Appeals from judgments of the United States District Court for the Southern District of New York (Leonard B. Sand, Judge), convicting all appellants of conspiracy to distribute heroin and to possess heroin with intent to distribute, 21 U.S.C. § 846; convicting appellant Myers of conducting a continuing criminal enterprise, 21 U.S.C. § 848, and directing the forfeiture of assets obtained therefrom, id.; and convicting appellant Tangee Afflic of receiving and possessing an unregistered automatic rifle, 26 U.S.C. §§ 5861(d) and 5871. Affirmed in part, reversed in part. Judge Newman concurs with a separate opinion.
Before: MANSFIELD, NEWMAN, and PRATT, Circuit Judges.
Steven Young, Alliebe Afflic, Lloyd Ward, Tangee Afflic, Charles Caviness, and Freddie Myers appeal from judgments of conviction entered on jury verdicts after a five week trial before Judge Sand in the District Court for the Southern District of New York. Each appellant was convicted of conspiring to distribute heroin and to possess heroin with intent to distribute in violation of 21 U.S.C. § 846 (count one). In addition, Myers was convicted of conducting a continuing criminal enterprise in violation of 21 U.S.C. § 848 (count two), and Tangee Afflic was convicted of receiving and possessing an unregistered automatic rifle in violation of 26 U.S.C. § 5861(d) and 5871 (count three). The jury also rendered a special verdict on the continuing criminal enterprise count, finding that approximately $3,000,000 of Myers's assets, including his house, were subject to forfeiture under 21 U.S.C. § 848(a)(2).
Judge Sand sentenced Myers to 40 years' imprisonment and a $100,000 fine; Ward to 15 years' imprisonment and a $10,000 fine; Young and Caviness each to 10 years' imprisonment and a $5,000 fine; Alliebe Afflic to 7 years' imprisonment and a $5,000 fine; and Tangee Afflic to 18 months' imprisonment. With the exception of Tangee Afflic, who is at liberty on bail pending this appeal, appellants have already begun serving their sentences.
On appeal defendants raise a myriad of issues, the most significant of which are (1) whether the § 846 conspiracy charge against Myers in count one was an eligible predicate offense for the § 848 continuing criminal enterprise charged against him in count two; (2) whether a search of Tangee Afflic's apartment was supported by probable cause where it was triggered by a signal from a police dog indicating (erroneously) that narcotics were present; (3) whether a warrant authorizing the search of Myers's house specified the "things to be seized" with sufficient particularity to satisfy the fourth amendment; (4) whether the extensive use of expert testimony by agents involved in the investigation of this case deprived appellant of a fair trial; (5) whether the evidence was sufficient to support the conspiracy convictions of Young, Ward, Caviness, and Aliebe and Tangee Afflic; and (6) whether the evidence was sufficient to sustain the forfeiture verdict as to Myers's home.
For the reasons set forth below, we affirm the convictions on all counts except for the conspiracy count against Tangee Afflic, which was not supported by sufficient evidence. However, we agree with Myers that there was insufficient evidence to support the jury's special verdict as to the forfeiture of his home, and we therefore vacate the corresponding portion of the judgment of forfeiture entered by the district court.
This prosecution was the product of a 10 month investigation by the federal Drug Enforcement Administration (DEA) with the assistance of the police departments of New York City, the City of New Rochelle, the City of Mount Vernon, and Westchester County. According to an affidavit filed by Wilfred Garrett, the DEA agent who supervised the case, the investigation began in the spring of 1982, when the DEA obtained information from a variety of sources, including a confidential informant, a telephone book confiscated from an arrested heroin dealer, and telephone company records, suggesting that Myers, who had previously been convicted of federal narcotics violations, was involved in the trafficking of substantial quantities of heroin. Acting on this information, the DEA initiated surveillance of Myers at his home at 205 Bradley Avenue in Mount Vernon, and his office at 1650 Broadway in Manhattan.
After eight months of wider surveillance had implicated Caviness, Young, and Alliebe Afflic, among others, and after the DEA had obtained corroboration from several other confidential informants, the government obtained an order from the district court, dated January 6, 1983, authorizing the interception of telephone calls to and from two telephone numbers at Myers's Mount Vernon home for 30 days. On February 4, 1983, that order was extended for an additional 30 days and broadened to include the two telephones at Myers's Manhattan office. Numerous calls were intercepted and recorded, which, together with intensified surveillance, implicated Ward and Tangee Afflic, among others. The investigation culminated in a series of searches in early March 1983, all but one of which were conducted pursuant to warrants.
