Appeal by Marshall J. Muhammad, Charles Jones and Raymond Piacente from judgments of conviction following a jury trial in the United States District Court for the Southern District of New York (Lowe, J.) for various narcotics offenses primarily through the sale of drugs by way of forged prescriptions. The United States cross-appeals from the district court's order that set aside Jones' conviction by the jury on a charge that he was guilty of operating a continuing criminal enterprise in violation of 21 U.S.C. § 848. Affirmed, except as to defendant Jones' judgment of acquittal on the 21 U.S.C. § 848 count. That judgment is vacated and the jury's guilty verdict is reinstated. Judge Kearse dissents in a separate opinion from the reinstatement of the verdict against defendant Jones.
Meskill, Kearse and Cardamone, Circuit Judges.
CARDAMONE, Circuit Judge :
Three appellants are before us as a result of their convictions arising from their involvement over several years in the illegal distribution of a huge amount of drugs by forged prescriptions. After the jury returned a guilty verdict on a multi-count indictment against one of the appellants, the trial court set aside the verdict as to one count, which prompted the government's appeal. The resolution of the appeals from the judgments of convictions against appellants is relatively straightforward. What sets this case apart are the problems raised by the government's appeal.
The confusion began when the district court charged the jury that conspiracy violations and substantive violations attributed to a defendant because of his membership in a conspiracy could not be considered as predicate offenses to support a conviction for operating a continuing criminal enterprise in violation of 21 U.S.C. § 848 (1982). As our recent decision in United States v. Young, 745 F.2d 733 (2d Cir. 1984), makes clear, this charge was erroneous. Further, the jury was also directed to return with its verdict answers to certain written interrogatories. With this cautionary stroke, the district judge enabled us to know on what factual basis the jury reached its verdict. Such knowledge is crucial on this appeal because the jury found appellant guilty of those offenses that -- despite the trial judge's charge to the contrary -- we held may constitute predicates for a § 848 violation.
This is not therefore a case in which a jury possibly came to its result for an impermissible reason, but rather a situation in which a jury's sustainable verdict was reached after it acted in disregard of a legally incorrect charge. That is, this is the rare case in which two wrongs do make a right. For us to affirm the setting aside of the conviction -- in light of abundant evidence of guilt -- would simply compound the wrong. Hence, we reverse the district court's order and reinstate the guilty verdict.
Marshall J. Muhammad, Charles Jones, and Raymond Piacente appeal from judgments of conviction after a jury trial in the United States District Court for the Southern District of New York (Lowe, J.). The jury found Muhammad guilty of various narcotics offenses through his arranging the sale, in drugstores with which he was affiliated, of pharmaceutical drugs without the prescriptions required by law. He was convicted of four counts of distribution of narcotics in violation of 21 U.S.C. § 841, conspiracy to violate the narcotics laws of the United States in violation of 21 U.S.C. § 846, and operating a continuing criminal enterprise in violation of 21 U.S.C. § 848. The jury found appellants Jones and Piacente guilty under § 846 of a conspiracy to violate the narcotics laws. Jones was also convicted of four substantive narcotics violations under § 841, and operating a continuing criminal enterprise under § 848.
Appellants raise a number of claims, only two of which require discussion. All of the appellants argue that the district court erred by allowing the government on its direct examination to refer to the truth-telling provisions of the witnesses' signed cooperation agreements. Jones and Piacente also claim that the presence of two alternate jurors at the onset of the jury deliberations requires reversal of their convictions. The government has appealed contending that the district court erred in setting aside Jones' conviction on the § 848 charge.
The government's proof at trial established that between 1976 and 1983 massive amounts of prescription drugs were being dispensed without prescriptions or with forged prescriptions from the Harlem Community Pharmacy (Harlem Pharmacy) in Manhattan and the Liotta, Brownsville, and Established Pharmacies in Brooklyn. The government also proved that prescription drugs ordered for the Greenleaf Clinic in Queens were being diverted to the Harlem Pharmacy. The jury found that Muhammad, Jones, and Piacente were all involved in this illegal drug distribution scheme. Muhammad owned the Harlem Pharmacy and at some time was owner or part owner of the other pharmacies. His office was at the Harlem Pharmacy where he managed the pharmacy section. He also owned the Greenleaf Clinic. Jones managed the nonpharmacy section of the Harlem Pharmacy from 1977 to 1979, and later managed the Liotta Pharmacy. He was also part owner of the Brownsville and Established Pharmacies. Piacente managed the nonpharmacy section of the Liotta Pharmacy.
