Before BAZELON, Senior Circuit Judge, WILKEY, Circuit Judge, and PARKER,* United States District Judge for the District of Columbia.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
Nos. 78-1333, 78-1409, 78-1410, 78-1411, 78-1412, 78-1419 1980.CDC.50
Rehearing Denied July 11, 1980.
Appeal from the United States District Court for the District of Columbia (D.C. Criminal 77-00632).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PARKER
In 1977, the government conducted an extensive investigation of a suspected heroin sales ring operating in Washington, D.C. The investigation, conducted by local and federal undercover agents with the assistance of paid informants, made use of concealed tape recorders and video-taping of street activities. It led to the exposure of and cracked the so-called "Stampede organization," a lucrative and financially successful retail heroin sales operation. The result was a 23 count indictment returned against eight defendants and, ultimately, multiple convictions of six. The appellants currently before this Court are John R. Slade; Odell Johnson, Jr.; Arthur Watson, aka Speed; George N. Marshall; David Redd, aka Slim; and John R. Johnson, aka Stampede (Odell and John R. Johnson are brothers); Nos. 78-1333, 78-1409 to 1412, 78-1419, respectively. *fn1
The indictment, returned October 11, 1977, charged all defendants with conspiracy to distribute heroin in violation of 21 U.S.C. § 846. Each appellant was also named in one or more of the substantive counts charging distribution of or possession with intent to distribute narcotics in violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 2. The substantive counts closely mirror the 25 overt acts in the conspiracy count, covering transactions from April 5 to September 29, 1977. Following ten days of trial and seven days of deliberations, the jury convicted all appellants of conspiracy and convicted all but appellant Arthur Watson, of one or more substantive counts. *fn2 A chart listing the counts, the verdicts, and the relevant evidentiary tapes is attached as Appendix A.3
Appellants seek reversal of their convictions on four major grounds. They contest the propriety of the jury following audio tapes with government-prepared transcripts which had not been reviewed for accuracy by the court at pretrial. The trial judge afforded defense counsel the opportunity to submit alternative transcripts, and instructed the jurors that their independent understanding of the tapes should supersede the transcripts. Second, they challenge the trial judge's decision barring defense counsel from using the Saint Elizabeth's psychiatric hospital records of a key government witness, who was released from the hospital in 1974. Third, they allege that repeated references by government witnesses to the "Stampede organization" or the "organization" denied them a fair trial, since the references implied the existence of undisclosed proof of such an organization having appellants as members, a prejudicial implication allegedly not cured by the trial judge's instructions to the jury to ignore the references. Finally, they challenge the conspiracy instruction given to the jury. Rather than using the standard instruction that a defendant's membership in a conspiracy may be proven only by his own acts and statements, versus those of co-defendants, the judge instructed the jury to determine the existence of a conspiracy "on all the evidence." Various other grounds for reversal are asserted by particular appellants.
For the reasons outlined in this opinion, none of these alleged errors, considered alone or cumulatively, warrants reversal of the several convictions. The same is true for the matters raised by individual appellants, with one exception, the Appellant Watson. We reverse the conspiracy conviction of Arthur Watson,4 finding that he was impermissibly impeached by a misdemeanor firearms conviction not involving dishonesty.
In all other respects, we affirm the defendants' convictions. I. THE EVIDENCE AND PROCEEDINGS AT TRIAL
The government's witnesses clearly identified all appellants as members of a heroin-distribution ring managed principally by John R. "Stampede" Johnson and his brother Odell Johnson. The ring operated in the 1800 block of 7th Street, N.W., near 7th and T Streets, a neighborhood described as notorious for drug activity. The so-called "Stampede organization" displayed a degree of imagination with members described as sometimes secreting in and dealing heroin from hollowtipped walking canes. On an average day, sales were estimated at as much as $2400 an hour. (Tr. at 262, 771).
The government's investigation of the suspected drug ring began in April and continued to September, 1977. The key figures in the investigation were detective Anthony Patterson and agent Donnie Smith. They were supervised by Detective Kenneth Johnson of the Metropolitan Police Department. Patterson was a seasoned undercover policeman familiar with the 7th and T Streets area and a member of the city police force. Donnie Smith was an experienced Drug Enforcement Administration agent. They relied heavily on two paid informants, Allen Whaley and Charles Ward. These four were the government's chief witnesses.
