The opinion of the court was delivered by: BECHTLE
All of the above defendants, except James H. Simmons,
were tried on the two indictments consolidated for trial charging violations of various of the narcotic laws of the United States and, after three weeks of trial, were found guilty by the jury on each count that was permitted to go to the jury.
All convicted defendants have moved for judgment of acquittal pursuant to Fed. R. Crim. P. 29 or, in the alternative, for a new trial pursuant to Fed. R. Crim. P. 33. Each of the defendants has raised a variety of grounds in support of their respective motions, which in many cases are identical. All motions outstanding in respect to all defendants will be denied for the reasons enumerated in this Opinion.
On November 13, 1972, the United States Department of Justice filed with the Clerk of the United States District Court for the Eastern District of Pennsylvania an application for a Court Order in accordance with the provisions of Title 18, U.S.C., § 2510, seeking authority to cause the installation of a wiretap on the telephone registered as number (215) 879-5424 in the name of Alvin E. Young and located on premises 5411 Arlington Street, Philadelphia, Pennsylvania. The probable cause offered in support of this request was to the effect that Alvin Young and others were suspected of being engaged in the business of large-scale heroin purchase, process, distribution and sale in the New York and Philadelphia areas. Following a hearing before the Honorable J. William Ditter, Jr., of the United States District Court for the Eastern District of Pennsylvania, on November 13, 1972, the application was approved; the interception was activated and continued until November 29, 1972, during which period of time Federal agents of the Bureau of Narcotics and Dangerous Drugs (BNDD), under the supervision of Special Agent James Banister, monitored through standard listening and taping procedures the telephone calls that were incoming and outgoing from the telephone line in question.
The Government's principal evidence consisted of the testimony of Linda Johnson, an informant and also an unindicted coconspirator; a real estate agent from Willingboro, New Jersey; several Philadelphia Police Officers and agents of the BNDD, all assigned to the Office of Drug Abuse and Law Enforcement (ODALE); six telephone conversations, intercepted in accordance with the Court-approved electronic surveillance; and, 14,000 bags of heroin seized from a 1966 black Oldsmobile. There were also several stipulations, including the stipulation that the 14,000 bags that were seized in fact contained heroin and that 15 calls were made from a telephone registered to Alvin E. Young to the Hotel Dash on Lenox Avenue in the City of New York during June and July of 1972. The informant witness, Linda Johnson, testified that she first met Alvin E. Young in April, 1972. She and Alvin E. Young, together with all of the defendants, had on four or six occasions driven to the City of New York for the purpose of purchasing large quantities of loose heroin. She indicated that on one occasion in August of 1972 she drove to New York with these men and, when they arrived there, Alvin E. Young handed her $72,000 in a package which she took with her when she and Alvin E. Young went into the Dash Hotel. The money was counted in her presence and used to purchase two kilos of heroin, which Linda Johnson placed in a large pocketbook. She was thereafter told by Alvin E. Young to return to Philadelphia on a bus in the company of defendant Robert Green. She testified she made two or three such trips and on each occasion, on return to Philadelphia, she would visit a different house where all of the defendants and other unidentified persons would meet for the purpose of adulterating, cutting, bagging, packaging, and readying the heroin for sale and distribution in small glassine bags. She testified that, during this period of time and for several years before, she had been befriended by Philadelphia Police Officer Grant Beasley who was on the Philadelphia Police Department Narcotics Squad and who sought and received information from her from time to time on a regular basis in respect to criminal activities, including narcotics sales, for which she was paid money by Officer Beasley.
On January 2, 1973, while Officer Beasley was in Linda Johnson's home, he listened in on a call, with Linda Johnson's permission, between her and Alvin E. Young. The substance of the call was to ask if "Sonny" (defendant Harvey Johnson) was there and to ask if Linda Johnson's car could be used the next day, January 3, 1973, for a delivery of narcotics. Officer Beasley reported this overhear to his superiors at ODALE and a ten-man surveillance team was thereafter formed to meet the following morning at 7:00 a.m. to begin surveillance near Linda Johnson's home on North Philip Street.
At 7:00 a.m. on January 3, 1973, ten agents, operating under the authority of Chief Investigator Edward R. Cassidy of the BNDD, assembled at the headquarters of ODALE at 308 Walnut Street, Philadelphia, Pennsylvania, for the purpose of preparing a surveillance plan to take place in the several blocks surrounding the vicinity of premises 2119 North Philip Street, Philadelphia, the residence of Linda Johnson. The ten officers were from the Philadelphia Police Department and assigned to ODALE, in keeping with a joint Federal-state drug law enforcement program approved by the United States Congress, accepted by the state and executed under Federal supervision. Each of five unmarked, civilian-type automobiles containing two officers were scattered in the vicinity at five prearranged locations, each with radio communication capability to and from each other. The primary object of the surveillance was a 1966 black Oldsmobile which was seen in the vicinity by several of the surveillance officers. Defendants Charles Harris and Harvey Johnson were also seen individually at separate nearby locations during the one-hour surveillance.