A. The Government's Case.
As Judge Sand noted toward the end of this five week trial, all of the evidence against defendants was circumstantial. Because of this, and because each appellant has in one form or another challenged the sufficiency of the evidence, we find it necessary to review the government's case in considerable detail.
The theory of the prosecution was that Myers headed a large scale operation that was involved primarily in the distribution of heroin on a retail basis in Harlem. Ward was depicted as Myers's "principal business partner". Caviness and Young were portrayed as "lieutenants" in charge of the day-to-day affairs of the business. Keith Anderson, who was not tried for reasons unrelated to this appeal, allegedly operated a "mill" at which relatively pure heroin was "cut", i.e., diluted for street-level distribution. Alliebe Afflic, Myers's common-law wife, and her two daughters, Tangee and Valerie, the latter of whom was acquitted, were allegedly "couriers" who delivered packages of heroin to street-level pushers. The remaining defendant at the trial, William Bivens, was supposedly one such pusher, but he, too, was acquitted by the jury.
2. The March 6, 1983 Searches and Arrests.
Much of the evidence introduced by the government at trial was obtained on March 6, 1983 in a series of searches at seven locations belonging to or associated with the defendants. On that day, Myers's house, his and Anderson's offices, Ward's house, and the apartments of Young and Anderson were all searched pursuant to warrants; Margaret Nicks, Caviness's common-law wife, consented to a search of her apartment.
(a) The Search of Myers's House and the Arrests of Myers and Alliebe Afflic.
At Myers's lavishly furnished home in Mount Vernon, agents discovered evidence of great wealth. An astounding amount of cash was seized: $757,940 was found stuffed in a large black suitcase in the attic crawl space; $580,100 was found in a safe in a master bedroom closet; $40,000 was found in a woman's handbag in another master bedroom closet; and $1200 was found on top of a dresser in that room. In all, $1,379,240 in cash was confiscated.
An equally astounding amount of jewelry, valued at $1,371,105, was also seized. So were two Mercedes-Benz automobiles and 29 fur coats bearing the embroidered names or initials of Myers and Alliebe Afflic.
In addition to two shotguns, agents also discovered numerous photographs and documents that linked Myers and Alliebe Afflic with co-defendants Ward, Young, Caviness, and Anderson. Among the documents was a bill reflecting the sale of $75,000 worth of jewelry by Myers to Anderson and a certificate of title to a Jeep registered to Young.
Myers and Alliebe Afflic were present at the time of the search and were placed under arrest pursuant to a warrant. After they were advised of their constitutional rights, they were taken to a DEA office for processing, along with the other five defendants arrested that day. Upon encountering co-defendant Ward, Myers remarked, "You have my whole crew here. It looks like we are going to have a party here tonight."
(b) The Search of the Officers of Myers and Anderson.
Numerous documents and other exhibits were seized during the search of Suite 1210 at 1650 Broadway, the location of Myers's purported business: Rissa Chrissa Entertainment Consultants, Inc. and Myers & Associates Consulting, Inc. Papers seized there established that Myers was Rissa Chrissa's "executive vice president" and owned 50 percent of its stock. Business cards there indicated that Anderson, who had an office in the Rissa Chrissa suite, was a Rissa Chrissa "representative". Other documents showed that Myers leased an apartment at Harmon Cove Towers in Secaucus, New Jersey, at a monthly rental of $1,520, paid for that apartment from the checking account of Myers & Associates Consulting, and took weekly salaries of $650 from Rissa Chrissa and $500 from Myers & Associates Consulting. In Myers's desk agents also found an electronic device for the detection of tape recorders and electronic transmitters.
(c) The Search of Anderson's Apartment.
In a back room of Anderson's apartment at 984 Sheridan Avenue in the Bronx, agents discovered what the government contended at trial was a heroin "mill", equipped to "cut" heroin for street-level distribution. The room featured a large table covered with a white powdered residue. Using a vacuum cleaner with a special filter, a DEA chemist collected dust samples from a rug in the mill and from its perimeter. Subsequent chemical analyses showed that these dust samples contained traces of heroin. Further, residue on a plastic strip found in the mill also was determined to contain heroin with a purity in excess of 80 percent.