Both Whaley and Ward had histories of drug addiction together with extensive criminal records associated in large part with their drug addiction. The evidence showed that Whaley's use of narcotics continued through the government's investigation which led to the indictment of the appellants. Ward, on the other hand, denied narcotic drug usage in recent years.
A. Testimony of Detective Patterson and the Informant Whaley
Detective Anthony Patterson was introduced into the narcotic operations through the informant Whaley. Through this contact he met and dealt with Odell Johnson and Stampede Johnson. Patterson's testimony clearly established that from early April through April 25, 1977, he had direct personal contact with the two appellants. Through them he arranged for and made narcotic purchases, both directly and indirectly. Through one or more of those appellants he negotiated and arranged for a series of transactions. The detective's testimony supported counts 2 through 6 of the indictment and the criminal involvement of the two Johnson brothers. In the course of his testimony Patterson testified that following one heroin purchase, Bolden remarked that they would "soon see how good Stampede's dope is."
Stampede Johnson's counsel moved for a mistrial based on the detective's testimony recounting several such statements of Bolden and Patterson concerning "Stampede" dope (Tr. at 308-310) labeling certain statements hearsay and another an inadmissible statement by a person not designated as a co-conspirator. The trial judge agreed that a "worrisome situation" existed but denied the motion. At a later time Whaley also testified that he was told by Detective Kenneth Johnson, who supervised both Patterson and Smith, "to purchase some drugs from Stampede's organization." (Tr. at 617). Counsel again moved for a mistrial, claiming that the informant's testimony was prejudicial hearsay. In denying the motion the court's offer of a curative instruction was refused as inadequate. However, the prosecutor was cautioned. (Tr. at 654). On still other occasions there was reference to the "Stampede organization" and the "organization" (Tr. at 685-690). The trial court again denied that appellant's counsel's motion for a mistrial.
Defense counsel sought to discredit Whaley in every possible manner. They secured his admissions that he used heroin regularly and committed acts of larceny throughout the investigation. Under cross-examination, Whaley testified that he had been at Saint Elizabeth's Hospital from 1970 to 1974, having been found not guilty by reason of insanity on an automobile theft charge. Appellants' counsel also elicited that Whaley received outpatient medical treatment after 1974 and that he had violated medical orders to abstain from narcotic drugs. However, the court refused to afford counsel an opportunity to explore or examine in any detail on Whaley's confinement, diagnosis or treatment or to introduce his medical records, finding the latter "confidential."
B. Testimony of Agent Smith and Informant Ward
Special Agent Donnie Smith of DEA testified about his work with informants Ward and Whaley. The testimony of Smith and Informant Ward gave particular support to the charges against the Johnson brothers in counts 7, 8 and 9 and specifically against Stampede Johnson and George Marshall on the transactions set forth in count 21 of the indictment. The prosecution's proof on count 21 was supported by a video-tape recording. The tape was shown to the jury and Ward narrated the transaction recorded on film and identified the appellants Marshall, Redd and Stampede Johnson.
Ward and Smith first appeared in the 7th and T Streets area in early May and were engaged in gathering evidence for several weeks. After a lapse of time they reappeared around the first of September. On this occasion, Ward was provided with a recording device worn under his shirt. Ward and Smith made a number of purchases from Stampede Johnson during this period implicating defendants Watson, Marshall, Redd and Jones as well as the Johnson brothers in a number of transactions. Ward and Smith detailed these sales and observations made at these times in testimony supporting a number of substantive counts. Following each drug sale, a report was prepared. Ward admitted that he did not personally prepare the statements he signed; Smith filled in many of the specifics. DEA agents also prepared the transcripts of the tape recording which Ward relied upon in his testimony. Ward testified as to the accuracy of the transcripts.
During his testimony, agent Smith, as had other witnesses, made references to "Stampede's organization" which led to a motion for mistrial by Stampede Johnson's counsel. The trial court denied the motion and later instructed the jury with regard to these statements.