The 1966 black Oldsmobile left the vicinity, but could not be followed by any of the surveillance vehicles due to heavy traffic. The surveillance vehicles were then directed by Agent Cassidy to leave the area and go to the community of Willingboro, New Jersey (approximately 25 miles distant), and assume prearranged surveillance positions at two residences in that community, to wit, 98 Manor Lane and 4 Tempest Lane, properties which Alvin E. Young was believed to have either a residence or an ownership interest in. The agents who went to the Tempest Lane address were satisfied that there was no activity of any kind there, and they joined the other agents who had concentrated their efforts in and about the vicinity of 98 Manor Lane. Chief Investigator Cassidy and Sergeant William Baron of the Philadelphia Police Department, occupying one car, drove past 98 Manor Lane and, in doing so, passed by Alvin E. Young and another unidentified male who were standing in the street. The officers assumed a surveillance post while seated in their car at a point some 250 feet away and beyond certain other properties containing shrubbery where, with the use of field glasses, the front of premises 98 Manor Lane was visible. In such position, they saw the following events:
(1) Charles Harris, Harold E. Young, and an unidentified Negro male left the house about 11:00 a.m.
(2) Charles Harris walked to a yellow vehicle parked on Manor Lane, opened the trunk and reached in, bent over and walked in such a manner as permitted the surveillors to conclude that he had an object in his hands, although they did not see the object. He went to the 1966 black Oldsmobile which was the same one that had been under surveillance earlier near 2119 North Philip Street, Philadelphia, and he appeared to place the object in the trunk of that car.
(3) The 1966 black Oldsmobile, driven by Charles Harris, left and was followed by a 1967 Pontiac driven by defendant Harold E. Young. The surveillance team followed. The defendants' cars proceeded south on New Jersey Route 130, which parallels the Delaware River, crossed the Tacony-Palmyra Bridge into Philadelphia, and proceeded over Levick Street, down Roosevelt Boulevard to the ultimate destination at 15th and Louden Streets, where both of the automobiles came to a parked position a short distance apart. Both drivers left their vehicles and waited on the sidewalk. During this period of travel, the five Government vehicles, alternating their surveillance positions, closely followed those vehicles over the entire route to the place where both vehicles stopped.
Charles Harris and Harold E. Young were arrested on the sidewalk at 15th and Louden Streets. Charles Harris stated to arresting officers that he did not know anything about the 1966 Oldsmobile in that he had "arrived at the scene in a taxi cab."
Other than the foregoing, neither of these two defendants made a statement. They were taken to ODALE headquarters, given their warnings, and thereafter at 5:30 p.m. a search warrant for both vehicles was prepared and executed before Judge John J. Poserino, a State Court Judge presiding for such purposes at 5:30 p.m. at the Philadelphia Police Administration Building. At 7:30 p.m. that evening, both cars were searched. Found in the trunk of the Oldsmobile were 14,000 bags of white substance which the defendants later stipulated was heroin.
On January 23, 1973, the Federal Grand Jury returned indictment number 73-45 against Charles Harris and Harold E. Young, charging Charles Harris in Count I of possessing a controlled substance (heroin) for purposes of distribution or sale, in violation of 21 U.S.C. § 841. Count II of that indictment charged Harold E. Young with aiding and abetting Charles Harris in possessing the controlled substance with the intention of sale and distribution.
On April 3, 1973, the second indictment (number 73-193) was returned by the Federal Grand Jury, and it contained three counts. The first count charged the two defendants already under indictment, together with four others, with a conspiracy to possess with intent to deal and to distribute quantities of heroin, in violation of 21 U.S.C. § 841. The second and third counts of this second indictment were against Alvin E. Young only and charged him in Count II with the use of a telephone in connection with a drug transaction (21 U.S.C. § 843(b)) and in Count III with being a principal in a continuing criminal enterprise involving narcotics (in violation of 21 U.S.C. § 848).
The charges relating to heroin possession contained in the earlier indictment against Charles Harris and Harold E. Young were also set forth in the conspiracy count of the second indictment as an overt act.
