On Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Criminal No. 85-150.
Sloviter, Greenberg and Garth, Circuit Judges.
David Thomson appeals to this court from the judgment of conviction and sentence entered on December 28, 1988, in the district court following his conviction for two narcotics offenses. This proceeding was originated when a multi-count indictment was returned on June 28, 1985, against Thomson, George Kost and 19 other defendants in the Western District of Pennsylvania. Thomson was charged in two counts of the indictment. In count one he, along with 14 of the other defendants, including Kost, was charged with participation in a conspiracy to possess with intent to distribute and to distribute cocaine from August 1981 until May 1984 in violation of 21 U.S.C. § 846. In count eleven he was charged with aiding and abetting the possession of cocaine with intent to distribute on May 3, 1982, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Kost was also charged in five other counts of the multi-count indictment and, in addition, was charged in a separate indictment, with conducting a continuing criminal enterprise from the summer of 1981 until May 1985, contrary to 21 U.S.C. § 848(a)(1).*fn1
Thomson and Kost were not immediately apprehended following the indictment. However, certain of the other defendants were tried and convicted in 1985 and others entered pleas of guilty. Thomson was arrested in Manheim Township, Pennsylvania, on an unrelated state burglary charge on April 25, 1987, and was held in state custody until early April 1988. On April 7, 1988, the district court issued a writ of habeas corpus and prosequendum to the warden of the Lancaster County jail where Thomson was being held and Thomson then passed to federal custody. Kost also became available for trial at about the same time. Thomson and Kost pleaded not guilty to all charges.
Thomson served and filed numerous pretrial motions, including a motion for severance which, after oral argument, was denied on May 18, 1988. Subsequently, Thomson and Kost were jointly tried before a jury and, on July 6, 1988, Thomson was found guilty on both counts against him. Kost was convicted on the separate indictment of conducting a continuing criminal enterprise and of four of the six counts in which he was charged in the multi-count indictment, the conspiracy count and three counts of possession of cocaine with intent to distribute, including count eleven in which Thomson was also charged.
On December 28, 1988, Thomson was sentenced to a term of 15 years on the conspiracy count, and to a consecutive term of five years on count eleven for aiding and abetting the possession of cocaine with intent to distribute. In addition, a term of 15 years' special parole was imposed on him. Thomson appeals, contending that he did not get a fair trial because the court denied his pretrial motion to sever his trial from Kost's and Kost's attorney in his closing argument admitted that Kost was guilty of conspiracy and implicated Thomson in the conspiracy. In addition, Thomson contends that the evidence was insufficient to prove him guilty beyond a reasonable doubt on count eleven. Finally, Thomson urges that he was denied effective assistance of counsel because his trial counsel refused, notwithstanding Thomson's request that he do so, to file a motion to dismiss the indictment against him on the ground that he was denied a speedy trial.
The facts of this case were established at the trial by numerous witnesses, all called by the government, some of whom had themselves been charged in the indictment. The evidence clearly established that there was a large scale conspiracy, including Thomson and Kost, to possess and distribute cocaine commencing around October 1981 and lasting until May 1984, a few months after a disgruntled participant, James McAuliffe, began acting as an informant for the Federal Bureau of Investigation. Thomson's involvement in the conspiracy centered on his role as Kost's bodyguard and may be traced to the late 1970's, when he was an occasional cocaine customer of Ernest Rockwell, a wholesale cocaine dealer in the Pittsburgh area, who was also a defendant in the multi-count indictment and who testified for the government. At that time, Rockwell was purchasing cocaine in kilo lots from Richard Dunlap, who maintained drug connections with dealers in Florida. Kost was one of Rockwell's regular customers, purchasing cocaine in increasingly larger amounts.
In 1980 Rockwell grew dissatisfied with Dunlap and moved to Florida to establish new sources for cocaine. There he formed an association with Lauren Lee, from whom he purchased individual kilos of cocaine for distribution in the Pittsburgh area. In the course of his dealings with Lee, Rockwell became acquainted with Hilmer Sandini, who later became a conspirator in the drug ring and was named in the multi-count indictment.
Rockwell's relationship with Lee terminated in the summer of 1981. Around that time, Rockwell and Sandini formed the partnership which became the hub of the conspiracy. Rockwell testified that he and Sandini agreed that Sandini would obtain large quantities of cocaine in Florida for transportation by courier to Rockwell in Pittsburgh. Rockwell then would sell the cocaine to dealers in the Pittsburgh area with profits to be split equally between Rockwell and Sandini. After setting up this operation with Sandini, the volume of cocaine Rockwell distributed in Pittsburgh increased dramatically. Kost became Rockwell's largest purchaser, as described by Rockwell, his "number one man," and as such was entitled to a volume discount.
