This is an appeal by seven defendants from judgments of guilty entered following a jury trial in the Eastern District of New York. Each appellant was convicted of conspiracy to import, possess with intent to distribute, and to distribute substantial quantities of heroin in violation of 21 U.S.C. § 846. In addition, each appellant was convicted of at least one substantive count of importation of heroin, or aiding the importation thereof. The convictions occurred at the second trial in the case, the first having resulted in a hung jury. Various issues are raised on appeal, some of which are pertinent to a single defendant, and some of which pertain to three or four defendants. The judgments of conviction are affirmed in all respects.
Before Meskill, Circuit Judge, and Kelleher*fn* and Holden,*fn** District Judges.
The original indictment charged that these appellants, along with eleven other defendants, were members of a large conspiracy to import heroin from Thailand into the United States. The first count of that indictment charged that one Charles Praetorius, brother of Frederick Praetorius, one of the instant appellants, had organized and managed a series of violations of the narcotics laws. Charles Praetorius was ultimately acquitted of that charge, but was convicted on charges of conspiracy and importation. Most of the remaining counts of the instant indictment charged various defendants with substantive violations of the narcotics laws; one count charged all eighteen defendants with conspiracy to violate the narcotics laws. After the first trial resulted in a hung jury on most of the counts of the indictment, the seven instant appellants were tried together. Two other of the original defendants were separately tried and convicted at a second trial.
There are numerous grounds of appeal asserted. Some are raised singly by the several defendants. But ultimately each appellant appears to have joined in the ground asserted by the others "insofar as they are applicable." Accordingly, we recite the facts as found by the jury and thereafter discuss the several issues raised, and finally consider the particular issues applicable to individual defendants.
Most of the evidence in the trials was furnished by two witnesses who had participated in the conspiracy, Ralph Abruzzo and Glenston Page Laws. Abruzzo and Laws were the chief lieutenants of Charles Praetorius, the organizer of the conspiracy.
Abruzzo testified that the conspiracy was begun in 1976, when he and Charles Praetorius traveled on airline employee passes to Bangkok, Thailand. In Bangkok, they made a heroin connection through a call girl with the owner of a bordello. Praetorius and Abruzzo smuggled the heroin which they purchased from the bordello owner back to the United States, taping the heroin to Praetorius' body to escape detection in customs.
Glenston Laws joined the conspiracy in 1976, when he and his wife, Carlotta Ragan (one of the appellants here) offered to finance a trip to Thailand by Praetorius and his wife, Diane, an old friend of Ragan. Laws and his wife separated soon after the trip had been arranged, and Laws did not learn of the outcome of the trip until June of 1977. However, Abruzzo and Jacob Hunt, one of the buyers of Praetorius' heroin, learned that the Praetoriuses had indeed gone to Thailand, and that Diane had carried heroin back to the United States in her brassiere.
In March of 1977, Praetorius and Abruzzo planned an April trip to Thailand for more heroin. They flew to Thailand as they had discussed, accompanied by Carlotta Ragan and Doris Jackson, a friend of Ragan's (who was acquitted by the jury of all charges). They made a purchase of two kilos of heroin while there. Ragan provided the cash to make the purchase; Praetorius told Abruzzo that Ragan's boyfriend, David Bell, was providing the financing. They taped the heroin inside some airline ski bags, or on their bodies. There was testimony that both Ragan and Jackson were taped up with drugs on this occasion. Abruzzo testified that he carried five ounces of heroin himself, and that Charles Praetorius carried about half a kilo.
Praetorius and Laws arranged in June to make another trip to Bangkok in July. Praetorius recruited two of his New York Airways co-workers to go on the trip as couriers, Kenneth Clark and Louis Juan. Laws was financed on this trip by Danny Warren, a dealer who was previously a customer of Praetorius. Laws, Praetorius, Abruzzo, Clark and Juan left July 6, 1977, for Bangkok. The same method of smuggling the contraband into the United States was used. However, Praetorius and Abruzzo did not carry any heroin on their persons on this trip, but paid Clark and Juan to ferry the drug for them. Clark and Juan left Thailand a couple of days before the others, presumably to insure that they would be isolated from the others in the event they were detected. Upon returning to New York, Praetorius retrieved the heroin from Clark and Juan, and paid them $25,000 per half kilo. Abruzzo "sold" his heroin, which had been carried by Juan into the United States, to Praetorius, who distributed it in this country.