One of the government's witnesses at trial was James Stephenson, a United States Drug Enforcement Agent, who testified with respect to audits of the pharmacies and the clinic. His testimony demonstrated that purchases of controlled substances were not balanced by prescription sales, with purchases exceeding sales by a ratio of ten to one. In addition, several unindicted co-conspirators testified for the government. Jean-Marie Joseph was the supervising pharmacist at Harlem Pharmacy in 1977, later he worked part-time at Liotta and Brownsville, and was part owner of Established where he also worked as a pharmacist. Joseph worked at Harlem Pharmacy at a time when Charles Jones managed the nonpharmacy section. Joseph testified that he and others sold controlled substances under forged prescriptions and that Jones gave him blank prescription pads and asked him to forge prescriptions at home. According to Joseph, Jones paid him for the forged prescriptions he produced, which Jones then stored in a box. He testified that the same pattern occurred at the Liotta and Established Pharmacies. Finally, Joseph testified that Muhammad often pressed him to increase both his ordering of narcotics from the wholesalers and his illegal sale and distribution of those drugs at the pharmacies.
Evelyn Dorval, a licensed pharmacist who worked at the Liotta Pharmacy, testified that Jones and Piacente sold controlled substances in the back room. Juanita Solas, who also worked at the Liotta Pharmacy, testified to her own and Jones' and Piacente's involvement in the sale of controlled substances. Frederick Ibitoye stated that he had written prescriptions at Liotta Pharmacy at Jones' and Piacente's request. Herman Fleming, a clerk and stockboy at Harlem Pharmacy, asserted that Muhammad and Jones sold drugs illegally there. Fleming also testified that he picked up packages of controlled substances from the Liotta and Brownsville Pharmacies and brought them to the Harlem Pharmacy. Cathy Jo Wilton, administrator of the Greenleaf Clinic and an indicted co-conspirator, testified that she ordered prescription narcotics for the clinic and delivered them to Muhammad at the Harlem Pharmacy. Wilton also testified that she forged prescriptions at Muhammad's request and that he supplied her with a model prescription form and blank prescription pads.
All of the above witnesses, except the DEA agent and the stockboy at Harlem Pharmacy, testified pursuant to cooperation agreements with the government. At trial these witnesses testified on direct examination regarding the portion of the cooperation agreement that required them to testify truthfully.
Shortly before the district judge charged the jury, defense counsel requested that the alternate jurors not be discharged. One of the regular jurors had indicated that she might have to leave early, and defense counsel indicated that they wanted to facilitate her substitution in that event. Appellants' counsel urged the trial court to allow two or three alternate jurors to be present during deliberations. Upon being assured that this was the choice of all the appellants, the trial judge granted this request. At the end of her charge, Judge Lowe instructed two of the alternate jurors to sit and listen to the jury's deliberations. She emphasized that although the alternates could be present, they were not to participate.
Less than two hours after the jury had retired, the government's attorney informed the court that research had revealed that alternates should not be present in a jury room during deliberations. Judge Lowe promptly recalled the jury and discharged the two alternates. At that time the court asked them whether they had participated in the deliberations. One alternate said they had not; the other was ambivalent. The trial judge then instructed the regular jurors to begin their deliberations anew and to disregard all discussions that had been held up to that point. The jury deliberated for another 14 hours before reaching its verdicts.
The district court had directed the jury to return a special verdict on Charles Jones' continuing criminal enterprise charge, 21 U.S.C. § 848. The jury was requested, among other things, to identify the three predicate narcotics violations necessary to support a § 848 conviction. When the jury returned a guilty verdict on the continuing criminal enterprise charge against Jones, the district court set that verdict aside and entered a judgment of acquittal because it concluded that the jury had improperly relied on § 846 narcotics conspiracy violations as predicate offenses for the § 848 conviction.
A. The Truth-Telling Provisions of the ...