In 1981 or 1982, Thomson questioned Rockwell about Kost because Thomson was working for persons who claimed that Kost owed them approximately $30,000. Thomson intended to collect this debt by kidnapping Kost or his daughter. Rockwell, however, was anxious to have a confrontation avoided so he introduced Thomson to Kost, who convinced Thomson that these alleged creditors were merely competitors in the cocaine business endeavoring to usurp his clientele. At the conclusion of this meeting, Thomson agreed to work for Kost as a personal bodyguard. Thereafter, Thomson obtained cocaine from both Rockwell and Kost in quantities ranging from 4 to 10 ounces per month.
Thomson's former girlfriend, Sharon Spuganich, testified that Thomson normally carried guns when he worked for Kost and that she observed a sawed-off shotgun and two handguns in Thomson's apartment. She and other witnesses testified that Thomson collected money from cocaine transactions for Kost. For example, Ronald Urban, one of Kost's distributors and a defendant in the multi-count indictment, testified that Thomson handcuffed James McAuliffe to the steering wheel of a car after he sold a quantity of Kost's cocaine without Kost's knowledge, an unusual but effective collection procedure which caused McAuliffe to pay what he owed to Kost. Overall, the evidence of Thomson's participation in the conspiracy was overwhelming and, indeed, he does not challenge the sufficiency of the evidence on that count.
The testimony surrounding the charge in count eleven, that Thomson aided and abetted the possession of cocaine with intent to distribute on or about May 3, 1982, in the Western District of Pennsylvania, was somewhat inconsistent. The evidence established that around May 3, 1982, Kost, Thomson, and Gary Vowinkle flew to Florida on a commercial airline, where they were met by Hilmer Sandini and Danny Mitrione, an undercover FBI agent who became criminally involved in the conspiracy and was sentenced to prison on other charges. Mitrione testified that the purpose of the trip was for Vowinkle and Kost to purchase one kilo of cocaine for transportation by private plane to Cedar Rapids, Iowa, for sale to one of Vowinkle's customers. If the Iowa customers were satisfied, then Kost, Thomson and Vowinkle hoped to return to Florida with sufficient funds to purchase more cocaine. Thomson was present as Kost's bodyguard.
Mitrione testified that immediately after Kost, Vowinkle and Thomson arrived from Pittsburgh, he and Sandini drove with them to a restaurant, where they discussed the details of the drug transaction. During that meeting, Mitrione and Kost met privately in the restaurant parking lot, where Kost gave Mitrione $52,000 in cash for one kilo. Mitrione testified that Rockwell arrived in Florida the following day, May 4, 1982, and that he and Sandini picked him up at the airport. They then purchased a kilo of cocaine from one of Sandini's sources in South Miami, a woman named Gloria. Sandini then provided Kost, Vowinkle and Thomson with his private plane to fly the kilo to Iowa. Edward Merchant, Sandini's personal pilot, testified that he flew Kost, Thomson and Vowinkle to Cedar Rapids, Iowa, where they were delayed for several days. He then flew them directly to Pittsburgh and returned, alone, to Florida.
Rockwell testified that the purpose of the trip on May 3, 1982, was to purchase 6-7 kilos of cocaine which, following the Iowa sale, would be used to finance the purchase of more cocaine in Florida for transportation to Pittsburgh for distribution to Rockwell's and Kost's respective customers. Rockwell testified that he was present with Danny Mitrione and Hilmer Sandini when Kost, Vowinkle and Thomson arrived in Florida and that, following negotiations concerning the price, Sandini purchased approximately 4-6 kilos of cocaine from a dealer named Alex. He said that Thomson was present during the negotiations but did not contribute to them. Rockwell further testified that Kost, Vowinkle and Thomson ultimately returned to Florida, picked up an unspecified amount of cocaine that Sandini and Rockwell were holding for them, and returned with it to Pittsburgh. It thus appeared that there was some confusion regarding when Rockwell arrived in Florida and where Kost, Vowinkle and Thomson went after their trip to Iowa.
Rockwell's testimony was, however, partially corroborated by that of Ronald Urban and Sharon Spuganich. Urban testified that he picked up Kost, Vowinkle and Thomson at the airport in Pittsburgh in the spring of 1982. Urban believed that they were coming directly from Florida. Kost informed Urban that he had a few kilos of cocaine in his duffel bag but Urban admitted that he did not personally see any cocaine. Urban dropped the three off at a motel and then returned a day or so later and purchased some cocaine from them. Spuganich testified that she met Kost and Thomson at Kost's house in the Pittsburgh area after their return from Iowa, and that Thomson had a large quantity of cocaine with him.
In the spring of 1984, Rockwell's partnership with Sandini unraveled because Sandini was drying up as a cocaine source. Sandini was arrested in April 1984 and Rockwell was arrested on a gun charge in the late summer. Around that same time, after Rockwell's sentencing on the gun charge, ...