1. Impeachment of Informant Ward
Counsel for Stampede Johnson cross-examined Ward extensively about his drug addiction. He admitted use of heroin and methadone between 1972-76, spending up to $500 a week on heroin while receiving a substantial percentage of his income from DEA. However, he failed to disclose his involvement in illicit drug purchases to the DEA agents. Defense counsel questioned Ward about drug purchases he had made with friends in the 7th and T Street area during the Stampede organization investigation. (Tr. at 507). When asked by the prosecutor whether Ward had purchased narcotics in that area prior to his role as an informant, Ward replied that he had bought drugs from "Slade." (Tr. at 591). Counsel for defendant Jones objected because the question concerned a time before the conspiracy. While the court sustained the objection, the motion for a mistrial was denied. (Tr. at 606).
Ward was a very important prosecution witness and he was cross-examined vigorously and a restriction on additional examination was imposed. Although the court limited cross-examination by Johnson's counsel to 45 minutes, defense counsel was allowed to inquire further when his time had elapsed. Johnson's counsel inquired into Ward's criminal record in an attempt to show that after being charged with a felony, a six-month term was obtained with DEA assistance and that arrangements had also been made for the dismissal of certain charges pending against Ward in Virginia. Ward denied that charges were dismissed due to intervention by DEA authorities.
2. Use of Recording Devices and Tape Transcripts
The government provided the two informants with concealed mechanical devices which recorded the conversations and negotiations for drug purchases which they had with several of the appellants. Guilty verdicts on several counts arising from the recordings were returned against Stampede Johnson, Slade and Redd.
Following testimony as to how the tape recordings were electronically enhanced to remove background noise, the recording was played for the jury. (Gov't Ex. 10). The prosecution also provided the jurors with a prepared written transcript of the recording. (Gov't Ex. 11). The transcript was not entered into evidence. At the same time the following instruction was given by the trial judge:
his paper that has been handed to you is the government's interpretation of what appears on these tapes. However, you will listen to the tapes very carefully and make your own interpretation of what appears on the tapes from what you hear. If you think you hear something differently than the government has interpreted on this paper, then you will follow your own interpretation. (Tr. at 482).
The transcript revealed that portions of the tape were largely unintelligible. The prosecution skipped over large portions of this tape and all subsequent tapes entered into evidence, because of sections identified in the transcripts as "street," "background," or "unidentified" noise.5
C. Additional Prosecution Witnesses
Other members of the Metropolitan Police Department corroborated the informants' testimony and also offered testimony on actual drug seizures from various locations, connecting the seized drugs with a particular defendant. Expert witnesses in the field of analytical chemistry gave testimony on the technique and procedures of analysis and identified the substances purchased and seized as heroin. Expert fingerprint analysts identified the appellant Watson's fingerprints on several tinfoils in which heroin was wrapped. A DEA agent qualified and testified as an expert witness on drug trafficking and sales on the public streets. He described the typical organization of a narcotics ring and defined the roles of the several participants such as the leader, who does not touch the drugs; the lieutenant, who arranges the transactions; and the runners, who pick up and distribute drugs.
Detective Kenneth Johnson prepared the transcripts of the several tapes made by Ward and Whaley. In testifying he attributed names to certain voices by direct references, but depended on the informants to identify other voices on the tapes. At any rate, he testified that by the time the final typed copies of the transcripts were given to the informants to review, the names of the speakers were alongside the conversations. (Tr. at 1512).
A final prosecution witness, Thurston Shrader, became acquainted with appellant Stampede Johnson a few weeks before trial. At that time both were inmates at the D.C. Jail. He testified in some detail as to various admissions and inculpatory statements of Johnson (Tr. at 1359-63) which supported the charges in the indictment.6 Shrader contacted the United States attorney himself, offering assistance in the hopes of mitigating his own three year sentence for misprision of a felony and, presumably, any punishment for pending embezzlement charges.7 There was no indication that Shrader operated as a "plant" in any contact with the prosecution or the police.