In addition to the heroin traces, a total of approximately 650 pounds of mannite was found in Anderson's apartment. Most of the mannite was contained in 17,000 packages bearing the brand name "Juppa", packed into 28 large cartons. Approximately 100 pounds of quinine were also recovered from Anderson's apartment. Special agent Magno testified as an expert that "in your better run organizations, they will use principally quinine and mannite" to cut heroin.
Among the other items that were seized from the mill were a measuring spoon, a heat sealer for sealing plastic bags, seven boxes of plastic bags, 14 wire strainers, playing cards, and shower caps. Special agent Magno testified that this type of paraphernalia was commonly used for cutting heroin.
The agents also discovered in Anderson's apartment a shotgun and bullets suitable for use in an automatic pistol. Various papers were seized as well, including telephone messages taken by Anderson from Myers and Rissa Chrissa business cards bearing the names of Myers and Anderson. One of the cards bore the handwritten notation "Train" (Young's nickname), and the notation "Eighth Avenue, 145th and 146th Street downtown, Ace Barber". Finally, the agents found three laundry tags bearing the name "Afflic", which proved to be an important link in the government's case against Alliebe Afflic.
(d) The Search of Ward's House.
The search of Ward's private residence in Teaneck, New Jersey yielded more than 90 pieces of gold and diamond jewelry; a safe containing a .38 caliber revolver loaded with "hollow point" bullets, $7,300 in cash, and a diamond ring; nine fur coats bearing Ward's nickname "Omar" and the name of his wife Dorthula; and keys to two safe deposit boxes.
On March 7, 1983, a search of Ward's safe deposit box at the U.S. Safety Deposit Corporation in Manhattan, pursuant to a search warrant, revealed $60,020 in cash as well as two diamond rings. The aggregate value of the jewelry seized from Ward's house and his safe deposit box was $236,655. In addition, two Merceds-Benz automobiles were found in his driveway, and documents showing his interest in these automobiles were found in his house.
Also seized from Ward's house were a series of imprinted business cards for "Myers & Associates Consulting, Inc.", "Rissa Chrissa Records", and "Rissa Chrissa Entertainment Consultants", all bearing the name of Freddie Myers; a telephone book that listed, among other things, the numbers of defendant Caviness (under the entry "Cad") and Young (under the name "Train"); a telephone bill for Ward's home telephone, showing five telephone calls to Anderson's apartment and other calls to Myers's home; and photographs of Ward with Myers, Caviness, Young, Anderson, and Alliebe Afflic, which were identical to some of the photographs found at Myers's home. Other documents seized from Ward's home reflected large expenditures, including the construction of a 16" x 32" swimming pool for over $41,000, and the rental of a $975 apartment at Harmon Cove Towers, the New Jersey luxury apartment complex in which Myers had also rented an apartment.
(e) The Search of Margaret Nicks's Apartment.
At the Bronx apartment of Margaret Nicks, Caviness's common-law wife, the searching agents seized an Ohaus triple-beam balance scale, which special agent Rooney testified was commonly used to measure narcotics that are being cut. They also found $17,685 worth of jewelry belonging to Caviness, and two sets of keys on a chain with a plastic tag bearing a large letter "C". Two of these keys opened the only two functioning locks on the door to the "mill", Anderson's apartment.
(f) The Search of Young's Apartment.
At Young's residence, Apartment 6A at 1600 Sedgwick Avenue in the Bronx, the agents found an Ohaus triple-beam balance scale, similar to the one found in Margaret Nicks's apartment, as well as a variety of holsters and live ammunition, a jacket containing traces of lactose, another commonly used cutting material, and a substantial amount of jewelry. Other evidence seized in Young's apartment included stock certificates indicating that he owned 50 percent of the Best Yet Car Service, located in the Bronx; two personal telephone books containing the telephone numbers of Ward (under the nickname "Amar"), Anderson (under his first name, Keith), and Myers (under "New York F"); and two photographs, depicting Young with co-defendants Myers, Caviness, Ward and Anderson.
(g) The Search of Charles Afflic's Apartment.
