UNITED STATES of America, Appellee, v. Aaron WATSON, Robert Whitley, and John Muse, Appellants.
Nos. 439, 491, 513, Docket 78-1296-98
United States Court of Appeals, Second Circuit
Decided April 30, 1979
599 F.2d 1149
We therefore reverse the order under appeal and direct the district court to issue a temporary injunction. It will be sufficient if this extends only until Johncamp makes the necessary corrections and allows a reasonable period for withdrawal of stock already tendered; we see no need for the further cooling-off period that Prudent requests. While, as a general matter, the need for filing information on the financial condition of a bidder is not quite such a res nova as it was before the district court decision in Corenco, see 488 F.2d at 214-15, the applicability of Item 9 of Schedule 14 D in a situation like this was far from clear. The other two infirmities we have found seem to have been inadvertent and not at all “deliberate violations of the Williams Act,” id. Since Prudent conceded that its only reason for declining to make its stockholder list available to Johncamp was the alleged defects in the offer and Schedule 14 D, the order should direct that this be done once the corrections are made if litigation in the New York courts has not yet produced that result.
Our injunction pending appeal will remain in force until a temporary injunction is issued by the district court. The mandate shall issue forthwith.
David J. Gottlieb, The Legal Aid Society, Federal Defender Services Unit, New York City, for appellant Muse.
Robert I. Weiswasser, Brooklyn, N. Y., for appellant Watson.
Harvey J. Golubock, Asst. U. S. Atty., E. D. N. Y., Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., E. D. N. Y., Harvey M. Stone, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appellee.
Before FRIENDLY, SMITH and OAKES, Circuit Judges.
OAKES, Circuit Judge:
All three appellants claim violation of their speedy trial rights, restriction of the scope of their cross-examination of a key Government witness, and deprivation of a fair trial because of the dramatic behavior of the witness. They appeal from convictions after a jury trial before the United States District Court for the Eastern District of New York, Charles P. Sifton, Judge. The indictment was in one count charging a conspiracy between March and November of 1971 to distribute heroin and possess it with the intent to distribute it, in violation of
The Government‘s proof at trial traced the history of a narcotics “family” from 1966 through 1971. What started as the “Aiken organization” was taken over by Alvin Bynum. See generally United States v. Bynum, 485 F.2d 490, 94 S.Ct. 2598, 41 L.Ed.2d 209 (2d Cir. 1973), vacated and remanded, 417 U.S. 903 (1974). “Dickie” Diamond, a principal Government witness at appellants’ trial, worked with both Aiken and Bynum and testified to pre-conspiracy heroin purchases by appellants Watson and Muse. MacArthur Egister, another Government witness, testified to pre-conspiracy deliveries of heroin to Muse for Diamond.
The conspiracy began after Diamond was arrested for murder and jailed in February 1971. According to Egister, Muse gave Egister money to obtain heroin from Bynum, and Bynum sent Egister to see “his man,” appellant Watson, at the 432 Club on Nostrand Avenue in Brooklyn. Watson instructed Egister to pay appellant Whitley, who was at the bar, and Watson told Whitley to count the money which he did in the club‘s bathroom. Whitley asked Egister for the keys to his car, left the bar with them, returned shortly and told Egister that the car was “ready.” Egister went out to his car where he found the package of heroin that he subsequently delivered to Muse. Several similar transactions took place in which Muse bought from Egister who in turn received the Bynum heroin from Watson and Whitley. Muse usually bought one-eighth of a kilogram for $4,500 and the sales took place two or three times a day several days each week. Egister‘s testimony was corroborated by Francis DiCarlo, Special Agent of the Drug Enforcement Administration. DiCarlo conducted surveillance of the 432 Club on numerous occasions; he observed Watson at the club on approximately ten of them and almost always observed Whitley at the club. Several times DiCarlo saw Egister and Whitley enter the club together; Whitley would exit the club alone, drive away and return in Egister‘s car, and reenter the club; and Egister would then leave the club in his car.
Watson‘s case included the testimony of three witnesses, one of whom said that she saw Watson working on Alvin Bynum‘s house, another of whom testified that Watson was the superintendent of a building at 959 Park Place and was a contractor (the testimony was offered to show that the “work” that Watson did for Bynum was related to contracting, not narcotics), and a third who said that she had been sexually molested by Diamond in 1970 and that Watson and Diamond had argued over the incident. Muse testified in his own behalf that, although he had distributed heroin for Diamond and Egister in 1969 and 1970, he stopped purchasing from them around Christmas of 1970, after an argument about synthetic heroin, and he purchased or transported no heroin whatsoever in 1971. Whitley did not testify and presented no witnesses.