The Government authenticated electronic surveillance by introducing the record of the Court Order and its approval by the Honorable J. William Ditter, Jr., and also produced as identifying witnesses Linda Johnson and Officer Grant Beasley, who both had previously heard Alvin E. Young and Harold E. Young talk in person and on the telephone. Both of these witnesses had indicated that they had talked to Alvin E. Young and that they had listened to the tapes and that, in their opinion, the voices were of Alvin E. Young or Harold E. Young and, in some instances, unidentified. They compared the tapes that they had heard with typed transcripts prepared by the Government from the tapes, and the witnesses then testified that the designation on the transcripts of various statements made by either Alvin E. Young or Harold E. Young was an accurate representation of what each of those persons had stated on the tapes. Both identifying witnesses testified they had never seen the transcripts before but identified the voices on the basis of their ability to perceive the sound and quality of the taped voices with the actual voices of these two defendants that they had previously come to know. The tapes were played for the jury under the instructions that they were to consider the voices they heard on the tapes as the evidence and not the transcripts that were simply to be used as a guide by the jury in following the tapes. The calls indicated that Alvin E. and Harold E. Young spoke several times, and Alvin E. Young had spoken to unidentified persons several times. In summary, the incriminating excerpts from the telephone calls could be summarized by stating that Alvin E. Young indicated soon after the tap was authorized that he knew he was being wiretapped; he referred to the use of "b's," to which the Government produced expert testimony that this term in the narcotics trade meant "bundles" which, in turn, had been described as a term used for a package of 25 glassine bags of heroin. There was also a reference to the fact that Alvin E. Young realized he was being followed by Federal narcotics agents; several other common references in the narcotics trade were used by Alvin E. and Harold E. Young, and there were excerpts of episodes of conversation where intelligible words and phrases were used by Alvin E. Young but which were responded to by Harold E. Young in intentionally formed but unintelligible responses that were sufficiently loud and clear to justify the jury in concluding that the responses were in a form of code language. There were excerpts to the effect that certain "people got busted with 56 "b's" which was offered to show that Alvin E. Young's knowledge that 56 "bundles" of heroin were found on persons arrested.
None of the defendants took the stand in their own behalf. Some of the defendants offered evidence; others did not. Defendant Robert Green offered as a witness the stepmother of Linda Johnson, who testified as to the events surrounding a charge of assault with intent to kill and aggravated assault and battery that had been made against Linda Johnson during an altercation in the stepmother's home in 1972. He also called Assistant District Attorney Taras Wochok, Esq., who was the Philadelphia County equivalent of the Assistant United States Attorney functioning on the state side of the joint Federal-state law enforcement team operating under ODALE. Defendant Harold E. Young produced hospital record evidence concerning Linda Johnson's hospitalization for drug addiction; Harold Joseph, a commercial photographer, who testified that he had taken certain pictures on June 11, 1973, in the presence of Mr. Yermish, his attorney, at premises 98 Manor Lane; and Professor Korbobo, who testified that it was his opinion from observing the photographs and identifying the various types of shrubbery that certain of those plantings, between the premises 98 Manor Lane and the point where the surveillance agents testified they observed certain events, were of the species that would have made visibility difficult if not impossible on January 3, 1973. Charles Harris called two Philadelphia detectives who testified as to their experience with Linda Johnson as a police informant. Neither Alvin E. Young nor defendant Harvey Johnson offered any evidence.
The principal thrust of all defendants was to destroy the credibility of the Government's witnesses and primarily Linda Johnson. The cross-examination of the Government's witnesses was extensive in this respect. The defense showed that Linda Johnson for a number of years had been a narcotic addict, a heroin addict, a prostitute, an informant, a person who had 14 or 15 arrests, and who was testifying because she expected to receive lenient treatment or recommendations of lenient treatment for her convictions from a State Court sentence. Defendant suggested that her previous ability to stay out of jail was a direct consequence of her being an informant for law enforcement officials and that law enforcement persons were responsible for her narcotic addiction and that she was dependent upon them and, therefore, was inclined to lie. Defense also attempted to show that Officer Grant Beasley similarly was inaccurate in his testimony, was unreliable, and was in collaboration with Linda Johnson in furnishing false testimony.
The jury disagreed with the defendants' theories and concluded that the Government had made out its case beyond a reasonable doubt against all defendants and returned a guilty verdict on all counts accordingly.
CONSOLIDATION OF THE TWO INDICTMENTS FOR TRIAL
Pursuant to Rules 8(b) and 13 of the Fed. R. Crim. P., the Court consolidated criminal numbers 73-45 and 73-193 and joined the five defendants in trial, in that the defendants were "alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." Fed. R. Crim. P. 8(b).
