United States v. Frank Wingate and Kenneth Luke Smith, 520 F.2d 309

United States v. Frank Wingate and Kenneth Luke Smith

520 F.2d 309

2d Cir.

1975

Check Treatment

*1 building Co. v. United by this Court of prior dismissal 1952). rights of party complaint and all third and indemnification. contribution appeal The is dismissed. appeal a of then filed notice Plaintiff 1971, 10, pn entered June the order from party third dismissing the defendants’ County the Branch complaint against appeal, she con- On

Road Commission. in the district as the Doanes did

tends court, provision notice statutory Be- Michigan Constitution. violates America, UNITED STATES question, we consider we reach fore Appellee, properly bring may plaintiff whether may she not. hold that appeal. We party a is that general The rule Frank WINGATE Kenneth Luke appeal aggrieved by an order can iswho Smith, Appellants. g.,E. it. Lewis v. United from 75-1065, Nos. Dockets 611, 438, 54 L.Ed. 637 216 U.S. 75-1067. And, party a person a who is (1910). has been ac- decree and who a consent Appeals, United States Court of agreed relief to is not corded Second Circuit. aggrieved. g., E. Public considered 28, Argued May 1975. Freight v. Brashear Commission Service 480, Lines, Inc., Aug. Decided (1939), Pacific R.R. v. L.Ed. Certiorari Jan. Denied 25 L.Ed. 932 Ketchum, See 96 S.Ct. 858. these depart from We see no reason to us. appeal before

principles in the County Branch not sue the Plaintiff did Commission, and, the time she Road Doanes, any against the action

filed her might have had she

action two-year was barred Commission Moreover, at the of limitations.

statute party third action dis

time

missed, in its legal she had no interest thereafter She could

disposition. the legally create sufficient in

somehow aggrieved necessary an party terest appeal, an simple expedient

take assignment ag an taking an from right appeal party of its

grieved an part or the of an action

dismissal was not in real to which she

action party.2 Allegheny Air g.,

sense E. (7th 448 F.2d 1341

lines, Lemay, Inc. v.

Cir.), (1971); Cramp Ship-

565, 30 L.Ed.2d 553 February ap- identical to the claims that on based on claims 2. We observe mission Michigan appeal urged pellant filed courts a com- to this court. plaint against County the Branch Road Corn- *2 Ginsberg, (Wil- New City “man,” York implying Sheila that he had to check Gallagher, Legal Society, J. Aid before making liam his “man” final Unit, Defender Services New Federal decisions. brief), appellant City, York day, The next as arranged in the tele- conversation, Wingate, phone Heyward, Barlow, Joyce City Krutick New York Tyre met at Crotona Bar in the *3 Barlow, Katz & (Barlow, City, New York According to Heyward’s Bronx. testimo- brief, Katz, Robert A. New York Wingate said that he ny, had missed his counsel), for appellant City, of. Smith. appointed at the “man” hour but that my man “[mjaybe bring will package Fortuin, M. Asst. U. Atty. Thomas S. when he comes to the bar.” [of heroin] Curran, Atty., S.D.N.Y., U. (Paul J. S. Later, a man and a woman drove up-in a brief, Feld, Lawrence S. Asst. U. S. Toronado and green Wingate went out counsel), appellee. Atty., of to them. He then speak to told Hey- CLARK, Justice,* Associate Before ward that did not have the heroin but MANSFIELD, and Circuit HAYS $3,100 that he needed of the agreed upon Judges. $6,200 purchase price in advance. He Heyward told he would be back HAYS, Judge: Circuit shortly with the drugs. Heyward paid Wingate and Kenneth Luke Wingate Frank him and drove off in the Toro- from appeal judgments of convic About an hour Wingate nado. later re- in the tion entered United States Dis repaid $3,100, turned to the bar and for the telling Court Southern District of Heyward trict that he suspected that after a Wingate being York trial. New he was followed and would have to were convicted of conspiring and the deal. postpone Wingate agreed to heroin in violation up of 21 set Tyre to distribute call deal sometime in (1970).1 We affirm. § U.S.C. the future. Shortly thereafter Tyre called Win- I. gate Virginia from and was told to come June, 1974, Marell Tyre, who had back to New York. Tyre When arrived charged and arrested with the Airport,

