Appeal from a judgment of the United States District Court for the Southern District of New York (Griesa, Judge), after a jury trial, convicting appellants of conspiracy and substantive offenses in violation of 21 U.S.C. §§ 846, 812, 841(a) (1), and 841(a) (1) (A) (1976), and raising, as grounds for reversal, Fourth Amendment claims, sufficiency of the evidence claims, alleged error for failure to issue certain jury instructions, and particular individual claims as well.
Oakes, Cardamone and Winter, Circuit Judges.
Ronald Barlin, Anthony Cuccio, Milagros Fantauzzi, Herbert Frank and George Gleckler appeal from their convictions in the United States District Court for the Southern District of New York following a two-week trial before Judge Griesa and a jury. Barlin was convicted of one count of conspiracy to distribute and possess a controlled substance under 21 U.S.C. § 846, and one count of possession and intention to distribute under 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A). Cuccio and Fantauzzi were convicted of one count of conspiracy, Frank on one count of conspiracy and two possession counts, and Gleckler on one count of conspiracy.
The events leading to these convictions began on January 20, 1981 when Special Agent Louis Diaz of the Drug Enforcement Agency ("DEA") met with a confidential informant and together drove to the Greenwich Village apartment of Bruce Erbacher. While Agent Diaz waited in the car, the informant made several trips into and out of the building. Meanwhile, Herbert Frank arrived and entered the building. A short time thereafter, Frank, Erbacher and the informant emerged. After a brief conversation, Frank departed. The informant then returned to the car and handed Diaz a half ounce of 56.2% pure heroin.
Further efforts were made by the DEA to exploit the contact between the informant and Erbacher. On February 10, 1981, following a recorded telephone conversation in which Erbacher agreed to supply the informant with a full ounce of heroin, Diaz, posing as a Philadelphia-based drug buyer, was introduced to Erbacher. Diaz accepted a little less than an ounce of 65.4% pure heroin and then offered to purchase up to a pound of heroin on a weekly basis. Erbacher responded enthusiastically, describing eager sources ready to do volume business.
To corroborate his ability to supply heroin, Erbacher arranged for Diaz to meet one of his sources, a man identified as "Robin." The two met on March 4, 1981 in Erbacher's apartment. "Robin" was in reality Herbert Frank, who also told a tale of networks and sources. His story was even more intriguing, for it included "family," meaning organized crime figures, and kilogram-weight packages of high quality heroin. However, Frank groused about the need for buyers to accept delivery, noting that he had been holding an ounce of heroin for Diaz for over a week. Diaz agreed to purchase the ounce and consummated the deal with Erbacher immediately after Frank had left.
During the next three months, Diaz's liaison with Erbacher and Frank flourished. After some negotiations, Erbacher arranged a mid-April sale of a half-kilogram of heroin for $134,000. The transaction, which was to be shepherded by Frank, was aborted only when Frank refused to deal face-to-face with Diaz. Nevertheless, Erbacher continued to press Diaz and in early May, he called him to report that he, Erbacher, might be able to deal directly with Frank's sources, men identified as "Ron" and "Pepe." On May 6 and 11, Erbacher again called Diaz, offering four ounces of heroin on each occasion. Diaz accepted the second invitation and arranged to buy two ounces on the following day.
Diaz arrived at Erbacher's apartment as planned on May 12, 1981. A conversation ensued in which Erbacher reported that Frank had another eight ounces of heroin waiting in Queens. Meanwhile, Erbacher delivered the two ounces and Diaz paid the money. While Erbacher was counting the money, Diaz arrested him.
Erbacher agreed to cooperate with DEA and, on the night of May 12, tried to make arrangements to consummate the drug transaction with Frank in Queens. With his phone tapped, Erbacher placed a call to Frank at approximately 5:35 p.m. Pauline Frank answered the phone and informed Erbacher that her husband, Herbert Frank, was not home. Erbacher told her he would call back later. When he did so at 6:30 p.m., Herbert Frank was still out and Erbacher spoke instead to George Gleckler.
This was the first of four conversations which Erbacher would have with Gleckler that night. In each, Gleckler was disturbed. He informed Erbacher that Frank was away "on an emergency" and would not be returning until 2:00 a. m. He stated that an unidentified third party had made a series of calls and was "flippin ' out" waiting for delivery of money owed him. With an increasing sense of urgency, Gleckler's calls described a "guy" who was "really pissed" and who had said that if Erbacher knew what was good for him, he would deliver the money right away. Gleckler suggested that Erbacher come to Queens with the money "if [he] ever want[ed] to work with [the third party] again," and he kept pressing Erbacher as to when the money would be delivered to Queens. Erbacher stalled for time, and told Gleckler that he was minding his baby while his wife was out. Exasperated, Gleckler offered himself to come to Manhattan to pick up the money. Erbacher, however, declined and promised instead to deliver it.