D. The Defense Evidence, Appellants Stampede Johnson, Odell Johnson, John Slade and George Marshall did not testify or offer any testimony or evidence.
Appellant Arthur Watson took the stand, identified himself as a 31-year-old part-time truck driver, and testified that he frequented the establishments in the 1800 block of 7th Street. He knew Odell Johnson from childhood and was acquainted with all other defendants. He denied the testimony of the informant Ward, attributing to him the nickname "Speed," or that he had a beard before October, 1977. While he admitted knowing Allen Whaley, he denied ever seeing Ward or ever having sold narcotics to either. He could not explain how his fingerprints happened to appear on tinfoils of drugs recovered in the investigation and admitted in evidence at the trial.
On cross-examination, the prosecutor asked Watson whether he had been convicted in May, 1976, of carrying a dangerous weapon, specifically a gun. (Tr. at 1591). Watson replied in the affirmative. His counsel moved for a mistrial claiming improper impeachment on a misdemeanor gun charge, having no connection to credibility. (Tr. at 1591). The motion was denied and the prosecutor did not pursue the questioning. Watson did not receive his requested opportunity to explain the circumstances of the conviction. Only the next morning did the court instruct the jury to disregard the fact that Watson was convicted of a misdemeanor gun charge when considering his credibility, since the gun conviction did not involve dishonesty or a false statement. (Tr. at 1721).
Appellant David Redd, a clerk typist at the Pension Benefit Guarantee Corporation since 1976, called his supervisor who gave alibi testimony that he was at work on September 29, 1977. A co-worker testified that he drove Redd to the area that day during lunch hour and waited one half hour while Redd bought heroin for himself. A supervisor at the D.C. Superior Court Narcotics Treatment Administration Office testified that the 7th and T area has a reputation as a place where drugs can be easily purchased, and that it was common knowledge that addicts pooled their money to purchase large quantities of drugs to get more for their money.
Finally, Redd himself took the stand and testified that he had been an addict before starting a methadone program, and frequented the 1800 block of 7th Street N.W. According to Redd, he socialized in the area but did not buy drugs from Whaley. He recognized himself on both the audio and video tapes of September 29, but stated that Whaley gave him money to pool in order to buy heroin for the two of them. II. LEGAL ANALYSIS
A. Prosecutor's Use of Tapes and Transcripts
The major objection presented by all appellants is that the trial judge permitted the jury to listen to the largely inaudible tape recordings of Whaley's and Ward's drug purchases. To facilitate an understanding and so that the jury could follow the tapes with a minimum of difficulty government-prepared transcripts were shown to the jury but never admitted into evidence. We conclude that while better procedures could have been adopted for dealing with and presenting the tapes and transcripts during trial, the court's rulings do not constitute reversible error.
Admission of tape recordings at trial rests with the sound discretion of the trial court. Monroe v. United States, 98 U.S.App.D.C. 228, 234, 234 F.2d 49, 55, cert. denied, 352 U.S. 873, 77 S. Ct. 94, 1 L. Ed. 2d 76 (1956).
The first criterion for admission is that the tapes be authentic, accurate and trustworthy. United States v. Haldeman, 181 U.S.App.D.C. 254, 330, 559 F.2d 31, 107 (1976), cert. denied sub nom, Mitchell v. United States, 431 U.S. 933, 97 S. Ct. 2641, 53 L. Ed. 2d 250 (1977). There is no serious dispute here as to the authenticity of the original tape recordings or the electronically-filtered copies played in court. The government presented extensive testimony as to the collection and custody of the original tapes, see, e. g., United States v. McMillan, 508 F.2d 101, 104 (8th Cir.), cert. denied, 421 U.S. 916, 95 S. Ct. 1577, 43 L. Ed. 2d 782 (1974), as well as the techniques used in the electronic enhancement. The testimony showed that the enhanced copies, which lowered or deleted background noise, had been compared to the originals for accuracy by an experienced FBI technician and Detective Kenneth Johnson. Fountain v. United States, 384 F.2d 624, 631 (5th Cir. 1967), cert. denied, 390 U.S. 1005, 88 S. Ct. 1246, 20 L. Ed. 2d 105 (1968); United States v. Knohl, 379 F.2d 427, 440 (2d Cir.), cert. denied, 389 U.S. 973, 88 S. Ct. 472, 19 L. Ed. 2d 465 (1967). Both sets of tapes were entered into evidence.