Defendants now contend that the trial court erred in consolidating the two cases for trial.
The Court properly exercised its prerogative by consolidating criminal numbers 73-45 and 73-193 for trial. A conspicuous example of the correctness of the consolidation order lies in the fact that proof of the charges in 73-45 is actually proof of one of the overt acts charged in 73-193. Specifically, criminal number 73-45 charged Charles Harris with unlawful possession with intent to distribute about 14,000 bags of heroin and charged Harold Young with aiding and abetting the possession by Charles Harris. The possession and transportation of this quantity of heroin was alleged by the Government to be a substantial overt act done in furtherance of the conspiracy charged in criminal number 73-193.
In addition to the two-fold introduction of expert and empirical evidence, two separate trials would have resulted in the complete duplication of both Government and defense witnesses. The two indictments were properly consolidated.
DEFENDANTS' ARGUMENTS AS TO SEVERANCE
Defendants Harvey Johnson and Robert Green allege as an additional basis for the granting of a new trial that the Court committed error in denying their respective motions for severance. Defendant James Simmons was severed from the conspiracy indictment for trial purposes for reasons which the Court concludes were justified.
Motions for severance were submitted in writing prior to trial and were renewed orally throughout the course of the trial. Exercising the discretion afforded the trial judge, the Court denied the defendants' motions for severance. See, Opper v. United States, 348 U.S. 84, 95, 75 S. Ct. 158, 165, 99 L. Ed. 101 (1954); United States v. Wolfson, 289 F. Supp. 903 (S.D.N.Y. 1968).
Defendant Harvey Johnson cites the complexity of proofs, the number of defendants, the diminution of the quantity of peremptory challenges otherwise available to defendant, and the possibility of antagonistic and inconsistent defenses as grounds for the granting of his motion for severance.
The Government correctly contends that a severance should not have been granted, because all of the defendants were allegedly involved in an integrated, highly organized scheme of purchasing, packaging, and distributing heroin and that the facts tending to establish the guilt of each defendant were essentially identical. In retrospect, overwhelming evidence adduced at trial in fact established the existence of such an unlawful conspiracy and significant participation in same by all the named defendants. A severance of one or more of the defendants would have compelled the Government to conduct several trials involving substantially the same evidence and the same witnesses, all introduced to prove the existence of, and participation in, one conspiracy.
The court in Wolfson, at p. 908, stated that defendants indicted together should be tried together and that this general rule is particularly appropriate when the conspiracy may be proved against the defendants by the same evidence resulting from the same or a similar series of acts.
The reasoning and decision in Wolfson is certainly applicable to the facts in this case. The Government proved the existence of the conspiracy by introducing evidence of a series of unlawful acts engaged in by all of the defendants at one time or another in pursuit of their common conspiratorial objectives.
"In weighing the competing factors under Rule 14 regarding severance, the trial court must evaluate the alleged factual and legal compactness of the consolidated trial and the Government's interest in judicial economy with the potential prejudice to any of the defendants." United States v. Harris, 458 F.2d 670, 673 (5th Cir. 1972). This Court is unable to state that the offenses involved and the evidence presented were so complex so as to preclude a separate and intelligent evaluation of the evidence as it applied to the several charges that had been made against the five defendants individually.
Moreover, to sever the consolidated trial and to require two or more separate trials would impose a tremendous financial and physical burden on the resources of our judiciary and the supporting agencies operating in connection with the criminal justice system. The generalized prejudice alleged by the defendants does not justify the imposition of such a burden. "To demonstrate prejudice under Rule 14, defendants must demonstrate something more than the simple fact that they sat together at a joint trial for conspiracy." United States v. Harris, supra, at p. 673. (Emphasis added.) Similarly, the fact that the Government introduces considerably more damaging evidence against one defendant than the others does not entitle any of the defendants to a separate trial.
In summary, there is nothing in the record that dictates reversal because of any confusion or injustice arising from the joint trial.
EXCLUSION OF JURORS BECAUSE OF RACE
Defendant Harvey Johnson seeks a new trial on the additional grounds that the Government systematically excluded members of the Negro race from the petit jury by exercising four of its six peremptory challenges to strike blacks from such jury. A claim of systematic, discriminatory exclusion of Negroes from the trial jury cannot be established by proof of the Government's striking of Negroes in any one case. United States v. Pearson, 448 F.2d 1207, 1213 (5th Cir. 1971).
