APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal Nos. 80-00009-01, -05, -06, and -02)
Before Weis and Garth, Circuit Judges, and Miller,*fn* Judge.
Appellants Jackson, Williams, Blackwell, and Bailey were convicted by a jury of conspiracy to distribute and to possess with intent to distribute heroin and morphine in violation of 21 U.S.C. § 846(a)(1). Jackson, Blackwell, and Bailey were also convicted on one or more counts of distribution and possession with intent to distribute heroin or morphine in violation of 21 U.S.C. § 841(a)(1).*fn1 All were originally indicted on January 10, 1980, but they were prosecuted pursuant to a superseding 15-count indictment filed February 29, 1980, which included the charges in the original indictment. In addition to conspiracy count 1, Jackson was named in counts 10 through 14, Williams was named in count 9, Blackwell was named in count 15, and Bailey was named in counts 2 and 3. Counts 4 through 8 named as defendants two coconspirators, Calvin Starling and Jerome Collins (a/k/a Shotgun), who, during the interim between the original and superseding indictments, accepted plea bargains, were placed in protective custody, and testified for the government at trial. Appeals from the individual judgments of conviction and sentences have been joined for our review.*fn2 We affirm.
The leader of the conspiracy was Jackson, who gave instructions, ran the operation, and told all of the involved individuals what to do. Blackwell was a "lieutenant" or "turnman" that is, he distributed the drugs to the street dealers, received the proceeds from the sales by the dealers, and turned the money over to "the top man." Bailey, Collins, and Starling were street dealers. Williams was the "cutman," who diluted the drugs, using quinine. As a street dealer, Starling sold five to six packages of twenty heroin capsules a day, four days a week, at $25 per capsule and made a profit of as much as $700 a day. During the period July to November of 1979, Collins received heroin from Jackson on forty to fifty occasions and from Blackwell "hundreds of times." He sold from two to four packages of twenty heroin capsules a day at $30 per capsule and made a profit of $120 per package.
Officer Beverly Stewart of the Pittsburgh, Pennsylvania, police department worked as an undercover narcotics agent in conjunction with the Drug Enforcement Administration ("DEA") from the beginning of July to mid-October 1979. Her assignment was to go to different locations in Pittsburgh to purchase drugs. Between August 6 and September 3, she made approximately ten purchases of pink capsules containing heroin or morphine at Sugar Ray's bar, located in the Hill District section of Pittsburgh. These purchases, which she described in detail in her testimony, included purchases from Bailey on August 6 and 7 and from Jackson (and Collins) on August 30 and September 3; from Starling on August 8 and 9; and from Collins on August 14, 15, and 16. (This evidence relates to counts 1-8 and 10, 11 of the indictment.)*fn4 On most of these occasions, Officer Stewart was accompanied by Valerie Frazier, a police informant and heroin addict, who introduced her to Bailey and Collins and joined her in some of the purchases, including an exchange with Jackson of some clothes they said were "shoplifted" for some pink capsules of heroin.
From July of 1979 to January of 1980, Starling on forty to fifty occasions received heroin in the form of pink capsules from Jackson, which he sold. He also sold heroin received from Blackwell. He received the heroin in Sugar Ray's bar and sold it in and around the bar. On January 29, 1980, he received a package of heroin from Jackson, some of which he sold; on February 6, he paid Jackson for the January 29 package and received another one; on February 15, the procedure was repeated. (These latter transactions relate to counts 1, 12, 13, and 14 of the indictment.)
On November 12, 1979, appellants were placed under arrest, as were Starling and Collins. Pittsburgh police officers and agents from DEA conducted a raid on Sugar Ray's bar, for which they had a search warrant, where they arrested Starling for whom they had a warrant. Also arrested at Sugar Ray's was Blackwell, who had gone hurriedly to a back room followed by one of the officers, who observed him about to put a clear plastic bag of pink capsules containing heroin into a freezer and arrested and searched him, finding more bags of such capsules. (This evidence relates to counts 1 and 15 of the indictment.)
Appellants argue that the trial court erred in refusing to declare a mistrial because of the government's failure to timely provide them with the Jencks Act statement of government witness Valerie Frazier. Following her testimony, defense counsel requested production of statements pursuant to 18 U.S.C. § 3500, but the government claimed that it had turned over to the defense all statements relating to her. Three days later, as the government was concluding its case, defense counsel discovered, and the government admitted, that a statement by her had in fact, not been turned over to the defense. The court, after being satisfied that the statement constituted Jencks Act material, stated it would permit the defense to recall Frazier for further cross-examination if all defense counsel agreed. However, they were unable to agree, and the court thereupon, over defense objection, struck all of Frazier's testimony. Under the Jencks Act, the court could have declared a mistrial, but decided not to do so, being satisfied that the government's failure was not willful or in reckless disregard of its obligation*fn5 and recognizing that the statement was produced in time for the defense to further examine Frazier before the government rested its case.*fn6 We do not regard the court's decision as an abuse of discretion. Further, a comparison of the statement, which concerns the sale to Jackson by Frazier and Stewart of the allegedly shoplifted clothing in exchange for drugs, with Frazier's testimony discloses no discrepancies or omissions which would have been helpful to appellants. See United States v. Niederberger, 580 F.2d 63, 71 (3d Cir.), cert. denied, 439 U.S. 980, 99 S. Ct. 567, 58 L. Ed. 2d 651 (1978).
