*1 grant- prejudice claim of a valid siders forfend a order severance in
ing a jeopardy.” 525 of double
successful claim at 258. equivocal nature view of the prosecutor’s con- opinion
trial court’s manifestly case, it would be
duct in this grant a either to judge require
unfair
mistrial, defendant would free the which allow the prosecution, or further bar in the case remain questioning
tainted adopt we were to jury. If go conduct less than
standard under constituted “over-
clear “bad faith”' conduct a result would be inevitable.
reaching”, such deliberately provokes a mis- a prosecutor
If “a more favorable order to secure convict,” Downum United
opportunity to (1963), that
States, type 372 U.S. preclude would retrial.
bad faith conduct prosecutor’s happen
And it also unfair, intentional, so overreaching is so bar- that the sanction of prejudicial so
ring prosecution is warranted. further to establish that has failed
Appellant con- engaged bad faith
prosecution here prejudice to harass
duct undertaken excep- is not the Accordingly, this
case. “over- prosecutorial
tional case in which following a dec-
reaching” will bar retrial mo- on the defendant’s
laration mistrial
tion.
Affirmed. America, Appellee,
UNITED STATES of GRAMMATIKOS, Appellant.
John 80-1065.
No. Docket of Appeals, Court
Second Circuit.
Argued May 1980. Sept.
Decided *3 (Goldber- City Young,
Michael New York Feldman, Young, Dubin New York ger, & counsel), City, appellant. Atty., U. E. D. Appleby, Richard Asst. S. Korman, Y., (Edward N. R. Brooklyn, N. Y. Stone, Atty., Harvey Asst. U. S. U. M. S. Y., Y., N. Atty., Brooklyn, E. D. N. counsel), appellee. LUMBARD, and MES- OAKES
Before KILL, Judges. Circuit MESKILL, voiding lant seeks the Judge: special parole Circuit ground terms on the that sanction is judg- from appeals John Grammatikos any not authorized under of the criminal entered ment conviction provisions for which stands he convicted. Court for the Eastern Dis- District assertions, for the last of we Save these after before Hon. trict New York trial reject appellant’s claims and affirm the jury. general and a A Edward R. Neaher judgment of conviction as modified. declaring appellant verdict was returned having guilty engaged two distinct conspiracies, involving importation each I. and distribution controlled substances in presented amply evidence violation of 21 U.S.C. §§ during 1970s, the early demonstrated *4 having perpetrated by those offenses means appellant expertise utilized the contacts and of continuing enterprise contrary a criminal had previously acquired he as a merchant to en- 21 U.S.C. Pursuant § operate seaman to far-flung establish and a penalties hanced under available the latter system procurement, for the importation provision, after the announcement of the quantities and of of distribution vast con-
general interrogato- verdict court posed substances, trolled principally Ap- hashish. which, the jury upon ries to further deliber- pellant’s operandi, required which modus ation, special returned a verdict adjudging large the services a cast of supporting of two items of appellant’s property to be for- players, arrange the acquisition, to for feit. Grammatikos was sen- subsequently an by intermediary, of a sizeable imprisonment quantity tenced to a 15 term of year of hashish for his of from sources in the East or continuing conduct a criminal Near enterprise Africa, periods provide and to lesser of North and to for incarcer- its transit for conspiracies, ation all two of which to Atlantic Gulf ports merchant were to run On all concurrently. freighters, three certain of whose crew members imposed counts the judge district lifetime were in with league appellant. Another of special parole. terms group of subordinates would smuggle then drug shipment onto the United States Before appellant this Court seeks dismiss- mainland where it would be distributed indictment, al of his a alternatively, re- throughout by the East Coast and Canada trial, mand for a the ground new that Thus, appellant’s network. Count Two of consensual of tape recordings his conversa- superseding indictment averred that government tions a informant were January, 1971, from on ap- or about until improperly destroyed by the Drug Enforce- April, 1974, proximately appellant master- addition, ment appel- Administration. In sophisticated minded a and assigns wide-ranging lant error to various facets of the import jury court’s to and distribute multi- instructions and further con- quantities ton of In support tends the forfeiture not hashish. of is sustainable indictment, claim, because the contrary presented to Rule this 7(c)(2) of testimony the Federal Rules of Criminal coconspirators, of four unindicted Procedure, to specify property failed of vividly each whom one or illuminated susceptible to penalty. Lastly, appel- this more of phases drug operation.1 Papageorgiou, serving 1. Kostas a to merchant seaman re- the substance crewmen aboard the siding Houston, Texas, freighter in Eagle” time recounted “Eastern who secreted the September, approached by drug in ship. Papageorgiou he was aboard testified to Psaroudis, Africa, making trips one Stamatios later revealed be numerous other to North appellant’s lieutenants, persuaded one and Near and East even between 1971 and India in kilograms aid purpose procuring large venture to obtain all by