Appeals from judgments of conviction entered in the United States District Court for the Southern District of New York after a jury trial before Morris E. Lasker, Judge, for witness tampering, 18 U.S.C. § 1512, and conspiracy to obstruct justice, 18 U.S.C. § 371. See United States v. Montgomery, 675 F. Supp. 164 (1987).
Newman, Kearse and Cardamone, Circuit Judges.
Defendants Richard Willoughby, Quintin Prioleau ("Quintin"), Arthur Prioleau ("Arthur"), and Carleton Montgomery appeal from judgments entered after a jury trial in the United States District Court for the Southern District of New York before Morris E. Lasker, Judge, convicting them of conspiracy to obstruct justice, in violation of 18 U.S.C. § 371 (1982), in connection with an impending trial of Quintin, Arthur, and Montgomery for armed robbery; and convicting Quintin of witness tampering, in violation of 18 U.S.C. § 1512(b)(2)(D) (1982 & Supp. IV 1986). Arthur and Montgomery were sentenced to one-year prison terms; Quintin was sentenced to concurrent one-year prison terms on each of the two counts on which he was convicted. Each of these sentences was to run consecutively to sentences previously imposed on Arthur, Montgomery, and Quintin for convictions of bank robbery. Willoughby was given a suspended sentence and placed on three years' probation. Each defendant was assessed $50 for each count on which he was convicted, under 18 U.S.C. § 3013(a)(2)(A) (1982 & Supp. IV 1986).
On appeal, defendants contend principally that the trial court erred in admitting into evidence tape recordings of conversations held in June 1987 between Quintin and Willoughby, Quintin and Montgomery, and Arthur and a government witness. For the reasons below, we affirm the judgments of conviction.
In July 1987, Arthur, his brother Quintin, and Montgomery were convicted of the armed robbery of the City College branch of Chemical Bank ("Chemical branch") in New York City. The present prosecution arises out of their efforts, with Willoughby, to prevent certain witnesses from testifying at the trial of the bank robbery charges. The record in the present case includes the following.
A. The Events of June 1987
In the spring of 1987, Arthur, Quintin, and Montgomery were inmates at the New York Metropolitan Correctional Center ("MCC"), awaiting trial, scheduled for July of that year, on the charges that they and one Cornel Everett ("Cornel") had robbed the Chemical branch in March 1982. In June 1987, Arthur sent word to Sabrina Johnson, who had been one of his girlfriends in early 1982, that he wanted her to visit him at MCC on June 11.
During the investigation of the robbery, Johnson had been in contact with Agent Paul Harvey of the Federal Bureau of Investigation. On June 10, 1987, she informed Harvey and Assistant United States Attorney Joan McPhee of Arthur's request that she visit him at MCC. Johnson, after being advised that it was solely her decision whether or not to visit Arthur, stated that she probably would visit him. The government was aware that Arthur and Johnson had been largely out of contact for several years, that he had recently made repeated efforts to contact her, and that in 1982 he had conversed with Johnson about the Chemical branch robbery and had then told her he might marry her in order to prevent her from testifying against him. Recognizing that the government's case on the robbery charges consisted primarily of the testimony of defendants' friends such as Johnson and one Patricia White, another of Arthur's girlfriends in early 1982, McPhee was concerned that Arthur would attempt to intimidate Johnson or to influence her testimony at the robbery trial and therefore asked Johnson if she would be willing to wear a concealed recording device during the visit. Johnson agreed to do so, and her June 11 conversation with Arthur was thus taped.
During the June 11 visit, Arthur and Johnson discussed the 1982 robbery and the evidence available to the government to prove that Arthur, Quintin, and others had perpetrated it. Arthur stated that he had gotten the idea for the robbery from "Pat" (Patricia White testified in the present case that she had mentioned to Arthur in early 1982 that the Chemical branch would be easy to rob) and that he had passed the idea along to Quintin and others. He said the government would have had no evidence against him and Quintin but for the fact that "Ina and Pat snitched on us." He stated, "Ina and Pat snitched. They did a lot of talking . . . . That's what happened. Other than that, they didn't have no case." (Ellipsis in tape transcript.) He predicted that the robbery trial would end in acquittal "because they don't have no evidence. It's alot [sic] of hearsay. Nobody from the bank identified nobody. It's just Ina and, um, Pat's testimony, that's holdin' us."
Arthur indicated that defendants had sent threats to Ina and had attempted to locate Pat to prevent their "stand[ing] in our way." He stated, "we sent a few people around there [to Ina] to tell her, if Ina comes, they'll have to move her mother out of the block, anybody who's part of her family, . . ." but stated that they had not "been able to locate" Pat. Arthur advised Johnson that, if she were questioned again by law enforcement officers, she should "tell 'em that you don't know nothing, just leave it at that." He said, "You watch enough TV to know what happens to snitches."
