Appeals from judgments entered in the United States District Court for the Eastern District of New York, after a jury trial before Eugene Nickerson, Judge, convicting appellants of conspiracy to distribute heroin, in violation of 21 U.S.C. § 846. The Court of Appeals held that the district court's failure to adhere to Fed. R. Crim. P. 30 resulted in no prejudice, that the district court did not abuse its discretion in denying motions for severance, that the admission of certain similar act evidence was harmless error, that the government breached no obligation assumed in an earlier plea bargain, and that the sealing of the indictment was not prejudicial. Affirmed.
Before Oakes, Gurfein and Meskill, Circuit Judges.
Ronald Lyles, Jesse Johnson, Benjamin Dunham and Carlos Holder were convicted, after a joint jury trial in the United States District Court for the Eastern District of New York, Eugene Nickerson, Judge, of conspiring to distribute heroin in violation of 21 U.S.C. § 846.*fn1 Although the four appeals raise a variety of legal issues, we hold that nothing in the record before us warrants reversal. The judgments of conviction are hereby affirmed.
Appellants do not challenge the sufficiency of the evidence, which tended to prove the following. In 1972 Warren Fesperman was engaged in the business of selling quinine to various narcotics dealers for use in "cutting" pure heroin. Among his New York purchasers was Jesse Johnson who, in the course of their dealings, asked Fesperman if he knew of any new sources of heroin. Fesperman replied that he would attempt to locate a connection for Johnson. He was as good as his word.
Returning home to North Carolina, Fesperman learned that Carlos Holder, of Yuma, Arizona, could supply large quantities of heroin. In late 1972, Fesperman flew to Arizona to meet Holder, who informed Fesperman that he could supply heroin for $35,000 per kilogram. Fesperman returned to New York with a sample of Holder's heroin and delivered it to Johnson, who promised to get in touch with Fesperman after Ronald Lyles, Johnson's partner, had examined it. The sample was apparently satisfactory, for shortly thereafter Johnson met with Fesperman and gave him $38,000 to purchase a kilogram of heroin from Holder; the extra $3,000 was Fesperman's commission. Fesperman again flew to Arizona to meet Holder, and the two then travelled to Mexico where Holder introduced Fesperman to "Luis," his source of supply. Subsequently, Holder gave Fesperman a kilogram of heroin in exchange for $35,000. Fesperman delivered the heroin to Johnson at a New York City motel.
In October, 1972, Johnson again gave Fesperman $38,000 and told him to purchase another kilogram of heroin from Holder. After making this purchase, Fesperman returned to North Carolina and placed the heroin inside the inner tube of the spare tire in his automobile. At Johnson's direction he drove the car to Benjamin Dunham's gas station in Brooklyn, New York. Dunham removed the heroin from the tire and kept it in his storeroom until it was picked up by Johnson. After this particular transaction, Johnson introduced Fesperman to his partner, Lyles, who handed Fesperman $6,000 in cash, as an additional commission, saying that he and Johnson were pleased with the quality of the heroin being delivered.
In November, 1972, Holder flew to North Carolina with a kilogram of heroin. Holder and Fesperman then delivered the heroin to Lyles at his home in Brooklyn. Lyles again gave Fesperman a $6,000 commission in cash.
Approximately twenty-five such sales took place between late 1972, when Fesperman arranged the first purchase for Johnson, and July, 1974, when Fesperman was arrested for selling two ounces of heroin to an undercover agent. Although various couriers working for Holder or for Johnson and Lyles often participated in the actual transportation of the drugs, the transactions generally followed one of the patterns sketched above. One of the couriers involved was Annco Holder, appellant Holder's wife.
After his arrest, Fesperman agreed to become an undercover informant for the Drug Enforcement Administration. Beginning in July of 1975, Fesperman recontacted Lyles and the two Holders. Tape recordings made during Fesperman's meetings and telephone conversations with these three former co-conspirators indicate that they retained an active interest in the illegal drug business. These tapes figure prominently in the appeals before us, as they did in the trial below.