The final search that took place on March 6, 1983, at the apartment of Charles Afflic, Alliebe Afflic's son, also yielded incriminating evidence. However, Judge Sand granted Charles Afflic's pretrial motion to suppress the fruits of this search on the ground that the search warrant was not supported by probable cause. As a result of this ruling, the government dropped Charles Afflic from the case prior to trial.
3. The Investigation Prior to March 6, 1983.
(a) Surveillance of Defendants' Activities.
The jury learned of defendants' activities prior to March 6, 1983 through the testimony of officers who had conducted surveillance during the investigation. This testimony revealed Myers's close relationship with Young and Caviness and the apparent degree of trust he placed in them. For example, Young was seen entering Myers's garage when he was not at home. Similarly, Young and Caviness sometimes drove Myers's cars, and frequently chauffeured him to and from his office in Manhattan.
Surveillance also established that Young was associated with co-defendants Ward and Bivens. At one time Young drove his Cadillac to the New Salaam Restaurant on Lenox Avenue, which was managed by Ward. Young parked the car in front of the restaurant and went into the restaurant with an unidentified companion. After one or or two minutes, Young and his companion walked out of the restaurant and were approached by Bivens. Thereupon, Young reached inside his jacket and pulled out a small packet that "was white and * * * appeared to be clear plastic", and handed the package to Bivens, who put it inside his jacket and walked away from the area.
Further surveillance linked Ward with Caviness. Caviness was seen driving to the Ace Barber Shop on Eighth Avenue near 145th and 146th Street in Manhattan, a location that was also linked to Anderson through a written notation on a Rissa Chrissa business card found in Anderson's apartment. After double-parking his car, Caviness entered the barbershop without carrying anything, and returned less than two minutes later with a package which he put in the glove compartment. He then drove to the New Salaam Restaurant, where he met Ward.
Like Ward, Young, and Caviness, Alliebe and Tangee Afflic were also the subjects of extensive surveillance. On one occasion, Alliebe Afflic was seen driving to West 116th Street, where she gave a brown bag to an unidentified man who immediately entered a building that was surrounded by 25 to 30 people. The government offered expert testimony that these people "were waiting to purchase drugs."
On another occasion, Alliebe Afflic drove to Fifth Avenue between 119th and 120th Streets, accompanied by her daughter Valerie. After double-parking the car, Alliebe Afflic waited for almost ten minutes until Bivens approached. Reaching into the car and grabbing a folded newspaper that contained a small black bag, Bivens tucked it under his arm and walked across Fifth Avenue.
On a third occasion, Alliebe Afflic drove with Tangee Afflic to the vicinity of the building in which Myers maintained his office in Manhattan. The women parked the car in a garage on 52nd Street and walked toward the office building. Tangee Afflic was carrying a shopping bag. After turning onto Seventh Avenue, Tangee Afflic came back around the corner and stared directly at detective Magaletti, the surveillance officer. The women then continued toward the office building, "both looking all around." Tangee Afflic went directly into the 51st Street entrance of the building, while her mother walked further down the block, turned around and entered the building. When Alliebe and Tangee Afflic left the building together about 15 minutes later, neither was carrying anything.
The following day, Tangee Afflic was seen in front of 1600 Sedgwick Avenue in the Bronx. She brought "a small white package, or small white bag" out of the building and handed it to Alliebe Afflic, who was seated in her car, parked outside the building. Alliebe Afflic then drove home.
Additional surveillance, some of which was videotaped and played for the jury, linked Bivens to a building with a red door on Fifth Avenue between 118th and 119th Streets. At various times, a dozen or more people congregated in front of this location. Bivens appeared to control their access to and from the building. In addition, on one occasion, Bivens was seen on West 120th Street, handing an unidentified woman "[a]bout twelve" "glassine bags or little packages", which he counted out in exchange for money.
Officer Hight was permitted to narrate as the government played for the jury a videotape of activities at the "red door" location. In addition, as the government's expert on street-level narcotics transactions, he testified that in his opinion, there was a narcotics "shooting gallery" behind the door, the people in front of the door included "lookouts" and "touts", and some of the other people observed during the surveillance were distributing heroin.
(b) The Intercepted Conversations.
Several of the intercepted conversations that were played for the jury purportedly shed further light on the relationship among various defendants. For example, Myers gave Caviness what the government contended were "coded" instructions about a narcotics transaction he wanted to take place on 112th Street in Harlem. Using the name "Pleasure", Myers called Young at the Best Yet Car Service office, and asked to speak to Caviness, whom he directed in the following manner:
MYERS: Yeah, ah, what you, what I was telling you about the, uh, uh, uh, Twelfth Street, uh, do that by yourself, that part.