hashish. structions, quantities accordance with Psaroudis’ in- of hashish and all financed and Casablanca, Papageorgiou flew to undertaken in accordance with directions re- Morocco, quanti- appellant. where he obtained the desired ceived from ty drug designated supplier, from the and wife, Trimyer, testi- Frances Psaroudis’ also conformity orders, further with his delivered significant aspects Papa- and fied verified in- pursuant conspiracy, launched of this scheme emboldened success The importation an even of 200 cluding plan conceive for the Grammatikos large plan whereby grandiose more cocaine and American pounds of South substances, including amounts of controlled possession from the constructive retrieval as heroin and drugs such profitable more Stowe, appellant’s associ- Roger one of cocaine, and distributed. imported be would following ates, pounds of hashish of 155 Three2 of charged in Count grand imprisonment Canada and arrest Stowe’s that from Octo- indictment recovery April, 1976. Save ber, May, until cache, appellant’s neither of hashish Stowe’s perpetrate a series conspired others ventures, charged part of the con- other offenses, of which the most ambitious drug Three, reached in Count set forth spiracy transport over five tons plan was a fruition. kilograms of heroin from hashish were substantiated charges These waters aboard a to American coastal Beirut Budal, Fleming paid one large measure trafficking earlier yacht originally who had informant cargo purchase. him to enabled had organize recruited been a fleet of dispersed among be was then to flotilla which was to used direct smuggle the would fishing vessels which the hashish smuggle ashore off-load Additionally, ashore. controlled substances *5 arriving appellant’s yacht heroin on the evi- and and postulated the Budal’s testi- supplier.3 schemes were from his Lebanese dence revealed that other Ayiotis offing. in in was not included however, testimony, particularly was the georgiou’s it related as n scheme, aspect ap- ship smuggling contemplated of as he was the to- shore to pellant’s operations. ber, 1973, by Cyprus. in deported She stated that Octo- to Canadian authorities with her husband to she travelled infra, original Savannah, fully Georgia, off-loading the aid As described to in the of is more charges, superseding the “Eastern Ea- five controlled substances from gle,” indictment contained having smuggled counts, including and as further recollected therein two enumerated quantities Five, appellant’s of hashish secreted aboard averring ashore Three and Counts Brooklyn along the vessels docked waterfront. conspiracies import participation in and dis- co-conspirators Two unindicted testi- other ultimately charges heroin. Those tribute in of fied detail about the domestic distribution by prior of dismissed the court to submission Roslynn cargoes. appellant’s illicit Haas re- Thereafter, jury. the the case to in accordance appellant by being in 1970 called introduced instructions, supersed- Judge with Neaher’s consort, Stowe, Roger who was himself her ing retyped and indictment was renumbered peddling. appellant’s in narcotics involved charges remaining in the order set forth commencing April, in Haas testified that Thus, adopted run- here. later July, of and until she brokered series ning to in this 1975 to referred from appellant and one transactions between Manley whereby Robert superseding opinion and revised indictment purchased latter substan- Three, originally was Count Four. as Count quantities of hashish from for tial original conspiracy, in the hashish both Also, October, from wholesale distribution. in its renumbered indictment and during Haas and on three occasions alleged form was Two. Count permitted apartment York to be used her New storage large by appellant depot aas sums met, brief, and 3. In that he had Budal testified Ayiotis had of cash he accumulated. Nestor funds, timely him with a endeared advance of concerning aspect of also testified the sales Roger No in 1970. In self Stowe Beirut in in business. He recounted that Grammatikos’ 1975, Budal, vember, February who of since Canada, spring while he unsuc- of year paid had been a infor that mant, cessfully attempted arrange appellant’s appellant’s home was summoned to 1,000 kilograms purchase of of hashish from Astoria, upon in all recom likelihood Stowe’s Ayiotis reputed his own source. further testi- There, presented to mendation. Grammatikos July, appel- he on fied until acted conspirators plot Canada, his to trans assembled lant’s behalf as a hashish retailer distributing port quantities drug. hashish and heroin to the United pound five of Answer,” yacht, a 200 foot “The dispute proceeds aboard A over his retention $250,000. purchase for appellant’s attempt he intended to of his sales led to one loading cargo place controversy, of this was to take off and the matter was mediate the sea, off the of Martha’s Vine in waters coast when informed him that resolved Grammatikos by involving yard profitable was to be met transaction heroin where “The Answer” a more part was by supervising his decision based in mony upon was corroborated the fact agent, of the En- Simpkins Drug investiga- William principal targets (DEA), forcement Administration successfully prosecuted tion had been else- gathered through wiretap where, information part and in because distaste placed by which had