been im- at LaGuardia he called Wingate cocaine, agreed cooperate portation at the Crotona Bar and arranged to of the agents Drug with Enforcement airport meet him the for the purpose He called Frank negotiating Administration. Win- of the sale of heroin. Win- headquarters DEA gate gate from Miami told him that his “man” was with negotiate began purchase for the and him and that he would bring his “man” eighth kilogram of a of heroin. airport. of an At 2:10 A.M. Wingate Tyre in June Later came to New York up and drove to the American further Wingate calls to about and Airlines Terminal. Wingate got out and quality and price Tyre. heroin to be met with He noticed two DEA During agents one of these conver- seated in a purchased. car nearby point- sations, City police New York Tyre. officer ed them out to Smith drove up Heyward, posing J. as an associ- and Robert told him to drive by the spoke Tyre, agents The ate of to see what they were doing. the price men discussed of the her- two Smith told to “hurry up.” The of payment. proceeded and the method Win- oin two case the area until they gate by made several references to his were arrested agents. DEA * Supreme of the United States 841(a)(1), Court violation of 21 Of U.S.C. §§ sitting designation. 841(b)(1)(A) (retired), and 846 but the district acquittal court directed verdicts of on these counts. appellants charged 1. The were also with two attempting to distribute counts of heroin in arrest,

After his Smith was caine user and that he brought advised of was ill when courthouse; rights by Special Agent no claim Korniloff of addiction, DEA. He heroin nevertheless told its Korni severe with- pains, he had met drawal night loff that made until the hear- Bar; ing. judge that he The district agreed the Crotona had denied the mo- get suppress. to customer; heroin for tion to sell to a that he Wingate On December the United gone get to LaGuardia to money. Attorney’s office States notified the dis- day signed The next a statement trict court mail of its intention to containing information about plans introduce Smith “written and/or the heroin and identifying obtain Win- oral statements” which he had made aft- co-conspirator.2 as his gate er his arrest. Included copy was a signed by the statement Smith with a trial judge Before the district held a proposal portions referring to Win- hearing on motion to suppress *4 gate comply be deleted to with Bruton v. his statement on the that it was 123, United 391 U.S. voluntarily. At the hearing 1620, 20 L.Ed.2d 476 (1968). The letter testified that he took Wingate assured the court any Government Wingate LaGuardia had asked testifying witnesses about Smith’s oral him for ride. He testified further that statements would be instructed to avoid he was a heroin addict and that he was mentioning anything which incriminated suffering pains withdrawal when he was Wingate. The court subsequently ap- headquarters. taken to DEA He denied proved the admission of the written conspired that he had with Wingate to statement with all mention Wingate sell heroin and claimed that signed he removed, see 2 supra, note and a defense the statement because of assurances motion for a severance was denied. agents from Government that if he did so he would be released. The Govern- At the trial the Government intro- ment witnesses denied that such as- statement, duced Smith’s redacted given, surances were also testi- Korniloff testified as to his oral state- fied that did not exhibit with- ments. The court cautioned the jury to symptoms drawal or ask for medical at- consider the statements only against tention at the time questioned. he was Smith and not Wingate. Smith pointed The Government also testify. out that did not testified and original affidavit requesting a hear- admitted that he had attempted get ing, only said that he Tyre was a co- narcotics for from a man identified 2. The text of the statement Bumpy was as follows: What’s look like? Q. Short, stocky, glasses. A. wear About you’re charged O.K. with Frank Win- “Q. 42, 43. gate conspiring you to sell heroin. Do bumps Does he Q. have on his face? charge? understand that Yeah, shaving bumps. A. A. Yes. What color is he? Q. agent you going You told the were Q. A. Black. get Bumpy, right? the heroin from is that Where Q. does he live on 223rd Street? right. A. That’s floor, A. 2nd How much heroin was it? Q. you going get How much were Q. for exactly A. Well he didn’t know what it this? thought maybe was but he must have it was you. probably’ve A. I couldn’t tell I’d eighth. an it, took money, some of took some of the if Bumpy waiting you Was for Q. last money. there was some night? Wingate supposed What Frank Q. A. No. do? you going get How were Q. in touch might A. He of. with him? up, right, you He up? set it Q. set him, gone A. Well I’d ive seen around to (The Right.’’ portions A. italicized were his house. jury.) not shown to the Bumpy’s Where’s house? Q. A. 223rd Street.

