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United States v. Moten

decided: September 6, 1977.

UNITED STATES OF AMERICA, APPELLEE,
v.
FRANK MOTEN, ANGEL RODRIGUEZ, WILLIAM HIGHTOWER, SIDNEY FOSTER, JOSEPH SAMPSON, LOIS SAMPSON, YVONNE ALVAREZ SCHENNAULT, DON WILSON, JAMES LAWS, TOMMY DAVIS, JOHN MORRIS, LAWRENCE MITCHELL, RAPHAEL BONILLA AND CHARLES COWPERS, DEFENDANTS-APPELLANTS



Appeal from the United States District Court for the Southern District of New York, Hon. Richard Owen, Judge, from judgments of conviction entered on jury verdicts of guilty for various violations of the federal narcotics laws. Affirmed.

Lumbard, Mulligan and Gurfein, Circuit Judges.

Author: Mulligan

MULLIGAN, Circuit Judge:

This is an appeal by 13 defendants*fn1 from judgments of conviction entered on January 13, 21 and 31, 1977 in the United States District Court for the Southern District of New York after a 14-week trial before Hon. Richard Owen, United States District Judge and a jury. The indictment was filed on April 5, 1976 charging the 13 appellants and 20 other defendants with violations of the federal narcotics laws.

Count One charged all 33 defendants with conspiracy to violate the narcotics laws from January 1, 1968 until the filing of the indictment in violation of 21 U.S.C. §§ 173, 174 and 846. Counts Two and Three charged Juan Antonio Alvarez and Frank Moten with engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848. (Alvarez is a fugitive who did not appear for trial, forfeiting a $100,000 surety bond and a $400,000 personal recognizance bond secured by Florida property.) Counts Four through Forty charged 30 defendants with substantive narcotics crimes.

Trial commenced on August 10, 1976 with respect to 22 defendants.*fn2 On November 12, 1976, after six and one-half days of deliberation, the jury returned verdicts of guilty against the 13 appellants. On January 13 and 21, 1977, Judge Owen imposed sentences, all of which were concurrent unless otherwise noted, as indicated in the margin.*fn3

I THE FACTS.

The evidence showed a massive narcotics organization which distributed hundreds of kilos of heroin and cocaine throughout major centers in New York, Miami, Washington, D.C. and Chicago from 1968 to 1975. The core group of wholesale middlemen purchased cocaine and heroin in bulk from importers or other suppliers. The middlemen in turn sold the drugs to the distributors who eventually sold them to their customers. The roles of the appellants and other defendants are best understood by an organizational chart prepared by the Government outlining the three-level structure of the conspiracy. It is reproduced in Appendix A of this opinion.

The Government's evidence revealed that Juan Antonio Alvarez and Angel Rodriguez, who lived in Miami, sold about 80 kilograms of cocaine annually between 1968 and 1974. The principal suppliers of heroin were Sebastian Intersimone, John Capra, Leoluca Guarino and Steven Dellacava. The middlemen or core group consisted of Jack Brown aided by Frank Moten and Brown's son-in-law, Michael Parker. Brown was the key figure in the conspiracy. He had a long criminal record dating back to 1944, graduating from shoplifting to narcotics dealing and culminating in a conviction in Washington, D.C. in 1960 for violation of the federal narcotics laws. He was incarcerated in Atlanta Penitentiary where he met Guarino who was later to become a major source of heroin for the conspiracy. Upon his release from Atlanta in 1964, Brown returned to New York and shortly thereafter was buying heroin and cocaine on a wholesale basis. He sold through organized channels of distribution to customers in New York as well as to others who came regularly from Chicago and Washington, D.C. to make purchases. From 1968 through 1972 Brown lived at various New York apartments and used others to "stash" narcotics. He was indicted in the Southern District of New York in April 1973 and reading about his indictment in the press, he proceeded to go "underground" in the New York area. In November 1973, he moved to Miami but continued to purchase and sell cocaine, utilizing his son-in-law Parker to make deliveries. In December 1974, he left Florida seeking to avoid detection but on April 6, 1974, fearful that his life was in danger, Brown surrendered to the Government, agreeing to cooperate in exchange for protection.

Brown was the principal Government witness at this trial. Some 35 other witnesses testified for the Government including five other conspirators: Michael Parker, Luis Sureda, Ann Reynolds, Marion Ladd and Estelle Tompkins. Parker, who was Brown's principal lieutenant and confidant, testified that he had either delivered drugs to or had observed drug transactions by almost all of the defendants on trial.*fn4 The Government also produced more than 200 documentary exhibits including travel receipts, telephone toll records, photographs, letters and papers seized from the defendants. It is beyond cavil that hundreds of kilos of drugs worth several million dollars passed through the conspirators.

II SINGLE OR MULTIPLE CONSPIRACIES.

All of the appellants challenge the propriety of having been tried together, either because they urge that separate conspiracies were proven at trial as opposed to the single conspiracy charged in the indictment, or because of the alleged unfairness inherent in a "mass trial" such as the one under review.

The appellants argue that the Government proved multiple conspiracies between Brown and various defendants based upon their geographical locations: New York, Miami, Chicago and Washington, D.C. They further allege a separation by virtue of the fact that two drugs, cocaine and heroin, were involved in the sales. They all urge in substance that they were prejudiced by the "spill-over" of cumulative evidence with respect to each of the numerous defendants. We do not find any abuse of discretion in the denial of severance sought by appellants here. United States v. Projansky, 465 F.2d 123, 138 (2d Cir.), cert. denied, 409 U.S. 1006, 34 L. Ed. 2d 299, 93 S. Ct. 432, 93 S. Ct. 433, 93 S. Ct. 443, 93 S. Ct. 444 (1972).

The issue as to whether a large continuing drug operation such as that disclosed by the evidence here constitutes a single conspiracy or multiple conspiracies among the participants is hardly novel in this circuit. The business of narcotics trafficking falls of necessity into the familiar pattern of the so-called chain conspiracy. It generally involves, as it did here, a group of importers or suppliers selling on a regular basis to a core of well-financed middlemen who in turn sell to another group of distributors who eventually sell at retail to the small pusher or addict. The profits are enormous and only exceeded by the ultimate human misery, degradation and crime spawned by the process. As we indicated in United States v. Bynum, 485 F.2d 490 (2d Cir. 1973), vacated on other grounds, 417 U.S. 903, 94 S. Ct. 2598, 41 L. Ed. 2d 209 (1974), the suppliers know that the business does not end with their sale to the middlemen, and the distributors know from the vast amounts purchased and its ready availability that their seller has a source of supply. "The fact that not all of the ...


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