Appeal from a judgment of the United States District Court for the Eastern District of New York, entered after a jury trial before Edward R. Neaher, Judge, convicting all the appellants of possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and convicting appellant Pesce of attempting to import heroin into the United States in violation of 21 U.S.C. §§ 952, 960. The principal claim on appeal is that Government involvement in the crime was so extensive as to violate due process. Affirmed.
Before Mansfield and Oakes, Circuit Judges, and Bartels, District Judge.*fn*
See 99 S. Ct. 1545, 1801.The principal issue raised by this appeal is whether the Government involved itself so extensively in the commission of the crimes charged against appellants that, despite the absence of any entrapment, the indictment should be dismissed on due process grounds. See Hampton v. United States, 425 U.S. 484, 491-95, 96 S. Ct. 1646, 48 L. Ed. 2d 113 (Powell, J., concurring), 495-500, 96 S. Ct. 1646 (Brennan, J., dissenting) (1976); United States v. Archer, 486 F.2d 670 (2d Cir. 1973). We hold that the Government's enforcement activity did not violate appellants' due process rights.
Alex Corcione, Michael Corcione and Vito Pesce appeal from judgments of the Eastern District of New York entered on July 12, 1978, after a jury trial before Judge Edward R. Neaher convicting them of possession of heroin on November 15, 1977, with intent to distribute, 21 U.S.C. § 841(a)(1). In addition Pesce was convicted of attempting to import heroin into the United States, 21 U.S.C. §§ 952, 960.*fn1 Reversal is sought on various grounds, including, in addition to the claim that the Government violated appellants' due process rights by becoming over-involved in the offenses, contentions that the jury was inadequately charged regarding use of prior convictions, that the court's modified Allen charge was improper, and that the court erroneously admitted into evidence a note written by appellant Pesce which had been seized in violation of his Fourth Amendment rights. Finding no merit in these contentions, we affirm.
The record, viewed most favorably to the Government, discloses that in July of 1977 one Louis Hartman agreed in New York with appellants that he would try to find for them a source in Thailand that would supply large quantities of heroin for which they were willing to pay $3,500 per kilogram delivered in Bangkok. After arrival in Thailand, Hartman, through one Preecha Sirorasa ("Preecha"), found a source who, unknown to Hartman or Preecha (and, of course, unknown to appellants) was a Drug Enforcement Administration ("DEA") informant. As a result of international telephone negotiations with appellants, Hartman agreed to deliver heroin to them in New York for $38,000 per kilogram. Preecha, using funds advanced by appellants, went to New York where he negotiated the planned heroin purchase, receiving $10,000 as a cash advance from Michael Corcione and agreeing with him that the code word for heroin would be "rubies." Upon receiving the $10,000 in Bangkok, Hartman paid $7,500 to the informant who bought 1.4 kilograms of 90% Pure heroin. Hartman discussed with the informant the method to be used to smuggle the heroin into the United States; the heroin was to be carried in a suitcase in which the informant would place Thai shirts and rice samples as a "smoke screen" to throw customs examiners off the trail. After discussions in New York with Michael and Alex Corcione, Preecha went to Bangkok where he described to Hartman the plan for delivery of the heroin by Hartman and the informant to appellants in New York. It was agreed that Hartman and the informant would fly on the same plane from Bangkok to New York, with the informant carrying the suitcase supposed to contain the heroin, that upon arrival the informant would take the suitcase to the Traveler's Motor Lodge, that Hartman would go to a different location from which he would call Alex or Pesce who would then pick up the heroin from the informer, and that Hartman's stepson, Tawidnai, would serve as interpreter. Pursuant to agreement by telephone Pesce wired $2,500 for Tawidnai's travel expenses to Hartman in Bangkok. Unknown to Hartman or appellants, the heroin was turned over in Bangkok by the informant to a DEA agent and brought by him to the United States in a suitcase identical to that which Hartman and the informant planned to use to smuggle the heroin into the United States for delivery to appellants.
On November 15, 1977, Hartman and his stepson arrived with the informant at Kennedy Airport after flying from Bangkok. The informant had a suitcase with a false compartment which was believed by Hartman and appellants to contain the heroin that had been purchased by the informant for Hartman in Thailand. At the baggage claim area of the airport, DEA agents secretly substituted for this suitcase the other identical suitcase with its false compartment containing soap powder plus .014 grams of the same heroin that had been purchased by the informant and brought over earlier by the DEA from Bangkok to the United States. When arrested in transit from the airport to his hotel, Hartman had in his possession an envelope bearing the name and telephone number of Alex Corcione, plus a hand-drawn map showing the route from Kennedy Airport to the Traveler's Motor Lodge near LaGuardia Airport. After agreeing to cooperate with the DEA, Hartman telephoned Pesce who advised Hartman that in one hour the Corciones would meet him in the cocktail lounge of the Holiday Inn near the Traveler's Motor Lodge.