". . . the thought processes of the prosecutor in deciding how he will exercise these [peremptory] challenges is beyond the Court's inquiry, and the resulting composition of the jury in a particular case does not establish impropriety." (United States v. Corbitt, p. 886.)
See also, Swain v. Alabama, 380 U.S. 202, 220, 85 S. Ct. 824, 836, 13 L. Ed. 2d 759 (1965); United States v. Carlton, 456 F.2d 207, 208 (5th Cir. 1972).
Defendant's motion on this ground will be denied.
DENIAL OF MOTION FOR DISCOVERY OF PREMISES 2119 North Philip Street
If it were necessary to summarize the reasons why the denial of this motion was proper, it would be fair to say that the denial resulted from a lack of appreciation by counsel with the need to comply with Local Rules of Criminal Procedure coupled with a similar lack of appreciation for the limitations of a xerox machine. The two Local Rules of Criminal Procedure involved on this point are Local Rule 9, providing for pretrial discovery, and Local Rule 11, governing pretrial motion practice.
Local Rule 9 is fashioned after Federal Rule of Criminal Procedure 16, which is designed to provide the maximum scope of pretrial discovery for defendants under a system that encourages and requires the process to be initiated and managed by counsel rather than the Court, except when all negotiation fails. When this occurs, Local Rule 9 prescribes at paragraph (b) that disappointed counsel file a motion under Local Rule 11 specifying the fact that the conference was held, a statement that agreement could not be reached, and a request for a hearing before the Court to resolve the dispute. (Emphasis added.)
Rule 11 governs pretrial motion practice (for discovery Rule 9, as well as all other pretrial motions), and it simply provides for the moving party to furnish five days' prior notice to his adversaries of an intention to file a motion with a supporting legal memorandum. On the designated day for filing, if the adversary party seeks to oppose the motion, he has but to file his memorandum in opposition; if he chooses not to oppose, he need not file anything, which would then signal the Court to treat the motion as unopposed. With the foregoing procedural backdrop in mind, the following events transpired in this case on defendant's motion to inspect the subject premises:
On April 24, 1973, counsel for the defendant and the Assistant United States Attorney convened pursuant to Rule 9 for the purpose of pursuing the defendant's discovery rights under that Local Rule. While a great deal of progress was made at that meeting, and substantial materials were provided or agreed to be provided by the Government, several items could not be agreed to, one of which being the demand by this defendant for the right to enter upon premises 2119 North Philip Street for the purpose of inspecting the telephone located in that property as well as to determine that telephone's exact location and the telephone number. On May 2, 1973, the defendant filed six separate motions seeking a variety of relief (relief from prejudicial joinder, suppression of evidence, bill of particulars, disclosure of informants' identities, motion for transcripts and of notes of testimony, and his motion under Rule 9 in respect to unresolved discovery demands). None of these motions were filed in accordance with Local Rule of Criminal Procedure 11 and, accordingly, on May 10, 1973, the Court entered its Order denying all of the motions on that ground. Fifteen days later, on May 25, 1973, the Government (correctly anticipating that defendant would refile his motions in accordance with the requirements of Local Rule 11) filed its answers and response to the defendant's motions, including the motion seeking to visit premises 2119 North Philip Street. The Government had apparently recanted in its previous refusal to furnish information about the telephone and, in its answer at paragraphs 5 and 6, did disclose the location of the telephone as well as the telephone number. In respect to access to premises, it indicated that it had no control of the premises and that it suggested that defendant attempt to procure information as to who was in control of the premises so that access could be attempted and, if that did not succeed, ". . . bring the matter before the Court." (Emphasis added.)
Defendant contends that, though the Government's answer was filed, a copy was not served upon him. His letter to the Assistant United States Attorney of June 6, 1973,
discloses, however, that he was aware during the week of May 28, 1973, that the Government had indeed filed an answer with the Court. Presumably, therefore, sometime during that week he could have either asked the Assistant United States Attorney what the answer stated or he could have visited the Court and examined the answer that had been filed. Whether either of these things was done is unknown, but it apparently would have made no difference because the following week, on June 11, 1973, four days before this case was called for trial, the defendant refiled all of the motions that had been previously filed on May 2 and which had been denied by reason of lack of compliance with Rule 11. Rather than conform the motions to the events that had transpired between the original filing and the date they were refiled (June 11, 1973), counsel for the defendant apparently removed his office copies of the motions, xeroxed them, and simply refiled the May 2, 1973, motions on June 11, 1973. These motions were filed in accordance with Rule 11. However, because they had simply been copies of the former motions, they continued to be defective under discovery Rule 9 in that they did not request a hearing ...