Appeal from two judgments of conviction entered in the United States District Court for the Eastern District of New York, Glasser, J. Appellant was convicted of possessing with intent to distribute approximately ten ounces of heroin and of distributing approximately one ounce of heroin.
Meskill and Pierce, Circuit Judges, and Metzner,*fn* District Judge.
This is an appeal from two judgments of conviction entered against Chaim Levy on June 8, 1983 in the United States District Court for the Eastern District of New York, Glasser, J. The first judgment, entered after a non-jury trial, was for possession with intent to distribute approximately ten ounces of heroin in violation of 21 U.S.C. § 841(a)(1) (1982). A second judgment, entered after a jury trial, was for the distribution of approximately one ounce of heroin in violation of 21 U.S.C. § 841(a)(1) (1982) and 18 U.S.C. § 2 (1982). Levy was sentenced to eight years imprisonment and a lifetime special parole for possession with intent to distribute and ten years imprisonment and a lifetime special parole term for distribution, the sentences to run concurrently.
In his appeal from the conviction for possession, Levy alleges that the district court erroneously denied his motion to suppress the heroin seized without a warrant in violation of the Fourth Amendment. He claims that the arrest itself was unlawful because the arresting Drug Enforcement Administration (DEA) agents had ample time to procure an arrest warrant but failed to do so.
Levy challenges his conviction for distribution of an ounce of heroin on two grounds. He claims that the district court improperly admitted evidence of "other acts" as defined by Fed. R. Evid. 404(b) (Rule 404(b))*fn1 that should have been excluded pursuant to Fed. R. Evid. 403 (Rule 403)*fn2 and that even with evidence of the "other act" before the jury, there was insufficient evidence to support his conviction.
We affirm Levy's conviction for possession with intent to distribute ten ounces of heroin. We reverse his conviction for the distribution of one ounce of heroin and remand to the district court for a new trial.
1. Possession With Intent to Distribute
An earlier DEA investigation of Chaim Levy became inactive when he was arrested in Israel on a passport violation. In early 1982, Special Agent James Kibble learned from several informants that Levy was trafficking in narcotics in the Brooklyn area and that he "dealt" from a gas station, usually on weekends when fewer police were around. The sources also stated that the narcotics were stored in a safe deposit box in an unidentified bank. DEA agents watched Levy's Brooklyn gas station and identified vehicles entering the premises as being registered to suspected narcotics dealers. In addition, the activities of the drivers of the vehicles and station personnel did not appear to be related to the purchase of petroleum products or mechanical repairs or maintenance. Levy was also seen conversing with known drug users.
On Monday, February 22, 1982, several DEA agents, including Agent Kibble, observed Levy hurriedly leaving the gas station and driving to a nearby branch of the Metropolitan Savings Bank. The bank closed before Levy's arrival and his attempts to enter were fruitless. The following morning bank authorities informed Kibble that Levy had access to two of their safe deposit boxes. On Friday, February 26, agents observed Levy entering the bank shortly before closing time and going to the safe deposit box area. Levy was wearing a heavy outer coat and nothing was seen protruding from his pockets. When Levy emerged from the bank, Agent Kibble noticed "a brown paper bag which was protruding from [Levy's] right pocket." Levy walked across the street where he was approached by Kibble and Special Agent Higgs. Kibble drew his weapon and held up his DEA shield. Levy reached for the bag and Kibble ordered him to "freeze" and raise his hands. Kibble then walked Levy to a wall, had him stand spread-eagle, patted him down for weapons and removed the protruding brown paper bag. Kibble opened the bag and saw a powdered substance packaged in plastic "baggies." Levy was informed that he was under arrest and advised of his constitutional rights. Laboratory analysis confirmed that the powder was heroin.
Levy conceded that the agents had probable cause to arrest him, but nevertheless moved to suppress the heroin on the grounds that (1) his arrest was unlawful because the agents failed to obtain an arrest warrant when they had ample opportunity to do so, and (2) he had been illegally searched without a search warrant. At a hearing on July 7, 1982, Judge Glasser denied the motion.
Levy then waived his right to a jury trial pursuant to Fed. R. Crim. P. 23(a). The parties stipulated to the facts as presented in the suppression hearing and the district court ...