313 123, accepting He admitted Bruton v. United 391 Ray. U.S. only as 1620,1627, 135, at the Heyward Crotona 88 20 L.Ed.2d 476 $3,100 from S.Ct. narcotics. purchasing (1968). purposes of Bar for was involved in He denied Cupp, v. 394 See Frazier that he and claimed matter 1420, (1969). As airport. a ride him asked held, cautionary court in district to introduce offered counsel are ineffective under Bruton structions hearing testimony, suppression Smith’s extrajudicial only where statement objected that it had the Government but “clearly into is incul admitted at that time not cross-examined the complaining as to co-defend patory” Noting purposes. for trial “vitally important and is ant he was in already “confess[ed] case.” United States v. government’s sus- conspiracy,” the court a narcotics Catalano, (2d Cir.), The ease sub- objection. tained denied, cert. which found mitted (1974); L.Ed.2d 48 sino, United v. Cas States conspiracy. guilty and Smith 1972),

II. Frazier 35 L.Ed.2d Cf. Cupp, supra S.Ct. 1420. We argument is Wingate’s primary hold that since the statements admitted here, oral3 and admission of that the redacted, were neither clearly reversible error. written *5 inculpatory vitally as to nor im disagree. We him, case portant against the the written At time the state cautionary court’s instructions were suf again ment was introduced in his his protect ficient to sixth amendment jury, the charge judge to the district in Bruton. rights under jury consider those structed to state The written statement submitted to only in relation to ments Smith and to no made mention of Frank Win- Wingate. them as to disregard The Su solely with gate. It dealt Smith’s ef- has preme Court indicated that in such heroin Bump- to from a Mr. forts obtain structions, though ineffective against testimony of Agent sie. The Korniloff incriminating” statements, “powerfully statements made to him by as to oral effective in less may be severe circum excluded mention of also stances: quoted telling Korniloff him every “Not admission of inadmissible been asked someone that he had evidence hearsay or other can be con- get to Bar heroin for a the Crotona cus- error be reversible unavoid- to sidered tomer; he told him that he could instructions; through limiting in- able Mr. Bumpsie; from and that obtain it every almost trial occur in stances the airport arrange to the two drove in, evidence creeps inadmissible where things. . . inadvertently. It is usually addition, impor In whatever the to conclude that in not unreasonable tance of statements to the jury can case cases the and will many such Smith, they against were far from vital judge’s trial instructions follow against Wingate. case The jury such information.” disregard Glover, Relying oral Smith. The on United States v. 506 statements” Govern- Wingate argues particulars 291, (2d 1974), ment’s stated bill 298 Cir. “duty” oral prosecution to inform Smith made statements similar violated its his Second, it intended to use written statement. while trial Glover before the court strongly suggests prosecution bring him. We re- statements oral Smith’s First, potential problems grounds. argument re- Bruton to the attention ject two trial, Glover, n.14, suggestion in the Unit- court before F.2d at 298 & sponding to the impose duty prosecutor Attorney’s a did inform the it does not on the office ed States “written and/or do so. intention to use of its court recordings tape telephone (2d 1971), denied, had 652-53 Cir. cert. in which 926, 975, dis conversations 30 L.Ed.2d 799 Heyward Tyre plans with his (1972); cussed United States ex rel. Nelson v. from suppliers. Follette, heroin It to obtain 430 F.2d Cir. testimony Heyward denied, covering 1970), had the cert. meeting at Crotona Bar and (1971); Posey v. Wingate’s references to his “man.” It United 416 F.2d (5th 550-51 testimony concerning Wingate’s ar 1969), Cir. with after rival at LaGuardia tell (1970); L.Ed.2d 127 Slawek that he ing Tyre bring would his “man” v. United 960-64 Finally, it had 1969). with him. what amount (8th United States ex rel. by Wingate Follette, a confession ed to on the supra, Nelson v. defendant Big- conspired that he had indeed gins stand confessed that he and “Oliver” had heroin.4 distribute a participated robbery in and murder. objected Nelson Co-defendant to admis argues nevertheless that his sion of the confession at joint their trial should conviction be reversed because ground that other evidence identi appear to incriminate fied him as “Oliver.” rejected light when are read in him of other argument on “Biggins’ presented at the trial. Wingate statements were not clearly inculpatory points out Smith refers in both the they alone did not serve to con and oral statements to an written uni- nect Nelson with the crime.” 