been Canadian authori- pro- of law enforcement officials there to ties, order, pursuant to court the tele- against ceed unconsummated or sterile con- phone chief lieutenant spiracies. respect to appellant, With a “re- Montreal, Alario. Francois subject” investigation, lated of the Boston noted, report closing the DEA’s the case Throughout with appel- his involvement investigative “Current shows status [Gram- lant, the supervision Budal was under investigation under in Re- matikos] Agent Simpkins who out operated prosecution gion hopeful with York] [New time, agency’s Boston office. At that within the Eastern District New York.” investigation DEA engaged in an “hopeful That prosecution” referred to an drug trafficking, focusing principal- certain investigation of Grammatikos in New York ly upon Roger activities of Stowe entirely for an unrelated narcotics scheme others, listing appellant as a “related importation involving the and distribution subject.” From time to time in the course metropolitan of heroin in the area. In ac- assignment, supplied of his Budal was practices, cordance with agency Agent Agent Simpkins with with which cassettes Simpkins February completed a telephone to record conversations with vari- 48s, number of directing DEA Form ous conspirators. taped Budal ten between custodian of-evidence dispose of all evi- twenty conversations with dence relating to the aborted Boston in- and several others with After hav- Stowe. quiry. submitting Prior to these reports, ing recordings, made these Budal would Agent Simpkins counterpart notified his meet Agent Simpkins at some place York, Noone, New Agent Brian in- Cape between Cod Budal’s home and his *6 destroy tention to the evidence accumulated supervisor’s Agent office. Simpkins Boston by the Agent Boston office. Noone voiced that, testified having returned to DEA objection. tapes no were Budal actual- headquarters, he copy would make a of the ly disposed later, of some five months on recording, place original and then in an 20, July pouch storage evidence with the agen- cy’s evidence custodian. He thereafter 25, 1978, April On an indictment was times,” would replay copy “numerous up handed in the Eastern District of New and make detailed handwritten summaries York charging conspiracy to of the erasing conversations before du- import and approximately distribute five plicate recording. of the kilograms of heroin. The indictment was 1978,
In February, sealed and a ap- the United At- bench warrant issued States torney pellant’s 1979, for the District of In February, Massachusetts arrest. a five- prosecution declined of Stowe and superseding others count indictment was filed and for the sealed, activities which included certain fac- ordered charging appellant with ets of the conspiracy continuing set forth in enterprise, Count criminal with the two Three of the superseding above, indictment. This conspiracies described and with two Budal, fishing Cape through January, 1976, small flotilla of vessels. a fell and in late efforts to Cod accomplish resident who aspect was believed to be know- this ledgeable coastline, England about the New abandoned. assigned organize aspect
was 1976, April, of the jailed Stowe was arrested and scheme. Seeking pounds in Canada. to recover 155 posses- hashish still in Stowe’s constructive sion, appellant dispatched The elements intervened to halt this venture however, Budal to Montreal as Budal was informed later that win- post with instructions to was ter that “The bail. This accom- Answer” had become icebound plished, berthing and procure with Stowe’s aid the hashish was in Canada. Efforts to a comparable apparently reconveyed importation appel- located and boat be used for the pounds of 200 lant. of South American cocaine also
1019
II.
importation
and
involving
conspiracies
was even-
Appellant
of heroin.
distribution
Failure to Pre-
A. The Government's
arraigned
April
on
tually apprehended
Tapes.
serve the Budal
indictment un-
superseding
of his indict
Appellant seeks dismissal
30,1979, the United
July
sealed. On
States
ment,
for a
alternatively,
remand
new
counsel
Attorney
in a letter to
testimony
to bar the
with instructions
property
specified fourteen items
Budal,
ap
ground
Fleming
forfei-
government would seek
which the
irreparably prejudiced by
was
pellant
pen-
the enhanced
as authorized under
ture
of the Budal con
government’s destruction
continuing crimi-
under the
provided
alties
tape recordings, which constituted
sensual
848(a)(2).
statute, 21
nal
U.S.C.
enterprise
§
a combination
material under
discoverable
indicated that
indictment
3500
of Rule
Fed.R.Crim.P.
Section
sought,
property
but no
forfeiture would
v.
Act.
Miran
of the Jencks
United States
being subject,
specifically
identified as
da,
(2d
1975),
526 F.2d
1327
Cir.
cert.
conviction,
seizure.
denied,
50
429
97 S.Ct.
L.Ed.2d
U.S.
Judge Neaher
Trial commenced before
Crisona,
(1976);
United
hearing
August,
1979. After
and a
(2d
1969),
denied,
114-15
cert.
testimony,
following
Agent Simpkins’
991,
agents
ap
to record her
conversations
degree
potential
pellant during
prej
a narcotics transaction. The
discussion that the
tape
prior
by
was mislaid
to trial
DEA
accruing
appellant
udice
herein
is of
agents, and was
not
therefore
available
magnitude
lesser
than that found in either
appellant
at trial
vehe
who testified
cases,
appel
Miranda
Bufalino.