I. Speedy Trial Claim.
Appellants argue that the preindictment and postindictment delays in this case violated their speedy trial rights—specifically, their due process right not to be prejudiced by preindictment delay and the Sixth Amendment right to a speedy trial—and also argue that the statute of limitations itself was exceeded because the Government waited for an unreasonable length of time before unsealing the indictment. For the reasons that follow, we agree with appellant Muse that the delay here exceeded the period of limitations as to him and requires the dismissal of his indictment, but we are unpersuaded by the other objections.
The indictment in this case was returned on June 1, 1976, that is to say, it was “found” five months within the five-year period required under
Appellants argue that the fifty-five-month period of time elapsing between November of 1971 and the filing of the indictment added together with the sixteen-month period during which the indictment was sealed violated their rights to a speedy trial.
We first address the complaint that the delay in filing the indictment violated appellants’ due process rights. In United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971), the Supreme Court emphasized that the statute of limitations should be the primary protection against preindictment delay. The Court did sug-
The Government‘s affidavits showed that Diamond did not begin his cooperation with the Government until 1974 during an investigation involving the Frank Matthews narcotics organization. It was as a result of the Matthews investigation and ensuing trial, which lasted from early August until October of 1975, that the Government developed information concerning Watson‘s narcotics activities. It was also not until the conclusion of the Matthews trial that the Assistant United States Attorney who had tried that case and who was handling the Watson investigation interviewed Egister. (The office of the United States Attorney had concluded that to place a different attorney in charge of the Watson investigation would be inefficient and, indeed, would cause delay.) Both Diamond and Egister testified about Watson and his associates before a grand jury in the Eastern District of New York in mid-March of 1976, and the Government was attempting to obtain additional corroborative witnesses until the indictment was handed down in June. The district court found that “on balance, considering the reasons for the delay, I find that there was a kind of [good] faith investigative justification for the delay in returning the indictment.” In light of the circumstances just described, we cannot fault his finding. Accordingly, we hold that appellants have failed to prove a violation of their due process rights by any preindictment delay.
More troubling, however, is the additional sixteen-month delay between the sealing and unsealing of the indictment. The Government concedes that it was aware of the location of appellant Muse during a substantial portion of the sixteen months. But, it argues, because it did not wish to tip off the other defendants, the Government included Muse in the sealed indictment without seeking a separate indictment. Muse was not arrested until appellant Watson was arrested. With respect to Watson, although he was not arrested until September of 1977, the Government had attempted to locate him by use of confidential informants and surveillance both at his home and at other locations that he was known to frequent. The Government concedes knowledge of the location of this permanent address but notes that Watson had separated from his wife and lived at a different address for an unspecified period of time. There is no indication that the Government was aware that Watson had voluntarily reported to the New York police on another matter some six months before his arrest. Judge Sifton found no reason to doubt the good faith of the Government‘s effort to locate Watson and, in the light of the well-publicized flights of Frank Matthews and others wanted in connection with narcotics charges, found that it was realistic for the Government to believe that an arrest of one defendant would lead to the flight of one or more of the others. Indeed, the “John Doe” codefendant in this case known as “Youngblood” has not even now been located. As to the appellant Whitley, the other “John Doe” defendant, whom Egister and Diamond knew only as “Robert” or “Charles,” the Government learned his real name only on December 19, 1977, when an informant identified him. He was arrested that same day.
Although the delay between filing and unsealing the indictment was not so clearly justifiable as the prefiling delay, we conclude that the Government‘s efforts to find the defendants during that period were nevertheless in good faith under the standard established by Lovasco, supra. Accordingly, we hold that the delay in unsealing the indictment did not violate appellants’ due process rights.
There must be limits, however, on the Government‘s privilege to toll the statute of limitations by a sealed indictment. In this case, appellants argue that the Government acted unreasonably in waiting ten months beyond the limitations period before unsealing the indictment. Neither Whitley nor Watson were fugitives, the argument runs, and their whereabouts could have been determined, in Whitley‘s case if the Government had known his true name “Robert” or “Charles” and in Watson‘s case if it had searched a little harder. And, as noted above, the Government concededly knew where appellant Muse was and did not arrest him simply to avoid alerting the others.
We believe that when a sealed indictment has tolled the statute of limitations, the policy of repose underlying the statute demands that the Government unseal the indictment as soon as its legitimate need for delay has been satisfied. We need not pinpoint the time at which this will occur, for it will vary from case to case. At least when the defendant can show substantial actual prejudice, the Government must show that the delay is justified by a strong prosecutorial interest, not simply by a legitimate interest.