430 F.2d individual who participated dentified (emphasis added). Here, too, venture. In the oral statement he Smith’s statements did not incriminate to that individual as meeting also refers Wingate. Only when combined with him in the Crotona Bar and driving evidence, considerable other which amply to LaGuardia Airport. Since, with him Wingate’s guilt, established do the state argues, the evidence links him implicate ments tend to him. We hold generally narcotics that Smith’s statements were not “pow to the Crotona Bar specifically and to a erfully incriminating” as to Wingate, LaGuardia, trip with Smith the state- *6 meaning within the Bruton, and identify Wingate in effect ments as therefore could be admitted co-conspirator and their Smith’s admis- joint Smith trial proper with in requires despite sion therefore reversal jury.5 structions to the instructions. the court’s again disagree. We The courts have III. held that a defendant’s statement is ad- joint trial, missible at a with cautionary argues Smith that the introduction of instructions, even though other his statements into evidence requires the in the case indicates that an unmen- reversal of his conviction on two tioned co-defendant was grounds. First, also involved in he claims that he was the activities described in the probable statement. arrested without cause and that Trudo, United States v. 649, any statements which were pur- Wingate mistakenly argues persuaded by that his case argument was are jury solely theory submitted on the the court’s instructions were vitiated conspired prosecutor’s with Smith jury he and that remark to the that deletions testimony conspiracy “Ray” toas his with was had been made in Smith’s written statement. prove guilt. Viewing context, therefore not sufficient to his the remark in we are con- fact, clearly prosecutor the district court instructed the vinced that did not intend to jury it should consider the case of each link to the statement and that separately defendant and that it could find one was still able to adhere to the court’s guilty disregard and the other innocent. instructions to the statement in con- instructions, Wingate’s testimony Under these nection with dealings Ray strong proof with to guilt though implicate of his it did not Smith. time that he his arrest were therefore inad- first made the to suant Wong Agent under Sun v. United Korniloff missible led him to be- lieve that the car he had driven U.S. Second, airport impounded would be he contends if he L.Ed.2d did not cooperate. drugs Since no his statements were made involun- been car, found in the tarily argues in violation of fifth amend- that the possibility impoundment against self-incrimination. privilege ment was not good in are raised faith but arguments these without rather Both of as a threat to coerce him into merit. confessing. However, the record indicates only that trial, than a month before More Korniloff, response in to an inquiry by to his statements on the suppress moved Smith, told him that he would check to had been made invol- ground subject see if the car was to seizure. day began, the trial untarily. On no There is evidence of even an implicit suppress motion to made an additional have impounded threat the car if that material submitted to on the cooperate. did not Furthermore, pursuant by the Government his counsel 881(a)(4) under U.S.C. (1970), § a ve- (1970) 18 U.S.C. 3500 indicated § subject hicle is “used, seizure if or probable cause for his had been no there use, . intended for to transport, judge denied the arrest. The district or in manner to facilitate the trans- untimely proceeded motion as second portation” of heroin. In the circum- hearing question of vol- hold of this stances case it was perfectly le- untariness. gitimate for Korniloff answer Smith’s Regardless of whether second question about the car telling him untimely, it clear motion was indeed is that he would inquire have to into the probable there cause for possibility of seizure. The situation here arrest. At the time of the ar way comparable is in no to Lynumn v. rest, Wingate had been under surveil Illinois, 372 clearly appeared weeks and lance for L.Ed.2d 922 relied upon by Smith, a narcotics engaged conspiracy. be in which the mother of two young chil- Tyre that he would meet He had told dren was threatened with the loss of man,” a previ him with “his term support welfare both and the custody of supplier either his ously used describe if her children she did not cooperate. accomplice. or an arrived Spano York, v. New See Smith, meeting place with who was 315, 1202, 3 L.Ed.2d (1959) meeting with Wingáte seen later (friend police force falsely stated that Tyre Wingate Tyre. After conclud job would be in jeopardy if suspect meeting, ed their observed *7 confess). not We did affirm the holding together with casing the area of the district court that Smith voluntar- clearly circumstances were “suffi These ily confessed after he intelligently and prudent to warrant a man in be cient lieving knowingly waived his constitutional the [appellant] that had commit remain right to silent. committing offense,” an ted or was Beck Since Smith’s statements were admis- Ohio, 89, 91, v. him, against sible there is no merit in his agents and the additional contention that there was in- probable therefore had cause to arrest sufficient admissible evidence to sustain him. his conviction. At suppression the hearing, Smith testified that he had made the chal IV. statements lenged because of his with pains promises drawal Finally, Wingate that he would argues that his be returned to the “street” coopera if he conviction should be reversed because appeal, ted. On Smith claims for the the court refused to allow him to intro- meaning therefore had no Government suppression hearing testi- duce opportunity to ful cross-examine mony Wingate into evidence. claims Wingate’s involvement in a narcot as testimony that exculpatory that was conspiracy, which was the issue on ics repudiated him because his ear- sought Wingate later which introduce participation statements about lier in a testimony.7 Wingate and claimed to bystander at an the be LaGuar- innocent Mississippi, Relying on Chambers Tyre. meeting with Since dia Smith as- 284, 93 S.Ct. 35 L.Ed.2d amendment right serted his fifth to re- cases, (1973) Wingate and related ar- trial; Wingate silent at main contends suppression hearing that the testi- gues of suppression admission hear- have been ev- mony should admitted into was testimony necessary. ing meaningful of despite absence idence argued The Government successfully because it suffi- cross-examination had court in the district suppression reliability.” “indicia We disa- cient hearing testimony should be excluded be Chambers, Court gree. held the Government could cause not cross- by out-of-court admission McDonald an at the trial examine and had not he had committed the murder with opportunity had an to cross-examine him charged Chambers was be which could Wingate’s guilt as to at the hearing. by into evidence introduced defense. agree.6 self-serving by Unlike introduce, which seeks Testimony given previous at a tri statements were McDonald’s dévastat- pre-trial hearing by a present or at a al penal adverse to his ingly interest. witness is unavailable inadmissible at ly 300-01, 1038. Further- U.S. more, trial unless the issues in subsequent a McDonald, Smith, pres- unlike was are proceedings sufficiently two sim ently available cross-examination opposing party to assure ilar prosecution. Id. at meaningful opportunity to cross- Finally, independent there was the testimony when was first examine corroboration, including eye-witness tes- Peterson v. See 419, United offered. timony, that McDonald’s statements (5th 1965); 422-24 accurate. Id. at were Wigmore, Evidence (Chad 1386-87 §§ such corroboration was No introduced as 1974); bourne ed. 804(b)(1), Cf. Rule statement. to Smith’s We therefore hold (eff. Federal Rules Evidence July 1, testimony lacked that Smith’s “indicia 1975). issue The the suppression reliability” properly and was excluded hearing case was not whether district court. guilty or innocent but rath er whether Smith’s confession was made con argues that his voluntarily it so could be used in be viction should reversed because of the Government’s case prosecutorial Specifically, him. The misbehavior. argues thereby put 6. The Government also court’s and that the Government was on suppression testimony hearing should notice that it cross-examine exclusion Smith not testimony not reversible error because the on the voluntariness of confession but exculpatory Wingate’s guilt as to be- also ever, or innocence. How- indicates, testimony Judge own erased as the record cause Frankel *8 guilt. rejected request question doubt as to his we counsel’s reasonable Because accept position Wingate’s it did the Government’s that on involvement: opportunity meaningful not have the for a appropriate “I don’t think that it is for this cross-examination, we not need reach its other having proceeding. sup- We are a motion to arguments. press bring any- I now and don’t want in somebody happens thing that to think of. application is Your denied.” guilt Wingate argues that the issue of his up hearing by brought at the his counsel was