II. Rule 30 Claim: Lyles.
Appellant Lyles attacks his conviction on only one ground. Prior to the summations, the district judge discussed with counsel the charge he intended to deliver to the jury. After the summations were completed, however, and after further discussions with the attorneys, the court delivered a charge somewhat different from the one he had previously proposed. Lyles claims that this was reversible error.
Fed.R.Crim.P. 30*fn2 provides that the trial court shall inform counsel of its proposed action upon submitted requests for instructions before counsel make their closing arguments. Such a procedure permits counsel to conform their arguments to the law as it will thereafter be presented by the judge to the jury. United States v. Tourine, 428 F.2d 865, 869 (2d Cir. 1970), Cert. denied, 400 U.S. 1020, 91 S. Ct. 581, 27 L. Ed. 2d 631 (1971); United States v. Clay, 495 F.2d 700, 707 (7th Cir.), Cert. denied, 419 U.S. 937, 95 S. Ct. 207, 42 L. Ed. 2d 164 (1974); 8A Moore's Federal Practice P 30.03(2). Clearly this purpose is frustrated if the judge, after informing counsel of his proposed charge, then changes the charge after the summations are completed. But it is settled law in this Circuit that reversal is appropriate only when a defendant can demonstrate that a Rule 30 lapse has resulted in prejudice. United States v. Conlin, 551 F.2d 534, 539 (2d Cir.), Cert. denied, 434 U.S. 831, 98 S. Ct. 114, 54 L. Ed. 2d 91 (1977); United States v. Fernandez, 456 F.2d 638, 644 (2d Cir. 1972). See Hamling v. United States, 418 U.S. 87, 134-35, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974) (noting the soundness of such an approach to Rule 30). Applying this test to the record before us, we conclude that Lyles was not prejudiced by the district judge's belated revision of the charge and that Lyles' conviction must stand.
The instruction at issue, requested by Lyles' co-defendant Carlos Holder, was at first accepted by the district court but then omitted from the charge delivered.*fn3 It concerned the purposes for which the jury might consider the taped evidence of various conversations between Fesperman and several of the alleged conspirators: Lyles, Carlos Holder, and Annco Holder. The taped conversations were held in 1975 after the conspiracy charged in the indictment had ended. In the government's view, the conversations revealed that in 1975 Lyles and Holder were trying to arrange drug transactions along the same lines as those successfully completed in 1972-74. Holder's counsel requested an instruction stressing that the tapes, as similar act evidence, could be considered only as bearing on a defendant's state of mind in doing the act charged, and that before making such a state of mind determination the jury would have to find beyond a reasonable doubt, on the basis of Other evidence, that the defendant had in fact done the act charged.*fn4 The charge actually delivered stated instead that the defendants were not on trial for any act not alleged in the indictment, that similar acts were not admissible to prove character, but that such acts could be considered as evidence of the state of mind with which a defendant did the act charged or as evidence of a common plan.*fn5
Although Lyles maintains that the judge would have been within his discretion had he more explicitly limited the jury's consideration of the tapes by delivering the proposed instruction, and that he should have done so, Lyles does not now contend that the less restrictive instruction actually presented was erroneous.*fn6 Instead, he argues that the court prejudiced his defense by permitting his attorney to rely during summation on the court's unfilfulled indications regarding its intended jury charge. Lyles asserts that, had accurate information regarding the charge been available, his attorney (1) would not have made incorrect statements regarding the forthcoming charge and thus would not have damaged his credibility in the eyes of the jury, and (2) would have spent more summation time attacking the taped evidence. Our study of the record below casts considerable doubt on the contention that Lyles' attorney would have changed his argument significantly or that any changes made in response to the charge revision would have had more than a negligible impact on the jury.
The summation by Lyles' attorney, Mr. Jerome Lewis, covered fifty pages of trial transcript, was precisely as long as the government's summation, and was lengthier than that of any other defense counsel. Mr. Lewis immediately addressed himself to the taped evidence, pointing out that the word "heroin" appeared on none of the tapes on which Lyles' voice was heard. Building on this fact, Mr. Lewis advanced the theory that the conversations between Fesperman and Lyles concerned not narcotics but ...