On Appeal from the United States District Court for the District of New Jersey. On Appeal from the United States District Court for the District of New Jersey.
Seitz, Chief Judge, Garth, Circuit Judge, and Diamond, District Judge.*fn*
Madeline Sara Wasserman and Shahbaz Shane Zarintash appeal from their conviction for conspiracy to import, possess, and distribute hashish, and possession of hashish.*fn1 Wasserman and Zarintash raise a number of issues, only some of which merit discussion. Zarintash contends the district court abused its discretion in refusing to reread a portion of the testimony to the jury. We agree with Zarintash, and we reverse his conviction and remand for a new trial.
Wasserman claims that the court impermissibly admitted evidence (including $32,960 in cash) seized from her person and her apartment after her arrest because it was "poisonous fruit" of an illegall search of her apartment. We do not agree that the evidence was inadmissible "poisonous fruit."
Wasserman also contends that the admission into evidence of the $32,960 in cash was irrelevant and prejudicial, thus impermissibly admitted. Zarintash joins her in this contention. We agree that the evidence was wrongly admitted, but find the error to be harmless.
We therefore reverse the conviction of Zarintash and affirm the conviction of Wasserman.
The evidence adduced at trial may be briefly summarized. The Governmenet alleged a group of conspirators met several times in the Westbury and Alrae hotels in New York City during the week of October 3-October 7, 1981 to plan the importation of a shipment of hashish. Among those at the meetings was Wayne McDonald, who testified for the Government. McDonald identified Zarintash as the "John or Tito" who had been present at the meetings. He also identified Wasserman as the "Sarah" who was there with Les Riley. The group agreed that they would obtain the hashish from the "mother ship" (on which it was being transported from Lebanon) by transferring it to smaller boats when the mother ship was off the coast of New Jersey. Wasserman was to be in charge of the delivery ashore and transportation elsewhere (in which she would be assisted by William Beaty), and she was to receive ten percent of the cargo (which the DEA later estimated to be worth $36 million). "John" was to receive one-sixth of the cargo. Riley and "John" agreed to pay McDonald $200,000 for his part in the operation.
Beaty asked John Clark to help with the plan; Clark enlisted Robert Soleau's aid. Soleau would provide two boats: the "Falcon" to transport the cargo from the mother ship to shore and the "Tanqueray" to transport people separately.
On the night of October 9, 1981, the two boats set out for the mother ship. The hashish was loaded aboard the Falcon, but it sank before reaching shore. The conspirators aboard the Tanqueray returned to shore. McDonald, Wasserman, "John," and other met several times in Manhattan, at which time they discussed salvaging the cargo. Wasserman and Michael Abell were to arrange for divers to bring the cargo up. Soleau and others went to the spot where the Falcon sank, but the diving operation was twice interrupted, once by bales of hashish washing up on shore, and once by Coast Guard helicopter surveillance. The Government recovered most of the cargo and, through cooperating witnesses (including Soleau and McDonald), identified Wasserman, Zarintash, and others as conspirators.*fn2 Wasserman was arrested on February 17, 1983; the Government then alleged she was the "Jane Doe" a/k/a "Sarah" named in the February 23 indictment. Zarintash was with her at the time of her arrest; he was arrested later that evening.
At trial, which began March 30, 1983, the government presented extensive testimonial evidence against Wasserman, principally that of McDonald and Abell. McDonald's testimony provided the major part of the evidence against Zarintash.
Zarintash contends that the district court abused its discretion in refusing to read the testimony of Kevin Keating to the jury. We agree.
Kevin Keating testified, on behalf of Zarintash, that he had been with Zarintash between (about) October 1 and October 6, 1981. Between (about) October 1 and October 4, the two were at Shrub Oak, New York, about 45 miles from Manhattan, working on a screenplay. According to Keating, the two traveled to New York City on the evening of the 4th to attend a birthday party for Zarintash in the Knickerbocker Restaurant at around 8 p.m. Keating left at about 11 p.m.; Zarintash had been there the entire time. Keating testified that he next saw Zarintash late in the morning of the next day (Oct. 5), when they met in the city to work on the screenplay. They were together in New York until the evening, when they drove back together to Shrub Oak. Zarintash was there until the evening of the 7th, when he drove back to New York City.
Hart Perry testified that he saw Zarintash in Shrub Oak on October 3 and 4, at the Knickerbocker party until 2:30 a.m., on October 6 in New York, and on the morning of October 7, when he drove Zarintash from Shrub Oak to Manhattan. Stephen Jones confirmed that Zarintash was at the birthday party on October 4. Michael Abell testified that he did not recognize Zarintash as being present at the two meetings he had attended for some time at which McDonald was also present.
In contrast to this testimony, Wayne McDonald testified for the Government that Zarintash was the "John or Tito" who was present at the conspiracy meetings at the Westbury and Alrae hotels in New York City between October 3 or 4, and October 7, 1981, and at salvage meetings later that month.
Keating's testimony contradicts McDonald's testimony in two ways. First, it provides Zarintash with an alibi for meetings that took place at the Westbury Hotel on October 3 or 4, on October 5 at the Alrae Hotel in the late morning through night, and on October 7 at the Alrae until the late evening.*fn3 Second, by providing an alibi, it casts doubt on McDonald's identification of Zarintash as the ...