Hartman and the informant had divided a dollar bill between them, each keeping one half. Approximately one hour after the phone call to Pesce, Hartman received a telephone call at the bar of the Holiday Inn. Hartman went outside, met Michael and Alex Corcione, handed his half of the dollar bill to Alex and had a conversation with him. The Corciones then drove to the Traveler's Motor Lodge and Michael met the informant, who still had the suitcase containing the soap powder and heroin in the secret compartment. Michael said "Louis Hartman" and showed his half of the dollar bill; the informant said "Preecha" and showed the other half of the dollar bill. Corcione then identified himself as Michael and explained that Alex and Pesce were waiting in the car.*fn2 Michael asked for and was shown the suitcase, and in response to Michael's question "Ruby?" the informant answered "two kilos." Michael told the informant that Hartman's stepson would pay him the following day. Michael left with the suitcase, placing it in the trunk of the waiting car. DEA agents followed the car and eventually the Corciones were arrested after a high speed chase. The suitcase with heroin and soap powder was seized from the trunk, and the half dollar bill earlier held by Hartman was still in Michael's possession.
After that arrest, at approximately 1:00 A.M., Hartman called Pesce again, informing him that Hartman had given "them" the "protocol." In response to Hartman's question, Pesce said that payment would be made within 24 hours. DEA agents then proceeded to a two-story, two-apartment house owned by the father of Pesce's stepbrother. Upon ringing the doorbell the agents were admitted by the stepbrother, who lived in the downstairs apartment. Pesce was on the landing outside the front door to his upstairs apartment, and was placed under arrest. There was no arrest warrant. After Pesce and the agents went into the kitchen of Pesce's apartment so that he could get dressed the agents spotted on the kitchen table a handwritten note which simply read "Holiday Bar Near Travelers." The note was seized and introduced into evidence at trial.
Appellants argue that the DEA was over-involved in the crime for which they were convicted, thus violating due process. Entrapment was not asserted as a defense below, and it is specifically rejected by appellants before this court, presumably because there is clear evidence of predisposition to commit the crime. Appellants, however, point to the facts that the Government informant not only bought and took delivery of the heroin in Bangkok but purchased the identical suitcases with the secret compartments and stuffed the heroin into one of the suitcases, a DEA agent transported that suitcase containing all of the heroin into the United States, the DEA refilled the secret compartment of that suitcase with the soap powder plus a small amount of the same heroin, the DEA switched the suitcases at Kennedy Airport, putting the suitcase containing a small amount of the heroin into the informant's possession, and the informant brought this suitcase through customs, turning it over later to appellants. Appellants argue that this "conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction . . . ." United States v. Russell, 411 U.S. 423, 431-32, 93 S. Ct. 1637, 1643, 36 L. Ed. 2d 366 (1973). We disagree.
Although it has been suggested by the Supreme Court and ourselves that Government involvement in a crime may become so extensive and outrageous in a given case that due process would prohibit conviction of the defendants even though they concededly were predisposed to commit the crime, see Hampton v. United States, 425 U.S. 484, 491-95, 96 S. Ct. 1646, 48 L. Ed. 2d 113 (Powell, J., concurring), 495-500, 96 S. Ct. 1646 (Brennan, J., dissenting) (1976); United States v. Russell, 411 U.S. 423, 431-32, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973); United States v. Archer, 486 F.2d 670 (2d Cir. 1973), this is not such a case. Government infiltration of and limited participation in drug-related criminal enterprises is "a recognized and permissible means of investigation" necessary to gather evidence of illegal conduct. United States v. Russell, supra, 411 U.S. at 432, 93 S. Ct. 1637. See also United States v. Archer, supra, 486 F.2d at 676-77.
In Russell, a Government agent provided an essential and scarce, but not illegal, chemical necessary for the manufacture of methamphetamine to a group already engaged in such illegal manufacturing. The Supreme Court affirmed the conviction for illegal manufacturing, holding that since there was predisposition there was no entrapment and that the Government involvement was not so extensive as to offend due process. In Hampton, there was even more Government involvement. The defendant was convicted of selling to a Government agent heroin which had been supplied by a Government informant to the defendant for sale to the agent. A majority of the Supreme Court again upheld the conviction since there was predisposition. Of the majority three justices took the position that Government over-involvement could never require reversal of a conviction and two concluded that there was not such over-involvement on the facts of that case. See Hampton v. United States, supra, 425 U.S. at 488-90, 96 S. Ct. 1646, 48 L. Ed. 2d 113 (opinion of Rehnquist, J.), 491-95, 96 S. Ct. 1646 (opinion of Powell, J.).
In the present case, the crimes for which appellants were convicted were initiated by them, not the Government. Before the Government ever became involved, appellants arranged with Hartman to buy large quantities of heroin. It was Hartman and Preecha, in turn, who sought out the person who fortuitously turned out to be an informant and enlisted his aid to purchase the heroin for them and appellants. It was Michael Corcione, not the Government, who advanced the money to Hartman specifically for the purchase of the heroin, without any urging or instigation by any Government representative to get into the heroin business. And it was Hartman and Preecha, according to Preecha's testimony, who devised the method to be used for smuggling the heroin into the United States, including the use of a suitcase with bags of rice as a decoy.
Although the Government, once the informer had been enlisted in appellants' arrangement for purchase, smuggling and possession of the heroin, became extensively involved, its role was limited to facilitating what the appellants had started and were executing. The informant, for instance, merely followed Hartman's and Preecha's instructions, departing from them only to the extent necessary to prevent appellants from obtaining as much heroin as they had anticipated. The transportation of the heroin by the DEA agent and substitution of a much smaller amount for that which appellants believed they were receiving likewise simply carried out the blueprint devised by Hartman and Preecha but did so in a manner designed to minimize the risk that appellants would come into possession of the full amount of the heroin they expected to receive. In short, the Government's ...