MYERS: Y'know? And, ah, y'know and the fellow go ahead, and, and be with his lady.
MYERS: Understand? What, where we're talking about around Twelfth Street.
MYERS: And, that way, that'll be cool.
Similarly, Myers castigated Ward for not bringing something to him on time, but did not suggest what he was referring to. Myers reminded Ward that he had told him "Either give it to me late Tue-, Monday, or early Tuesday," and complained about not hearing from Ward until 2:30 P.M. on Tuesday. He reiterated that "the last thing I told you was I said, man, either come see me late Monday, or see me early Tuesday, so I can take care of my business!" Finally, he instructed Ward to "come on up so I can take care of that."
Along the same lines, one "Lee" called Myers's office and told Ward that he "left somethin" * * * in the drawer for Fred * * * in two little bags." He told Ward to look for them, and to give them to Myers if he did not show up.
Finally, Myers was connected to Anderson's apartment by a telephone call made to Myers at his office. On February 24, 1983, a woman named Robin Majors called Myers to make arrangements for a trip that Myers, Ward, and others were taking to Atlantic City. When she asked Myers if there was a place she could leave a message late at night, Myers asked Anderson for "the number uptown to the apartment with the machine on it." Myers then gave Majors the telephone number of Anderson's Sheridan Avenue apartment, the "mill", which was equipped with a telephone answering machine.
(c) Defendants' Efforts to Detect and Elude Visual and Electronic Surveillance.
There was also evidence that many defendants were aware that they were subject to the surveillance and sought to avoid it. For example, Myers, Caviness, and Young frequently drove their cars as if they were seeking to determine whether they were being followed, and if so, by whom. On one occasion, soon after Caviness had driven to Myers's home in Myers's blue Merceds-Benz, Young, who was driving Caviness's BMW, suddenly stopped the car en route to Myers's house, remaining in the car and looking over his left shoulder for approximately five minutes. He then proceeded to Myers's house in the BMW and went inside. About one hour later, Young and Caviness left Myers's house and entered Caviness's car; Young was carrying a small light-colored package in his hand. Both men looked up and down the street before entering the car, as they frequently did before entering Myers's house. Thereafter, Caviness and Young drove at an unusually slow rate of speed.
Another time, while driving from Myers's house to Manhattan, Caviness pulled to the side of the road to let a surveillance car pass him. He then took a meandering tour of local streets in the Bronx -- often starting and stopping erratically -- taking about one hour for a distance ordinarily travelled in five minutes.
Similarly, while being tailed one time, Myers surprised the surveillance officer by abruptly leaving the West Side Highway at the 79th Street exit. Myers immediately returned to the highway and followed the surveillance vehicle to the vicinity of 57th Street.
Defendants' sensitivity to surveillance by law enforcement officers was demonstrated not only by their actions in response to visual surveillance, but also by their own words. In several wiretapped conversations, they specifically talked about detecting or eluding surveillance. Intercepted conversations also revealed defendants' concern that their telephones might be wiretapped. For example, in two telephone conversations with Charles and Tangee Afflic, Alliebe Afflic said that the telephones were "messed up". On one such occasion, she told Tangee Afflic to be "careful" not to talk in her home.
A similar exchange took place when Alliebe Afflic called Myers to inform him that one Tito Johnson had just been arrested by "the Feds" after "five pounds" of "stuff" had been found in an apartment where Johnson had been staying. Myers responded by making a transparent attempt to change the subject, saying, "Uh huh, so I didn't know nothing about it. I ain't seen the motherfucker in a hundred years. * * * I know you didn't call me to tell me that."
(d) "The Flash Inn Incident".
One of the more important episodes in the investigation was the so-called "Flash Inn Incident". On January 14, 1983, at 9:34 P.M., a man identified only as "Joe" placed a call from one of Myers's home telephones to another man named Rudy at a bar in Queens called "Mr. Ugly". Joe suggested that they meet at "The Flashin" Inn". When Rudy hesitated, Joe said to Myers, "He don't know how to get there too good. Anywhere else, Freddie?" Although Myers suggested a Mobil gasoline station on 125th Street, Rudy ...