A second criterion for admission is that the tapes be audible and comprehensible enough for the jury to consider the contents. The appellants challenge the procedure and merits of the trial judge's decision, made without listening to the tapes out of the jury's presence, to admit allegedly unintelligible tape recordings.8 As to the procedural objections, an alternative course would have been for the trial judge to verify the audibility of the tapes at pretrial rather than waiting to hear the tapes for the first time when played before the jury. Monroe, 98 U.S.App.D.C. at 234, 234 F.2d at 55; United States v. Lemonakis, 158 U.S.App.D.C. 162, 170, 485 F.2d 941, 949 (1973), cert. denied, 415 U.S. 989, 94 S. Ct. 1586, 39 L. Ed. 2d 885 (1974); Springer v. United States, 388 A.2d 846, 853 (D.C.App.1978). However, the lack of such a preliminary examination is not in itself ground for reversal. United States v. Bryant, 480 F.2d 785, 789 (2d Cir. 1973).
As to the merits, there is no question but that parts of the recordings were inaudible. The judge himself commented at times that he could not understand a word of several sections. Tapes are admissible, however, unless "the unintelligible portions are so substantial as to render the recording as a whole untrustworthy." Monroe, 98 U.S.App.D.C. at 234, 234 F.2d at 55; United States v. Jones, 540 F.2d 465, 470 (10th Cir. 1976), cert. denied, 429 U.S. 1101, 97 S. Ct. 1125, 51 L. Ed. 2d 551 (1977). This was not the case here.
Indistinct portions were clarified by a second playing and the jury listened to the tapes again during deliberation. See, e. g., Bryant, 480 F.2d at 790. The court, jurors, and counsel indicated, when asked, that they had understood relevant sections played. (Tr. at 638, 640, 644). The tapes were sufficiently clear to allow the prosecutor and counsel for defendant Jones to reach general agreement on transcripts. The tapes were narrated by Ward and Whaley and, as this Court found in Monroe (supra) problems caused by poor quality tapes are minimized when "the witness who heard the statements recorded also testifies, so that the recordings give independent support to his testimony." 98 U.S.App.D.C. at 234, 234 F.2d at 55. While appellants refer to Ward and Whaley as unreliable witnesses, the credibility issue was for the jury. Finally, though this raises another issue addressed below, the jurors had the benefit of transcripts to guide them past the background noise and irrelevant conversation. Given all these factors, the trial court did not abuse its discretion in admitting the tape recordings into evidence and allowing the enhanced copies to be played for the jury.
2. The Prepared Transcripts
Voicing objections that are somewhat parallel though more serious than those raised in connection with the actual tape recordings, the appellants challenge the propriety of the jurors' use of the government-prepared transcripts. While the transcripts were not admitted into evidence, the jurors followed the transcripts while listening to the tapes during the trial. Given the poor quality of the tapes, we assume the jury made substantial use of the transcripts. Beyond the predictable allegations that the transcripts were inaccurate, appellants Redd and Slade claim that the transcripts served as an indirect and unconstitutional method of identifying them as participants in heroin sales.
It is within the trial court's discretion to allow the jury to use an accurate transcript "to assist them in listening to (a) tape." McMillan, 508 F.2d at 105; Springer, 388 A.2d at 853. The need for a transcript tends to arise where, as here, portions of a tape were relatively inaudible and the identity of speakers was not automatically clear to a listener. United States v. Onori, 535 F.2d 938, 947 (5th Cir. 1976); McMillan, 508 F.2d at 105; United States v. Hall, 342 F.2d 849, 853 (4th Cir.), cert. denied, 382 U.S. 812, 86 S. Ct. 28, 15 L. Ed. 2d 60 (1965). Because a transcript is only meant to be a guide to evidence the tape being played it is important that the judge instruct the jurors that their personal understanding of the tape supersedes the text in ...