Appeals from judgments of the District Court for the Southern District of New York (MacMahon, J.), convicting defendants of conspiracy to distribute heroin (Count One) and attempting to possess heroin with intent to distribute (Count Two).
Feinberg, Chief Judge, and Friendly and Pratt, Circuit Judges.
George Harris and Angelo Mamone appeal from judgments entered on jury verdicts in the District Court for the Southern District of New York (Lloyd F. MacMahon, Judge), convicting them of conspiracy to distribute heroin in violation of 21 U.S.C. § 846 (Count One), and attempting to possess heroin with the intent to distribute in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2 (Count Two). Having previously been convicted of federal narcotics violations, both defendants were subject to the enhanced penalties provided in 21 U.S.C. § 841(b)(1)(A), and each received concurrent terms of twenty years on Counts One and Two, and a $50,000 fine.
On appeal defendants contend, among other things, that (1) the evidence was insufficient to support their convictions on either count, and (2) the district judge erroneously excluded testimony crucial to the defense. We agree with defendants that the evidence was insufficient to support their convictions on Count Two for attempting to possess heroin with intent to distribute; accordingly, we reverse and dismiss on that count. On Count One, we find that the evidence was sufficient to support defendants' conspiracy convictions, but because we agree with defendants' evidentiary claim, we reverse and remand for a new trial.
The prosecution of Harris and Mamone was largely the product of an arrangement between the government and one Mahlon Steward, a narcotics dealer with a lengthy criminal record, who agreed to act as an informant and undercover operative for the federal Drug Enforcement Administration (DEA) following his most recent arrest in May 1981. Posing as a prospective heroin purchaser, Steward led the DEA to Harris, who, in turn, eventually led the DEA to Mamone.
The government built its case around the testimony of Steward and tape recordings of telephone conversations that Steward initiated with Harris. Steward testified that he had known Harrris for approximately ten years and that he had recently supplied Harris with two and one-half to three kilograms of heroin for roughly $500,000 between the spring of 1980 and January 1981. Shortly after he agreed to cooperate with the government, Steward contacted Harris in Detroit, Michigan, where Harris resided, in an effort to have Harris supply him with heroin. According to Steward, Harris told him that Harris "had a New York connection and he would see what he can do for me."
Steward learned that Harris would be arriving in New York City on November 24, 1981, and staying at the Sheraton Park Center. On that day Steward placed the first in a series of recorded calls to Harris, at the hotel, and agreed to meet Harris there later that night. In the meantime DEA agents confirmed that Harris had registered at the New York Sheraton that day. The agents then rented a room across the hall from Harris, from which they were able to monitor Harris's activities.
At 8:30 P.M. the agents observed Harris leave his room, go to the lobby, and wait outside the hotel. Several minutes later Harris entered a light blue, late model Oldsmobile 98 occupied by two white males. Although the agents conducting surveillance were unable to identify either of the men in the vehicle, one of the agents did observe that the car had New York plates and that the first two digits were 57. It was stipulated at trial that from November 1, 1981, to December 31, 1981, a blue 1980 Oldsmobile, New York registration number 573 GFY, was registered to Mamone's wife, at an address where Mamone then resided.
After Harrris returned to the Sheraton around midnight, Steward telephoned him from the lobby and then went upstairs to Harris's room to talk to him. Steward testified as to the conversation as follows:
Q. Can you tell the jury what you talked about during that conversation?
A. I talked to him about me purchasing an eighth of heroin, and he told me that at this time it was pretty -- things were pretty tough. His man was having problems. In fact, they were having some kind of war, and he told me that the man is a friend of ours.
Q. Did he tell you the name of that friend that you had in common?
Q. You knew who that was?
Q. Did you have any conversation with Mr. Harris concerning what he had done earlier that evening?
A. He told me that he went out to dinner with the connection and that he would see what he could do for me very soon, that he would get back with me. He told me that at that time he was having problems.
Q. How did you leave things that evening with respect to these arrangements?
A. We had an understanding that whenever he did get in touch with his connection and they were on again, whenever they were back in business again, he would put me down, that I would be able to purchase the heroin from them.
Steward next met with Harris on January 24, 1982, when Steward "went out to the Super Bowl in Detroit." At a hotel near the Detroit airport, Steward asked Harris what Harris "could do on the New York end." According to Steward, Harris "told me at this time that things were pretty tight. Right now he couldn't do anything right at that moment, but he said he would see what he could do."
Three days later, on January 27, Steward and Harris met again in Detroit at the Imperial Market where Harris worked. Steward introduced Harris to special agent John Jackson, who was posing as Steward's "nephew". During the course of a 45-minute drive through the Detroit area in Harris's car, Steward and Jackson told Harris that they had $40,000 in the trunk of their car. Steward testified that Harris
claimed that he could get an eighth for 48, but it was too high. We said it was too high.He said at that time that's why he wasn't going to bother with buying it himself because the price was out of hand. He said he would sweat it out until the price came down.
When asked by the prosecutor how he left things with Harris, Steward explained:
We had an understanding, George and I and my nephew who was the special agent that he would get in touch with us and cut us into the New York connection whenever he got into New York and make arrangements for us to purchase whatever we needed on a continuity basis. Someone would be able to take care of us throughout the whole period that I might need it.
Steward testified that over the next several months, he and Harris had many telephone conversations.Although he supposedly received numerous calls from Harris, however, Steward was able to record only those calls that he placed to Harris.
The first of the recorded calls that Steward initiated during this period occurred on February 3, one week after Steward returned from Detroit. During that conversation, Steward inquired in "coded" fashion, "You didn't get your car yet huh?", and reminded Harris, "I, uh, told you what I could do." Harris responded, as he had the previous week, "See I just say I was gonna sweat it out . . ." When Steward stressed, "You know it's kind of important that I do", Harris assured him, "As soon as I can I'll let you know."
In the next recorded call, on February 12, Steward inquired, "Is, is there any way possible for you to do what I asked you to do?" Once again, Harris failed to provide a definite answer.
Similarly, on March 13 Steward asked, "Is that call gonna be today?" This time Harris responded, "Uh, mm, no, uh uh uh y'know what I mean? I need to know what . . . if you can raise that cab today?" Steward replied, "Uh, I can do it Monday, no question, but I wanna know when they're gonna call me." Harris told Steward, "Well um I'll I'll talk to you before that."
Following an uneventful call on March 30, Steward again contacted Harris on April 9. Boasting that "I'm doing okay as far as y'know moneywise, kid", Steward suggested that Harris "reach the big guy * * * and, uh, let me know through him * * * when ya comin and when ya gonna arrange with that guy and we'll y'know and we'll be able to do something." This prompted the following exchange:
HARRIS: Uh, well uh uh I'm gonna be comin' thata way pretty soon.
STEWARD: Oh, Okay. You, uh, you got any. You got any any ideas just. . . .
HARRIS: I don't have no idea but I tell the big guy
HARRIS: Cause I figure you gonna tap him ...