We base this standard in part on the language of
This standard is also consistent with the two reported cases interpreting the limits of the Rule 6(e) extension of the limitations period, United States v. Heckler, 428 F.Supp. 269 (S.D.N.Y.1976), and United States v. Sherwood, 38 F.R.D. 14 (D.Conn. 1964). In Sherwood, the court dismissed an indictment that was filed just prior to the expiration of the statute and was only unsealed thirteen months later. Although the court based its holding on a finding of a violation of the speedy trial right under the Sixth Amendment and Fed.R.Crim.P. 48(b), the court also analyzed carefully the policies underlying Rule 6(e) and concluded that the sealing of an indictment “must be necessary, of reasonable duration under the circumstances, and exercised only to accomplish the limited purposes authorized by the criminal rule for which it was designed.” Id. at 20. Applying this test, the court held that the indictment should have been unsealed no more than ninety days from the return date. Although two of the defendants were unavailable for the first two months of the period between the sealing and the unsealing of the indictment, the Government‘s only reason for keeping the indictment sealed during the remaining eleven months was to determine the validity of a third defendant‘s allegation that the Government had promised him immunity. That reason, the court implied, was not one of the authorized purposes of Rule 6(e).
In Heckler, supra, the court dismissed an indictment that was filed less than one month before the limitations period expired and was unsealed almost fourteen months later. Once again, the court‘s holding is premised not simply upon Rule 6(e) but also upon a constitutional provision, in this case the Due Process Clause. The court nonetheless stated: “When the defendants are available the government may not seal an indictment for more than a reasonable time after the statute of limitations has expired. A period of more than twelve months is not reasonable.” 428 F.Supp. at 272. The court concluded that the delay was impermissible because the Government failed to show that an earlier unsealing of the indictment would have affected its other investigations and because defendants demonstrated substantial actual prejudice.3
Under the standard that we have outlined, we conclude that the statute of limitations is a bar to the prosecution of appellant Muse but not to the prosecution of the other appellants. The length of delay, almost sixteen months, is substantial, but the Government‘s legitimate need to locate the codefendants other than Muse is sufficient justification, absent proof of actual, substantial prejudice. Because the record reveals that Muse was prejudiced while Watson and Whitley were not, in our view the statute of limitations ran as to him.
Muse took the stand to testify, and it was critical to his defense that he as well as the Government witnesses be able to recall specific dates. A reading of his cross-examination indicates that he was harmed by his inability to remember dates and occurrences at the time of his withdrawal from the conspiracy. He could not remember the date that he changed apartments, the date
Watson and Whitley do have a Sixth Amendment argument. We conclude, however, that the speedy trial right under the Sixth Amendment attaches not when a sealed indictment is filed but when it is unsealed (or when the Government arrests the defendant or otherwise apprises him of the charges against him).5 Thus the time
II. Cross-Examination of Government Witness Diamond.
Appellants argue that their right to cross-examine Diamond was impermissibly restricted, in violation of their Sixth Amendment right to confront the witnesses against them. When they sought to question Diamond about some of his recent activities, including his employment, whether he was supporting his family, and the price of his automobile, the court generally sustained the Government‘s objections to the questions. The Government told the court that Diamond was in its Witness Protection Program, that threats and attempts had been made on his life, and that disclosure of his occupation would jeopardize his life.
In cross-examining Diamond, counsel for appellants explored in extensive detail his criminal background: he had been a jewel thief and a fence for stolen negotiable instruments and stolen cars; he worked as a pimp who beat prostitutes; he had numerous previous narcotics dealings and convictions; he acted, after his first conviction, as both a Government informant and drug dealer; after Bynum‘s arrest he bribed a Drug Enforcement Agent to state falsely that Bynum was a Government informant, learned through this corrupt agent the identity of an informant on Bynum, and reported the name to Bynum, as a result of which the informant was killed; and he was convicted for murder in New Jersey in 1972 and subsequently pardoned (in the form of a reduced sentence) after he began furnishing information to the Government. We also note that following an in camera proceeding the court allowed Watson‘s counsel to cross-examine Diamond to show that he earned less than $6,000 in 1976 and filed no tax return for that year and earned $20,000 in 1977. Under all the circumstances, given the seriousness of the threat and the extensiveness of the cross-examination that the court did permit, we believe that the judge acted within his discretion in limiting the scope of cross-examination so as to permit Diamond to maintain his concealed identity. See United States v. Cavallaro, 553 F.2d 300, 304-05 (2d Cir. 1977); United States v. Persico, 425 F.2d 1375, 1383-84 (2d Cir.), cert. denied, 400 U.S. 869 (1970); United States v. Baker, 419 F.2d 83, 87 (2d Cir. 1969), cert. denied, 397 U.S. 971 (1970).
III. Diamond‘s Conduct as a Witness.
The United States Attorney had alerted the court and other counsel that Diamond was fearful for his life because of appellant Watson. When Watson‘s counsel attempted to question him regarding his earnings, the rent he paid, and whether he was supporting his wife and children, except as above stated the court ruled out the questions. Counsel inquired, however, as to the amount he had paid for his car. Diamond thereupon stated: “I won‘t—hey man, I ain‘t answering anything else. I am not going to put my life in jeopardy for anything.” He then stalked out of the courtroom. The court excused the jury and appellants moved for a mistrial.
