of paper in front of Ash and left a few minutes later.
About a week after that meeting, DEA Agent Robert Baker, posing as a heroin buyer, was introduced to Ash. Ash discussed a possible sale with Baker and gave him a list of heroin prices. Two weeks later, she gave him another price list and a sample of heroin. According to Barnes, Herbert Sperling told him later that Nicholas Sperling had passed a sample of heroin to Ash.
Early on April 15, 1982, Ash called Baker to tell him she was going to meet her "source" at noon that day. From 11:35 a.m. when Ash left her apartment until 2:00 p.m. when she returned, she remained alone except for a 12:15 p.m. meeting with Nicholas Sperling at the Stage Delicatessen. No heroin was passed during that meeting and Sperling left within ten minutes of seeing Ash. At about 2:00 p.m., pursuant to their earlier arrangement, Baker called Ash and learned that Ash's "source" had agreed to sell Baker four ounces of heroin. Ash discussed the proposed sale with Baker several times before and after the April 15 meeting and referred to her source as a "young guy" and as "Nick" or "Nicky." The proposed sale never materialized, however. Ash was indicted along with Sperling but was murdered before trial.
After Sperling's trial and conviction, the government turned over to the defense a transcript of a pretrial conversation between Barnes and Chief Assistant United States Attorney William Tendy in which Barnes indicated that his primary motive for being an informant was to get back at his "former friends."*fn1 Sperling then moved before Judge Knapp for a new trial under Fed. R. Crim. P. 33. The government conceded that it should have produced the tape, but claimed that the tape was not deliberately suppressed and was cumulative in any event. Judge Knapp denied the motion. Sperling appeals from the judgment of conviction and from the denial of his post-trial motion.
Sperling contends that he is entitled to a new trial because of the government's failure to disclose significant Jencks Act material in a "closely contested case." In the alternative, he asks for a hearing to determine whether the government's failure to produce the tape until after trial was deliberate or merely negligent. Sperling also argues that state of mind declarations of others were improperly admitted to show his state of mind and that testimony of drug transactions occurring prior to the alleged conspiracy was improperly admitted as background to the conspiracy. He further claims that he was unfairly prejudiced by being cross-examined about his lifestyle, spending habits, false credit card applications and post-arrest statements. Additionally, he complains about the court's exclusion of evidence of his co-conspirator's other drug dealings. Finally, he maintains that there was insufficient evidence to support the jury's guilty verdict on the distribution count.
We conclude that even if the government withheld the tape deliberately, which it denies, there is no reasonable likelihood that the timely production of the tape would have affected the ...