Before LUMBARD, Chief Judge, and WATERMAN and HAYS, Circuit Judges.
Winston Massiah, Mitchell Anfield, Leonard Royal Aiken and Icky Thorn appeal from their convictions, after an eleven-day trial before a jury in the District Court for the Southern District of New York, for conspiracy to import cocaine into the United States in violation of 21 U.S.C.A. §§ 173 and 174. Massiah also appeals from his conviction on three related charges: unlawful possession of cocaine on May 6, 1958 on the S.S. Santa Maria, a United States vessel engaged on a foreign voyage, in violation of 21 U.S.C.A. § 184a, unlawful concealment of the same cocaine in violation of 21 U.S.C.A. §§ 173 and 174, and possession, on the same occasion, of cocaine not having come from an original stamped package, in violation of 26 U.S.C. §§ 4701, 4703, 4704(a), 4771(a) and 7237(a).*fn1
These appeals present two major questions. The first is whether it was proper to receive in evidence testimony by a federal officer concerning conversations of Massiah and Anfield which each held separately with a co-defendant, Jesse Colson, in Colson's automobile. With Colson's cooperation, a portable transmitter had been secreted in the automobile. Both Massiah and Anfield claim that it was unlawful thus to eavesdrop on the conversations, and Massiah further claims that the procedure was illegal because he was already indicted (under an indictment returned prior to that on which he was tried, but which was concerned with the same subject matter) and had retained counsel, and therefore could not legally be approached by persons acting on behalf of the government in the absence of his counsel. The second major question is whether the trial judge inadequately charged concerning the necessity, under 21 U.S.C.A. §§ 173 and 174, that the conspirators had had knowledge of illegal importation.
Judge WATERMAN and I are in agreement that the eavesdrop evidence was admissible against both Massiah and Anfield, while Judge HAYS considers it inadmissible against Massiah. Thus we affirm Massiah's conviction on the substantive counts, with Judge HAYS dissenting. Since Judge WATERMAN agrees with Judge HAYS' view, stated in his separate opinion, that the charge on the conspiracy counts was inadequate, the convictions of Anfield, Aiken and Thorn and Massiah's conspiracy conviction are reversed and remanded for a new trial. I dissent from this disposition of the conspiracy counts for the reasons stated in part II of this opinion and vote to affirm all the convictions.
We briefly summarize the evidence which was given by several participants in the conspiracy and those who dealt with the conspirators.
Massiah, Colson and Anfield were seamen on ships of the Grace Line, and commencing in 1956 they obtained cocaine from one Rene Huasaff in Varparaiso, Chile, took it aboard a Grace Line ship to the United States and caused it to be brought ashore by longshoremen when the ships had docked in the Hudson River at New York. Aiken and Thorn purchased large quantities of the cocaine from the importer-defendants and distributed it in New York. There was evidence of at least twelve importations and seven purchases between 1956 and 1959.
The importer-defendants would often arrange to have a longshoreman pick up the cocaine on the vessel, take it ashore, and later meet them at an appointed rendezvous. Longshoreman James Barber testified that he had thus assisted Massiah and Colson after their arrival at New York on a number of occasions in 1956. Massiah's landlady, Elita Lloyd, testified that at about this time he had told her he was dealing in "coke." In 1958 Colson arranged to have a fellow seaman, Paul King, bring in "paint solids" which turned out to be cocaine. The appellant Thorn waited with Colson while King went back on the ship and returned with the "paint solids" which Colson then told him were narcotics.
In April 1958 customs agents were informed by Francisco Torres, a seaman who testified that he had bought cocaine from Jesse Colson on several occasions in 1957 and had been offered cocaine by Massiah, that a shipment of cocaine was due to arrive in New York on the S.S. Santa Maria on May 6 or 7. Customs agents boarded the ship when it docked and found in the aft peak five packages containing over three and onehalf pounds of cocaine. In Massiah's locker Agent Cozzi found tape exactly similar to that with which the packages were wrapped and a textile technologist testified that the torn end of the roll found in Massiah's locker matched the end of the tape with which the cocaine had been wrapped.
After Massiah's arrest, Colson telephoned Chile and arranged to have two Chilean women deliver cocaine to his home in the Bronx. There were two shipments and the bulk of both was sold to Aiken. Thorn also purchased some of this cocaine.
I. Massiah's Conviction on the Substantive Counts - The Eavesdropping Incident
Three weeks after his arrest on the Santa Maria, Massiah was indicted on May 28, 1958 and charged with violation of 21 U.S.C.A. § 184a for possessing three pounds eight ounces of cocaine on board a United States vessel. On July 20, 1959, Massiah was again indicted together with Jesse Colson and one Rene Huasaff on a charge of conspiracy to violate the narcotic laws in violation of 21 U.S.C.A. §§ 174 and 184a. Colson was thereupon arrested and a few days later he decided to cooperate with the government.
At 9:30 on the evening of November 19, 1959, Massiah got into Closon's Chrysler automobile which was then parked on West 146 Street between Seventh and Eighth Avenues. Prior to Massiah's meeting with Colson, Agent Murphy with Colson's consent had placed under the front seat of Colson's car a Schmidt portable transmitter which enabled him to hear the conversation through earphones while seated in another car.
Judge Wright, overruling numerous objections to the admission of the conversation, limited Agent Murphy's testimony to what Massiah said and excluded Colson's part in the conversation. The judge also instructed the jury to consider the evidence only as to Massiah. Agent Murphy testified that in the course of the conversation Massiah told Colson that in late April 1958, while at the home of Rene Huasaff, in Valparaiso, Chile, he wrote a letter to New York and stated the amount of cocaine he was bringing in; he had the cocaine in a suitcase in his room aboard ship for twenty-two days and, when he noticed two days out of New York that the cocaine was evaporating he got the roll of tape and attempted to make it airtight to prevent further wastage. He said it was this tape which got him into trouble. Massiah also told Colson that upon arrival he met a longshoreman and motioned him through the passageway to show him where the cocaine was, but then noticed two men following him and told the longshoreman to come back later. Massiah also told Colson that he knew that information had been given the authorities by Frank Torres and also by a woman named May with whom he had had some dealings.
The indictment on which the appellants were tried was filed on March 3, 1961. In addition to Massiah, Colson and Huasaff, it named the appellants Anfield, Thorn and Aiken and seven others, and it listed fourteen co-conspirators. Obviously the Schmidt transmitter evidence was part of a continuing investigation which bore sufficient fruit to result in the broader charges against many more defendants. As the trial judge permitted the jury to hear only limited parts of this evidence, we cannot know in what other ways it may have assisted the government investigation.
Although Colson had pleaded guilty to several counts of the indictment, he did not testify against the other defendants at this trial.*fn2 The defendants called no witnesses and none of them took the stand. There was ample evidence to support the convictions of all four appellants.
Massiah's counsel at trial made four ojections to Agent Murphy's testimony, but of these he pressed only one on appeal, that use of the hidden device constituted unlawful eavesdropping. To support our rejection of this claim, we need do no more than refer to the discussion of a similar contention in our recent decision in United States v. Kabot, 295 F.2d ...