Williams complains that the government had blacked out several portions of the copy of a DEA report on Government witness Collins which it turned over to the defense prior to Collins' testimony, but that it was not until the end of the government's main case that a copy of the report with all portions legible was provided; that he was prejudiced by not having had the legible portions for use in cross-examining Collins. However, as pointed out by the government, the blacked-out material was neither a prior statement by Collins that was related to his direct testimony, subject to disclosure under the Jencks Act, nor exculpatory material, subject to disclosure under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).*fn7 Although Collins testified that "Williams was the cutman," while the DEA report states that "once the heroin is in Pittsburgh, Jackson cuts it at Nate Blackwell's apartment in a room of a house that Danny Williams frequents," that statement in the DEA report was not blacked out and was available for use in cross-examination of Collins. We are satisfied that there was no prejudice to Williams.
Baily asserts that the government had possession of police reports concerning a statement by Collins about his (Bailey's) having been "discharged," but that such information was not made available to his counsel prior to cross-examination of Collins. He claims that this constituted a violation of Brady v. Maryland, supra, but we are not persuaded that the so-called "Brady Rule" goes this far or that there was any prejudice to Bailey.
Bailey argues that his counsel "never presented a pretrial motion for separate trial" for him and "never, throughout the trial, requested that the Court grant a separate trial," notwithstanding that counsel for Jackson and Williams requested severance for their clients. This, he says, constituted ineffective assistance of counsel since, by being forced to trial jointly with the other codefendants, he was substantially prejudiced by subsequent events during the trial. However, this issue was not raised below and, in any event, should preferably be considered by the district court. United States v. Garcia, 544 F.2d 681, 684 n.1. (3d Cir. 1976). This may be accomplished in a 28 U.S.C. § 2255 proceeding.
Williams argues that the court denied him a fair trial by failing to grant his pretrial motion for severance and a like motion prior to his opening. However, in the interest of judicial economy and recognizing the tactical disadvantage to the government from disclosure of its case, the participants in a single conspiracy should ordinarily be tried jointly as long as "the jury can reasonably be expected to compartmentalize the evidence as it relates to separate defendants" and notwithstanding that the evidence against one codefendant is more damaging than that against another. United States v. DeLarosa, 450 F.2d 1057, 1064-65 (3d Cir. 1971). Accordingly, we conclude that the court did not abuse its discretion in denying these motions. Another motion for severance was offered after the court struck the testimony of Valerie Frazier, who had testified that Williams did not participate in the overt act charged in count 9. As to this, the government points out that Williams called Frazier to testify as part of his case, and that she repeated that Williams did not participate in the overt act. He asserts that her credibility was "shattered" and her use as a witness was "minimal." However, the jury acquitted Williams on count 9, demonstrating that he was not prejudiced from the striking of her earlier testimony.
The denial of the motions for severance was not an abuse of discretion.
Chain of Custody of Contraband
Appellants argue that the government failed to establish a sufficient, unbroken chain of custody of the contraband admitted in evidence against them and that the court abused its discretion in admitting such evidence. It is pointed out that the criminalist at the Allegheny County Crime Laboratory who received envelopes containing the evidence against them (capsules) from a police officer was unable to state whether the envelopes were sealed when received. It is stressed that the evidence was kept in an unsecured locker, which did not segregate different items of evidence and was accessible to all five criminalists in the laboratory. Blackwell cites United States v. Clark, 425 F.2d 827, 833 (3d Cir. 1970) for the statement that "an object connected with a crime must be shown to be in substantially the same condition as when the crime was committed before it can be admitted"; also Gass v. United States, 135 U.S. App. D.C. 11, 416 F.2d 767, 770 n.8 (D.C.Cir. 1969) for the statement that "it is generally recognized that tangible objects become admissible in evidence only when proof of their original acquisition and subsequent custody forges their connection with the accused and the criminal offense." However, these statements are to be read in light of the principle that such evidence is admissible if the trial judge determines that "there is a reasonable probability that the evidence has not been altered in any material respect since the time of the crime" (United States v. Luna, 585 F.2d 1, 6 (1st Cir.) cert. denied, 439 U.S. 852, 99 S. Ct. 160, 58 L. Ed. 2d 157 (1978), citing United States v. Brown, 482 F.2d 1226, 1228 (8th Cir. 1973)); further, the trial judge's determination, that the showing as to identification and nature of contents is sufficient to warrant reception in evidence of the results of a test on the article, may not be overturned except for a clear abuse of discretion (United States v. Clark, supra at 833); still further, "(t)here is a presumption of regularity in the handling of exhibits by public officials" (United States v. Coades, 549 F.2d 1303, 1306 (9th Cir. 1977), and the trial judge is entitled to rely on that presumption (United States v. Luna, supra at 6). Considering the foregoing and the government's detailed evidence of careful handling of the capsules by police officers and laboratory criminalists, we are persuaded that the court did not abuse its discretion in admitting the evidence.
