Appeal from judgments of the District Court for the Southern District of New York (Constance Baker Motley, Chief Judge), convicting defendants, after a jury trial, of narcotics violations. Appellants challenge, among other things, the verdict of eleven jurors, returned after one juror was excused during deliberations pursuant to Fed. R. Crim. P. 23(b). Affirmed.
Before: Newman and Winter, Circuit Judges, and Coffrin, District Judge.*fn*
JON O. NEWMAN, Circuit Judge:
This appeal concerns primarily the validity of a verdict returned in a criminal trial by an eleven-person jury, after a juror was excused during deliberations pursuant to the recently amended Rule 23(b) of the Federal Rules of Criminal Procedure. Richard Stratton, Steven Parness, Leonard Parness, and Bernard Farbar appeal from judgments of conviction entered in the District Court for the Southern District of New York (Constance Baker Motley, Chief Judge) following a jury trial. All appellants but Stratton were convicted of conspiracy either to distribute drugs or possess drugs with intent to distribute them, in violation of 21 U.S.C. § 846 (1982).*fn1 All appellants were convicted of conspiring to import hashish, in violation of 21 U.S.C. § 963 (1982), and of importing hashish, in violation of 21 U.S.C. §§ 952, 960 (1982). Stratton was also convicted of engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848 (1982), and cited for criminal contempt for his conduct during the course of the trial.*fn2 In addition to the eleven-person jury issue, all appellants but Farbar challenge the sufficiency of the evidence to support their convictions and certain evidentiary rulings. Stratton challenges certain of the jury instructions and the summary nature of the criminal contempt proceedings.*fn3 Because each of these contentions is without merit, we affirm.
The Government's proof at trial demonstrated that appellants, under the leadership of Stratton, were responsible for importing a major hashish shipment into the United States from Lebanon in 1981. Stratton became acquainted with the international drug business in the mid-1970's. Shortly thereafter, Farbar became his assistant. In the late 1970's, Stratton met Mohamad Berro, a former Lebanese customs inspector, who, with his son Nassif, was a substantial supplier of Lebanese hashish. In January 1980, Stratton and Farbar planned to import hashish from Lebanon, with the Berros as their source of supply. The shipment, purportedly of machine tools, went by air from Lebanon to Tokyo, Japan, and then to Kennedy Airport in New York. Because of the shipment's unusual itinerary, Customs officials inspected it and discovered 2,000 pounds of hashish. At that time, the Government could not identify the responsible parties.
Stratton resolved to find a better cover for his next importation of Lebanese hashish. For this purpose, he brought Steven Parness and his father Leonard, the owner of a New Jersey based trucking concern, into the conspiracy. The Parness Trucking Company had a business relationship with a company that imported dates from the Middle East, the Bordo Products Company of Chicago. It was decided that an importation of 150,000 pounds of dates by Bordo would be used to camouflage importation of more than seven tons of hashish and hashish oil.*fn4
In preparation for the second shipment, Mohamad and Nassif Berro visited New York in April of 1980. They attended a dinner meeting with Stratton, his wife, Gabrielle, and Farbar. Sobhi Hammoud, a distant relative of the elder Berro, acted as his interpreter. Mohamad Berro told Hammoud that Stratton and Farbar had been good customers of his in the date business for some time. Hammoud acted as interpreter for Mohamad Berro at a second dinner meeting with Stratton and Farbar at which the date business was again discussed. Berro invited Stratton to come to Lebanon to inspect the goods. Stratton's passport shows that he visited Lebanon in July of 1980.
Mohamad Berro returned to New York in September 1980. He and Hammoud met with the Strattons, Farbar, and Steven Parness. Parness displayed a bag of dates and told Berro that the sample demonstrated the quality of dates desired by his customer, the Bordo Company. Berro agreed to provide dates of that quality. Berro later shipped a sample of dates to New York. The Bordo Company found them to be of acceptable quality. In January 1981, Bordo formally confirmed an agreement to purchase 150,000 pounds of Iraqi dates from the Berros.
In January 1981, the Strattons went to Lebanon at Mohamad Berro's request. Stratton sent for Farbar, who smuggled $50,000 in cash into Lebanon as the first downpayment on the illicit hashish shipment. In February 1981, the dates and the hashish were loaded on two ships in Beirut, Lebanon. The total shipment consisted of six containers. Within each container, cartons of hashish were surrounded by layers of cartons of dates.