Agent Diaz spent the entire night at Erbacher's apartment. On the following day, May, 13, 1981, he obtained a warrant for Herbert Frank's arrest, and in the early afternoon he met DEA agents Kobell and Chamberlain in Queens. At 1:30 p.m., Diaz called the Frank apartment. Pauline Frank answered and informed Diaz that Herbert Frank was not home. Thereafter, Diaz and the other agents went to the Frank apartment and drew Pauline Frank out into the hallway. Identifying themselves to Mrs. Frank, the agents asked to enter. She agreed. At that point, a man, later identified as Anthony Cuccio, opened the door to let Pauline in and quickly shut it to keep the agents out. Immediately thereafter, however, the agents were allowed inside.
The agents found Pauline Frank, Ronald Barlin, Anthony Cuccio, and the Franks' daughter Annette in the apartment. A cursory search was made to find Herbert Frank, who was not there. Identification was requested of Barlin who was then detained on the suspicion that he was the "Ron" earlier identified by Erbacher as Frank's heroin source.
Cuccio insisted he had nothing to hide and offered to display his personal belongings. When he and Diaz approached those belongings, Cuccio reached toward a suitcase. Diaz noticed a shotgun stock sticking out of a plastic bag near the suitcase. Diaz seized the gun. Everyone denied ownership. Cuccio was arrested.
At approximately 3:00 p.m., after calling federal prosecutors, Diaz left to secure a search warrant for the premises. The parties have stipulated that the warrant was signed at 6:22 p.m. Confusion exists as to what happened in the interim. The Franks' son, Michael, testified that he came home at approximately 2:30 p.m. and at some point thereafter saw agents searching through his parents' bedroom. Mrs. Frank herself offered conflicting testimony, placing commencement of the search first at approximately 1:15 p.m. and later at some time after 3:00 p.m. A carpenter who had the misfortune to arrive at approximately 5:00 p.m. testified as to clothes strewn around the den, a large room immediately past the foyer.
The agents, however, told a different story. Before Diaz actually arrived with the warrant, he called the apartment to inform his colleagues that the warrant had been granted. Agent Kobell testified that the search didn't begin until Diaz actually returned. Diaz, however, testified that the search appeared to have just begun when he arrived. In any event, the search disclosed "modest amounts" of 89.8%, 76.6% and 70% pure heroin, two packages of cocaine, a triple beam balance, packaging materials, shotgun shells and handgun ammunition.
At 7:00 p.m., Mrs. Frank was arrested. She, Barlin and Cuccio were removed from the apartment, and the agents remained to inventory the search. At 9:00 p.m., Herbert Frank entered the apartment, along with Milagros Fantauzzi and George Gleckler. Frank was immediately arrested and frisked. A total of $9,600 was found in his boots and over $47,000 in his briefcase. Meanwhile, Kobell attempted to neutralize Gleckler and Fantauzzi. Gun drawn, Kobell ordered Gleckler to empty his pockets, kneel down, and put his hands on his head and cross his legs. The contents of Gleckler's pockets were placed in a bag. Fantauzzi was ordered against the wall, patted down and then asked to expose her waistband to ensure she had no weapons on her person. She consented and no weapons were discovered.
At this time, the three DEA agents were without handcuffs because of previous arrests and they had not finished the inventory. Sometime after frisking the trio, Fantauzzi's pocketbook was noticed. Fantauzzi was between five and 20 feet from the bag. Chamberlain searched the bag and discovered $5,000 and one-half pound of 89.6% pure cocaine.
Gleckler and Fantauzzi were then arrested. Subsequent investigation disclosed that Gleckler's wallet contained keys to a safe deposit box rented by Barlin and two pages of notes made by Gleckler recording various amounts of money paid to various persons and profits taken. On October 23, 1981, the jury convicted each of the appellants.
Appellants claim their convictions violate the Fourth Amendment and allege errors regarding the nature and proof of the underlying conspiracy. They also advance individual grounds for reversal.
Fantauzzi and Gleckler contend that the search of Fantauzzi's pocketbook was illegal while Gleckler also challenges the seizure of his wallet. Fantauzzi and Gleckler claim the District Court erred in failing to give appropriate charges on multiple conspiracies and specific intent. All appellants, save Frank, claim the evidence was insufficient to support their convictions. Finally, Fantauzzi asserts error in the denial of her motion for severance, Frank and Barlin contend the destruction of certain notes by the DEA violated the disclosure requirements of the Jencks Act, 18 U.S.C. § 3500 ...