Conspiracy count 1 of the indictment includes morphine as well as heroin. Overt act 2 of count 1 charges that on or about August 7, 1979, Bailey knowingly, willfully, and unlawfully distributed a quantity of morphine; and count 3 charges that on or about August 7, 1979, Bailey knowingly, willfully, and unlawfully distributed and possessed with intent to distribute a quantity of morphine. Jackson argues that there was no testimony showing "any understanding, agreement or offer to sell morphine relating to any of the appellants or government witnesses" and that "there was not sufficient evidence of conspiracy to distribute morphine which would warrant submission of said matter to the jury."
As related in Jackson's brief, Officer Stewart testified that on August 7, 1979, she approached Bailey and asked him for two "things" "meaning heroin"; that she gave him $60 and received two pink capsules which, when tested by the Allegheny County Crime Laboratory, turned out to be morphine; that on August 8, 1979, she approached Calvin Starling and asked him for two "things" of heroin, gave him $60 and received what she believed to be heroin in two pink capsules which, when tested, was morphine. In his brief, Jackson admits that there was testimony that heroin allegedly purchased from Bailey and Collins and found on Blackwell was packaged in pink capsules and that this was "the normal method of packaging by the alleged co-conspirators during this period of time." However, his brief overlooks that both sales were made at Sugar Ray's bar, the site of numerous heroin sales, and that Stewart followed Bailey into the bar at the time of the first sale and observed him retrieve a plastic bag, following which he came over and gave her a second pink capsule. Also, it is significant that the sales were made by two different coconspirators at two different times.
Under the circumstances, we conclude that the court properly refused to strike "morphine" from conspiracy count 1. It was not necessary to show that Jackson explicitly agreed to distribute or to possess morphine. United States v. Powell, 564 F.2d 256, 258 (8th Cir. 1978). Nor was it necessary that each member of the conspiracy be shown to have dealt with the same drugs. United States v. Mallah, 503 F.2d 971, 976 (2d Cir. 1974). As said in United States v. Perry, 550 F.2d 524, 528-29 (9th Cir. 1977):
For the convictions to stand, the government must produce enough evidence to show that each defendant knew or had reason to know the scope of the distribution and retail organization involved with the illegal narcotics, and had reason to believe that their own benefits derived from the operation were dependent upon the success of the entire venture.
Appellants point to the newspaper, radio, and TV reports concerning the trial which appeared between commencement of trial on May 15, 1980, and May 19, when trial was scheduled to resume following a weekend recess. In chambers, before resumption of trial, defense counsel called the court's attention to the reports, and counsel for Williams asked the court to examine the jurors, who were unsequestered, individually to ascertain whether they had read or heard anything about the case. The court, observing that it had "specifically, on more than one occasion, instructed the jury that they were not to read any newspaper accounts concerning the trial or listen to any radio or television accounts," said that it would "inquire as to whether any of them have (read or listened to newspaper, radio and TV reports)," but would conduct an individual voir dire of only those jurors who said they had been exposed to publicity about the case. When the trial resumed, the court said:
Members of the jury, I want to again instruct you that during the course of the trial you must not discuss the case in any manner among yourselves or with anyone else, and you must not permit anyone to attempt to discuss it with you or in your presence, and insofar as the lawyers are concerned as well as others whom you may come to recognize as having some connection with the case, you are instructed that in order to avoid even the appearance of impropriety you should have no conversation whatever with those persons while you are serving on the jury.
You must also avoid reading any newspaper articles that might be published about the case now that the trial is in progress, and you must also avoid listening to or observing any broadcast news program on either television or radio because of the possibility that mention might be made of this case during such a broadcast.
The reasons for these cautions, of course, lies (sic) in the fact that it will be your duty to decide this case solely on the basis of the testimony and evidence presented during the trial without consideration of any other matters whatsoever.
If at any time during the trial you read or hear something outside the courtroom that you think will influence your decision, please bring it to my attention through the bailiff, Mrs. Flaherty.
Have any members of the jury since the beginning of this trial read any newspaper accounts or heard or listened to any radio or television ...