The court denied the motion, in part because Diamond had not indicated that his fear for his life was directed toward the defendants. The court also noted that Government counsel had earlier alluded to Diamond‘s involvement in the Witness Protection Program, without objection by appellants, and that Diamond had testified as to a murder conviction; thus the court concluded that “it is somewhat less likely in this case that the jury would assume, despite instructions to the contrary, that the threat to [Diamond‘s] life would stem from these defendants.” When the jury returned the court gave a special curative instruction, to which none of the defendants objected, that Diamond‘s comments had nothing to do with the defendants or the case on trial. The instruction is set out in the margin.6 When the Government suggested in its summation that Diamond had left the stand because he did not want anybody to find out where he was living, the court again quickly gave a curative instruction to the effect that this was not an issue with which the jury should concern itself and that the jury should draw no inferences concerning these defendants.
Judgment affirmed as to appellants Watson and Whitley; judgment reversed and indictment dismissed as to appellant Muse.
FRIENDLY, Circuit Judge, concurring and dissenting:
With respect to the affirmance of Watson‘s and Whitley‘s convictions, I concur in the result. With respect to the reversal of Muse‘s conviction, I dissent.
Judge Oakes finds that Muse suffered “substantial actual prejudice” from the delay in unsealing the indictment and concludes that therefore the Government must show not merely a “legitimate” but a “strong” prosecutorial interest in not having obtained a superseding indictment within the period of limitations that would have led to Muse‘s arrest, which it has not done. Along with the district judge, I see nothing to prove that Muse suffered substantial prejudice and believe that the Government showed whatever interest, “strong” or otherwise, is needed to justify its having proceeded as it did.
The supposed prejudice arises from the fact that, although in his direct testimony, given in April 1978, Muse had a vivid recollection that he had stopped distributing heroin for Diamond and Egister around Christmas of 1970, a date conveniently tailored to his claim that the statute of limitations had run before the indictment on June 1, 1976, on cross-examination he professed inability to remember a number of facts, some of which were more recent and several of which were subject to verification. Even if we make the charitable assumption that Muse in fact suffered a memory lapse on these items, there is nothing to show it had not occurred before June 1, 1976, when the indictment, conceded by the majority to have been timely, was returned, or November, 1976, when the statute of limitations ran. The notion that Muse‘s lapse of memory about where he lived between 1969 and 1970 occurred in the interval between June, 1976 or November, 1976 and September, 1977 defies the teachings of psychology,1 as well as common sense. The conclusion of “substantial actual prejudice” is thus an unfounded conjecture; the case differs markedly from one where it can be shown that witnesses have died or disappeared or records have been lost at identifiable dates.2
I am even more baffled by the majority‘s conclusion of lack of “a strong prosecutorial interest.” Surely my brothers are not suggesting that the Government did not have such an interest in apprehending Watson and Whitley, members of the Bynum narcotics organization, which, in addition to numerous offenses against the narcotics laws, had engaged in “one unsuccessful robbery, together with the near fatal shooting of the victim, another aborted robbery, and an elaborate plan to murder a corrupt New York City patrolman, who was thought to be cooperating with the authorities,” United States v. Bynum, 485 F.2d 490, 493 (2d Cir. 1973), vacated, 417 U.S. 903 (1974), conformed to, 386 F.Supp. 449 (S.D.N.Y.1974), aff‘d, 513 F.2d 533 (2 Cir.), cert. denied, 423 U.S. 952 (1975). What the majority is really doing, under the cloak of this form of words, is substituting its judgment that a superseding indictment before November, 1976 naming only Muse, or Muse plus Doe and Roe, and Muse‘s arrest pursuant thereto would not have involved serious risk of tipping off Whitley and Watson, in place of the prosecutors’ judgment that it would. Muse‘s argument that there was no likelihood that he would have informed Watson and Whitley of his arrest, even if one were to accept it, misses the point, namely, the risk that Watson and Whitley, who were well aware of their traffic with Muse, would have learned of his arrest from other sources. I am not sufficiently experienced in the ways of the big-time narcotics underworld to be certain that this risk was insignificant; the narcotics cases I have observed over the past twenty years would lead me to the opposite conclusion. More important, the question is not what we think but what the prosecutors reasonably could have thought. Judge Sifton found that the delay in unsealing the indictment was the result of a “good faith . . . effort to find” Whitley and Watson; that a premature arrest of Muse might have made it impossible to locate them; and that none, including Muse, were prejudiced by the delay. We should give these findings of the trial judge, who saw and heard Muse testify and also observed the jury, the respect they deserve. While there must indeed be some limit on the time during which an indictment can be kept sealed as against a defendant who is not concealing himself, that limit was not exceeded here.
I would affirm all the convictions.