Appeal from judgments of the United States District Court for the Northern District of New York, Miner, J., entered after a jury trial, convicting appellants of one count each of possession of hashish with intent to distribute, 21 U.S.C. § 841(a)(1) (1982), and of conspiracy to commit the substantive offense, 21 U.S.C. § 846 (1982). Held: (1) the trial judge's remarks to the jury tending to discourage a request for a readback of trial testimony were harmless error; (2) appellants could be convicted of possessing hashish even though the government never intended to relinquish it; (3) giving an aiding and abetting charge pursuant to 18 U.S.C. § 2 (1982) was not improper; (4) witness' in-court identification of appellant Findlen was proper despite an unnecessarily suggestive photo identification procedure; (5) there was no due process violation in the prosecutor's summation. Affirmed.
BEFORE: FRIENDLY, MESKILL and KEARSE, Circuit Judges.
Russell Damsky, Peter Findlen and Gary Romano appeal their convictions after a jury trial in the United States District Court for the Northern District of New York, Miner, J., of one count of possession of Hashish with intent to distribute, under 21 U.S.C. § 841(a)(1) (1982), and of one count of conspiracy to commit the substantive offense, under 21 U.S.C. § 846 (1982). Damsky and Findlen additionally appeal the imposition of cumulative sentences on their convictions. We affirm.
The jury heard the following evidence. DEA Agent Ronald Rockwell and confidential informant Peter Van Der Voort posed as major drug distributors in an investigation that began in Frankfurt, West Germany in May 1983. Van Der Voort introduced Rockwell to Daphne Van Der Does who was interested in purchasing hashish in the United States. Rockwell and Van Der Voort informed Van Der Does that there were 3,000 kilos of hashish available through a "Mr. Joseph." After Van Der Does expressed interest in a purchase, Rockwell introduced her to DEA Agent Marino Milano, a/k/a/ "Mr. Joseph," and Agent John Brown, who posed as Mr. Joseph's bodyguard.
Van Der Does telephoned her partner, Gerardus Hulst, in London, and then confirmed the transaction. Hulst and Van Der Does traveled to Syracuse, New York on June 3, 1983 to discuss the matter further with Agent Milano. Hulst wanted to see the hashish before agreeing to the purchase, so Milano took him and Van Der Does to a DEA "stash house" where 3,000 kilograms of hashish previously confiscated by the government were being stored. Hulst, Van Der Does and Agents Brown and Milano discussed a sale at the stash house; Hulst said he intended to transport the hashish by truck and said he would have three of his "strong boys" come to pick it up.
Agents Brown and Rockwell met Hulst and Van Der Does again in Syracuse on June 12. Hulst's "people" had arranged for a camper to be at the Howard Johnson's motel in Watertown. Hulst was to get the camper keys and give them to Brown, who would take the camper to the stash house, load it and return to the Howard Johnson's.
Early on June 13, Hulst and Agent Brown went to a room at the Howard Johnson's. Appellant Russell Damsky was at the motel at that time, but the camper had not yet arrived. In casual conversation, Brown lamented that the hashish would smell bad because it was so hot. Damsky said he knew that the smell would be a problem because he had "done this before," but it was "their problem" because he would be riding behind the camper in another car. Shortly after, Brown argued with Hulst and Damsky about payment arrangements for the hashish. Hulst told Brown he would try to call "Peter" to resolve the dispute. They went to a nearby Ramada Inn to make the call, but "Peter" did not answer. Hulst and Brown then agreed on a down payment and returned to the Howard Johnson's. Damsky told Brown that one of the drivers was outside and wanted to talk to him about how to load the hashish.
Agent Brown approached appellant Peter Findlen, who was standing near the camper. Findlen immediately told Brown he wanted to show him where to put the "stuff," cautioned Brown to lower the shades on the sides of the camper, suggested Brown use a radar detector, warned Brown not to speed and showed Brown how the boxes of hashish could be arranged to fit inside the camper. Findlen gave Brown the keys to the camper; Brown drove to the stash house, loaded it and returned to the Howard Johnson's. Damsky, however, refused to give Brown the balance of the money until the load had been checked and rearranged. Brown said he would not turn over the camper's key until he had all the money, but Damsky informed him there was a spare key underneath the hood. Brown, looking out the window from Damsky's room, saw Findlen and appellant Gary Romano lifting the hood and looking under it. Findlen and Romano then went into the camper; as Brown described it, "at one point [they opened] a box up and rummage[d] through the things." Tr. at 380, App. at 50.
In the meantime, Brown and Damsky continued to argue about the money. Damsky finally gave in, saying he presumed everything was all right with the delivery, or Findlen and Romano would have told him otherwise. Brown left the key to the camper on top of Damsky's television set and departed with Hulst.
Hulst, Van Der Does, Damsky, Romano and Findlen were subsequently arrested. Hulst and Van Der Does pleaded guilty to one count of possession of hashish with intent to distribute and one count of conspiracy to commit the substantive offense. Hulst received consecutive sentences of ten years incarceration on the conspiracy count and five years on the substantive count, with a two year special parole term on Count II. Van Der Does received sentences for the same terms as did Hulst, but her sentences ran concurrently.
Damsky, Findlen and Romano were tried jointly and each was convicted on both counts. Damsky and Findlen received consecutive sentences of three years each on Counts I and II, with a two year special parole term on Count II. Romano received concurrent sentences of four years on both ...