In April 1981, the two ships arrived in New York. Leonard Parness had been assigned by Stratton to pick up the shipment but was hesitant out of fear of discovery by Customs officials. Stratton paid Leonard Parness $600,000 to convince him to pick up the shipment. Customs officials accompanied the shipment to the warehouse of the Parness Trucking Company. They made a cursory inspection, and, finding only dates, they left. After initial delivery, the Parnesses moved the hashish to a "stash-house" located on Staten Island.
In May 1981, Mohamad Berro traveled to New York to receive payments for successful delivery of the hashish. On separate occasions, Stratton gave him $20,000, $180,000, and $30,000. As Stratton was making the last of these payments, Steven Parness complained that Berro was receiving more than his share. Stratton told Parness to keep silent, paid Berro the $30,000, and indicated that profits from the sale of the hashish oil would be divided solely between Stratton and Berro.
Stratton made plans to transport the hashish to Canada for sale. He agreed that as profits became available he would give Berro's share to Hammoud, who would transport it from Canada to Lebanon. In August of 1981, Hammoud went to Canada at Stratton's direction. He was instructed to phone Michelle Siegel, Gabrielle Stratton's daughter, to locate Gabrielle and to pick up the money from Gabrielle.*fn5 Following this procedure, Hammoud received $270,000 and transported it to Lebanon. Shortly thereafter, Gabrielle Stratton gave $300,000 to Nassif Berro, who took the money to his father.
In September 1981, Hammoud made a second trip to Canada. He contacted Siegel and was eventually given $270,000 by Gabrielle Stratton and Terry Heddon, a Canadian pilot who worked for Richard Stratton. During October, Hammoud made his third trip to Canada and received $212,000 from Gabrielle Stratton and Michelle Siegel. Gabrielle informed Hammoud that this was to be the last of the payments to Berro.
Mohamad Berro, unwilling to see the payments end, went with Hammoud to Nassif Berro's home in Miami in November of 1981. The group eventually located the Strattons in the Bahamas. On two occasions, Gabrielle Stratton hung up on Hammoud. Richard Stratton then called Hammoud and threatened to kill Hammoud's family if Hammoud continued to bother him.
Mohamad Berro and Hammoud then returned to New York, where they met with the Parnesses. All parties complained that Stratton was refusing to pay out any more money. The Parnesses also noted that they were still awaiting Stratton's instructions regarding disposition of the last ton of hashish in storage. Upon his own return to New York, Stratton made a final $10,000 payment to placate Berro.
In June 1982, Hammoud and Nassif Berro were arrested in California on unrelated drug charges. Hammoud agreed to cooperate with the Government and ultimately provided the core of the Government's proof at trial.
In September 1982, Hammoud induced Farbar to meet with an undercover agent of the Drug Enforcement Administration (DEA), Martin Maguire. Agent Maguire posed as a drug dealer wishing to locate the last ton of hashish held in storage by the Parnesses. Maguire suggested that the proceeds from the sale could be used to bail out Nassif Berro and ensure that he would not cooperate with the Government. Farbar agreed to talk with the Parnesses about the last of the hashish. Although the Government attempted to record this conversation, a mechanical failure prevented its introduction as evidence at trial.
The Government was successful, however, in recording three further conversations involving Farbar. During a car ride, Farbar told Hammoud that he had done his best to locate the Parnesses but had been unsuccessful. He discussed the hashish deal with Hammoud, including his own trips to Lebanon, and wondered what effect the Lebanese war would have on the hashish business.
At a dinner meeting with Hammoud and Maguire, Farbar again explained that he had been unable to reach the Parnesses. He said that Stratton might have paid some money to Ayala Shibley, a relative of the Berros living in Texas. He said he hoped Nassif Berro would not cooperate with the Government. Farbar then discussed the course of the hashish transaction. He recalled Leonard Parness's original reluctance to pick up the hashish shipment. He confirmed that Stratton had paid Berro $1.3 million but had probably reneged on a promise to pay additional money. He speculated that the last ton of hashish probably remained at the stash-house on Staten Island.
At a final meeting with Hammoud, Farbar told him that he had learned from Gabrielle Stratton that Nassif Berro would probably cooperate with the Government. Farbar said he still hoped this would not occur and again expressed concern about the effect of the Lebanese war on the hashish business.
In May 1983, DEA agents obtained a warrant to search the stash-house on Staten Island. The search uncovered a large wooden pallet of the same type as the one used to unload the hashish in April of 1981. Although no hashish was present, the DEA agents ...