On June 22, 1987, with Montgomery at his side, Quintin called Willoughby at his home, using an MCC telephone that was available to inmates. Pursuant to MCC policy, of which inmates were advised upon their arrival at MCC, and notice of which they were requested to acknowledge in writing (see Part II.A.1. below), all inmate calls from MCC institutional telephones, except properly placed calls to attorneys, were automatically recorded and were monitored on a random basis. Quintin's call to Willoughby was thus recorded. In addition, the call was monitored, and an MCC official visually observed Quintin and Montgomery from a distance of 15-20 feet.
During the telephone conversation, Quintin and Willoughby discussed preventing testimony by someone referred to as "the person." Quintin stated that "we need somebody to take care of that," and that "Cornel" would make arrangements to have "his man . . . do it," but that Cornel's man did not know what "the person" looked like. Willoughby stated that he could "pick out the person" for Cornel's man. Quintin promised to call Willoughby the next day with the telephone number of Cornel's man. He urged Willoughby to make arrangements quickly, stating that "we gotta do it this week," because in the following week the government would serve defendants with its list of prospective witnesses, and after Cornel's man "hit 'em," defendants wanted to be able to say, "we never knew who they was."
Upon completing his call to Willoughby, Quintin attempted to dial another number, and as he did so, Montgomery asked him, "What's the plan?" After Quintin's response, which was unintelligible on the tape, Montgomery said, "You blew the whole plan . . . ." Quintin replied that they had no one to do the job, asking, "who do you want to do it?" and stating that Willoughby would "go up there with the guy" to identify "her . . . . I didn't want to mention the name on the phone or nothin' . . . ." Montgomery asked, "He said he wanna do it?" Quintin assured him that Willoughby had said he knew where to go and what to do. Montgomery walked away in apparent anger.
Because this conversation took place while Quintin was holding the MCC telephone's handset off the hook, the conversation was automatically recorded.
B. The Indictments and the Verdicts
On the basis of these events, defendants were indicted in a five-count indictment. Count one charged all four defendants with conspiracy to tamper with witnesses White and Johnson and to obstruct justice, in violation of 18 U.S.C. § 371; count two charged Quintin with obstruction of justice by endeavoring to influence or prevent the testimony of "certain witnesses," in violation of 18 U.S.C. § 1503 (1982); count three charged Arthur with witness tampering, to wit, threatening Johnson with physical harm if she testified at the robbery trial, in violation of 18 U.S.C. § 1512(b)(2)(A) (1982 & Supp. IV 1986); count four charged Quintin with witness tampering, to wit, attempting to prevent the appearance of White at trial, in violation of 18 U.S.C. § 1512(b)(2)(D); and count five charged Arthur with witness tampering, to wit, directing Johnson to withhold evidence relating to the robbery, in violation of 18 U.S.C. § 1512(b)(3) (1982 & Supp. IV 1986).
Prior to trial, defendants moved to suppress the tape recordings of the June 11 and June 22 conversations on various grounds. To the extent pertinent here, Quintin, Willoughby, and Montgomery moved to suppress the June 22 conversations on the grounds that the taping of those conversations violated their rights under Title III of the Omnibus Crime Control and Safe Streets Act ("Title III"), 18 U.S.C. §§ 2510-21 (1982 & Supp. IV 1986), and their rights under the Fourth Amendment to the Constitution to be free from unreasonable searches and seizures; Arthur moved to suppress the tape of his June 11 conversation with Johnson on the ground that the taping violated his Fifth Amendment privilege against compulsory self-incrimination because he was not given Miranda (Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1964)) warnings. In a published opinion, United States v. Montgomery, 675 F. Supp. 164 (1987), the district court denied the motions to suppress. Relying on United States v. Amen, 831 F.2d 373 (2d Cir. 1987), cert. denied, 485 U.S. 1021, 108 S. Ct. 1573, 99 L. Ed. 2d 889 (1988), the court held that the taping of the June 22 conversations was permissible under the "consent" exception to Title III; it rejected the Fourth Amendment argument on the ground that the government's interest in prison security outweighed any expectation defendants might have had of privacy in their conversations, especially in light of the notice given that telephone conversations would be intercepted. The court rejected Arthur's Miranda claim on the ground that his June 11 conversation with Johnson was voluntary rather than the product of coercion.
Accordingly, the government's evidence at trial included the tape recordings of the June 11 conversation and both June 22 conversations. In addition, there was testimony from several witnesses, including MCC officials, Johnson, and White.
The jury found all four defendants guilty of conspiracy (count one) and found Quintin guilty of witness tampering (count four). Count two against Quintin was dismissed at the close of the government's case; Arthur was acquitted on counts three and five. ...