In August, Laws borrowed $24,000 from Praetorius to finance a heroin-purchasing trip to Bangkok, to be taken in the latter part of the month. Laws recruited his own couriers for this trip, with the exception of Frederick Praetorius, Charles' brother (one of the appellants herein), who went along in his brother's behalf to purchase one half kilo. The trip was made in late August and early September, Laws making all of the arrangements to purchase the heroin, and supervising the taping procedures.
In late September, Charles Praetorius, his wife, Diane, Abruzzo, Kenny Pollitt (a co-worker of Abruzzo), Vincent Auletta (also a co-worker, and one of the appellants herein), Eric Romandi and Kenneth Clark made still another trip to Thailand. Pollitt acted as Abruzzo's courier, and Auletta and Romandi acted as Praetorius' courier. Praetorius, Clark and Romandi financed this venture, on arrangements that the heroin would be resold to Praetorius in the United States for distribution. Rather than use their airline privileges to travel, the entire group purchased regular tickets, so as not to be "bumped" from a flight. They purchased four kilos of heroin on this occasion, again taping the drug to their bodies, and again flying back on separate planes to disassociate themselves from one another.
Praetorius planned an even more extensive operation for December, 1977, involving seven couriers and $70,000 worth of heroin (seven kilos). Charles and Frederick Praetorius, and Glenston Laws supervised the December operation. Michael Lanza, Kenneth Lebel and William Burley (friends of Praetorius, and three of the instant appellants) were couriers for Praetorius. Laws recruited four women to act as his couriers, Audrey Plunkett, Brenda Hollenback, Kathy Sargent, and Gail Harris (one of the instant appellants). Burley and Lebel left Bangkok on December 17, 1977. Laws testified that each had there been taped with heroin, which each denied. Burley testified that he left early, upon receiving word that a close friend was very ill in New York. Laws testified that he saw Lanza crushing the heroin for packing upon his body, but did not actually see the heroin taped to his body. He said that Frederick Praetorius made the heroin purchase, and helped to supervise the taping, along with his brother and Laws. Sargent left on December 17, 1977, the same night that Lebel and Burley left, but on a different flight. Harris and Hollenback left the next night, and Plunkett the night after that. The Praetorius brothers and Lanza left on the 20th of December.
In addition to the testimony of Abruzzo and Laws, the government relied upon the testimony of Pollitt, one of the couriers on the September trip, and Hollenback, one of the December couriers. Jacob Hunt testified to making a series of heroin purchases from Charles Praetorius between November 1976 and June 1977. The testimony regarding the travel of the conspirators was corroborated through documentary evidence such as airline tickets, hotel registrations, passports entries, and customs declarations. Two small quantities of 100 percent pure heroin, sold by Pollitt and Hunt to undercover agents, were admitted into evidence. Another small quantity of 100 percent pure heroin was seized from Charles and Diane Praetorius' home and safe deposit boxes, along with $92,000 in cash. Each of these items was admitted into evidence at the second trial, although each had been suppressed as to Charles and Diane Praetorius at the first trial.
All told, eleven distinct issues are raised by the seven appellants for review by this Court. We conclude that none of the asserted errors by the trial court warrants reversal, and accordingly affirm the convictions of each of the appellants. We now proceed to discuss each of the issues raised.
The Prosecutor's Summation
Burley contends that the prosecutor argued to the jury based upon evidence which was not in the record. Burley testified at trial that he received a telephone call from his wife in December, while in Thailand, informing him that his best friend was dying. He testified that he rushed home immediately, cutting short what was to be his vacation. He stated that upon arriving, he called his friend's wife, and visited his friend in the ...