317 in his automobile to objects negoti- Attor- to the United States was Wingate. in that the narcotics deal statement summation ate the ney’s if was well aware that the jury would be the de- laws useless Thus the drug by free. The referred to was go were allowed to “individual” fendants the time statement judge jury Wingate, told the at whom Smith’s incul- district clearly were “rhetorical” as if it had pated just these statements as referred that by on the name. that it should concentrate and hold that instruction evidence. the knew the Since that “individ any prejudice to cure sufficient was to by ual” referred inevitably Smith was may by have been caused the which Wingate, Bruton cannot be avoided statements. prosecutor’s the re not Affirmed. ferred to name. Serio v. United U.S.App.D.C. 131 401 989 MANSFIELD, (concur- Circuit Judge decisions Our relied upon by ring): do not Judge Hays point in the opposite in the result in all I concur and of Trudo, direction. In United States v. Hays’ characteristically thorough Judge (2d 1971), denied, 449 F.2d 649 Cir. cert. carefully considered opinion except U.S. L.Ed.2d holding that Bruton v. Unit- portion (1972), confessions were redacted so ed they “only inculpated person the making (1968), preclude does not the L.Ed.2d the admission in no way inculpated aof defendant’s statement introduction co-defendants,” 449 F.2d at Al unless the inculpating co-defendant though there was some dispute about as the co-defendant identification effect inculpatory of the statement ad inculpated appears on the face of person in mitted United States ex rel. Nelson statement, without reference to Follette, 430 F.2d 1055 1970), in the evidence case. I believe the other statement, rule to be if the proper we concluded that light viewed in the other when to one not, the reference “Oliver” did case, clearly inculpates in the evidence conflicting co-defendant, may it not be received characteristics, physical clearly inculpate him. against contrast, Nelson. co-defendant In statement, Agent case present Special inculpating Kor- Smith’s “individual,” clearly upon inculpates testified that arrest niloff Although he had met an individual statement inculpated “said evening at Crotona charge earlier I agree, and that this had asked for the reasons stated by Judge- Bar individual Hays, to obtain some heroin him for evidence was vitally him government’s important who he intended to later case a customer Wingate, in view Airport. LaGuardia meet own admissions the other incrimina- tory evidence introduced against him. got “So both into Mr. Smith’s Indeed, even if the admission of Smith’s and went to vehicle LaGuardia Air- against Wingate statement were con- supplied). (Emphasis . . port. error, it sidered to be be- harmless yond evidence established—indeed it a reasonable doubt. I Accordingly, Other affirming undisputed join judgments “individu- of con- —that viction. Airport arrived LaGuardia al” who