In those
mently denied that
the conversation or
flatly
having
lants
denied
undertaken the
transaction had occurred. This Court af
they
prosecuted
being
acts
conviction,
adopting
“prag
firmed
tapes
directly
and the unavailable
bore
approach” utilized
balancing
matic
the central
issue
whether
those
District
Columbia Circuit
appellant
events had occurred.
In Miranda
(D.C.Cir.),
v. Bryant,
not deterrent material where discoverable da or Bufalino destruction sanctioning government agents destroyed by is law enforcement a pursuant to Bufalino to prior evidence investigation, of a fruitful the conclusion to that subsequent deci policy abandoned is an indictment and trial knowing that sion). reject appellant’s contention We also Here, looming. investigation, the Boston 2518(8)(a) required that U.S.C. § principal tar- was not the appellant which ten tapes to retain the subject,” “related had termi- get only but provision, year period that because to At prosecute. with a not nated decision terms, recordings only to made from applies time, investigation of the New York that to wiretaps and not consensu court ordered exclusively upon an un- centered appellant recordings. al scheme, which related heroin distribution compelling there are reasons Finally, filed a one-count indictment resulted in inculpatory. tapes believe were that the tapes’ destruc- months after the Budal two testimony important respects, Budal’s con- by the Boston case tion been ordered had telephone con- cerning the substance later, in agent. year Febru- fully It was supported by was appellant versation with superseding indictment ary, that telephone conversa- appellant himself containing allegations rele- up, was handed lieutenants which tions with his Canadian recorded Bu- vant to the conversations pursuant recorded intercepted were and dal. aspects of Budal’s recol- court order. Other Moreover, the circumstances of were corrobo- lection of the conversations any tapes tends to refute disposal of the personal by Agent Simpkins’ rated surveil- play. of evil motive or foul suspicions The detailed lance of Budal’s activities. month interval between the date the five by Agent Simpkins summaries made and destroyed recordings were ordered produced no hint of contained that directive is not com implementation of there is any exculpatory material. While they were patible with the notion that Agent no guarantee Simpkins that did not damaging contain evidence to a known to consciously unconsciously censor these prosecution. Additionally, the two investi extracts, any reason be- neither is there distinct, were, gations stage, entirely at this given so fact lieve that he would do lacking any working knowledge of the still in the inquiry was Boston regional Boston inquiry; New York weaknesses investigative stage where the DEA office have known whether could not strengths contemplated prosecu- of a tapes were incul statements on the Budal equal agents. tion were of interest patory exculpatory respect those Moreover, were obvi- the authorities there charges. Appellant’s attempt create an indictment, seeking ously not bent on an impropriety by averring aura of conscious only figure” in a “related Attorney the Assistant United States investigation primary their rather than a misled the district court believe that circumstances, target. Under these the de- tapes destroyed prior to this Court’s tapes Budal after the cre- struction is holding announcement of its in Bufalino sim- Simpkins’ ation of handwritten notes is factually since it is unsubstan unpersuasive in which ilar those cases legally because it is irrelevant. tiated and agents destroyed early notes or drafts have govern merely Bufalino reiterated reports having transposed the of their after obligation material, ment’s to retain such therein to their final information contained duty previously had been established *9 Circuit, and Circuit, reports. In such situations this in both this United v. Miran States well, Boston, da, supra, majority of other circuits as have United States v. Pollock, (D.Mass.1976); preliminary 417 1332 F.Supp. held the destruction Paoli, v. fault and have but see United 603 F.2d notes or drafts to be without States 1022 lo, 698, (2d 381 prejudice 1967) (venue).
refused to infer
to defendants.
F.2d
701
Cir.
872,
Terrell,
Bermudez,
v.
474 F.2d
877
United States
See also United
v.
526
States
Covello,
(2d
1973);
89,
denied,
Cir.
United States v.
410
(2d
1975),
F.2d
97
cert.
425
Cir.
denied,
536,
Cir.), cert.
(2d
970,
2166,
545
396 U.S. U.S.
96 S.Ct.
tapes. Likewise, period. ble the venue issue was when, not effectively raised on the second B. Jury Failure to Instruct on the retrial, day of deliberations at the in re Statute of Limitations and Venue sponse jury’s request for a reiteration Defenses. of the essential of continuing elements Appellant assigns as error the district enterprise, criminal defense counsel himself charge court’s failure to the jury that extemporaneous delivered some remarks order to convict Grammatikos it had to find interpreted could be as challenging beyond a reasonable that the doubt offenses jurisdiction or venue of the court. a period years continued into within five view of its trappings, constitutional the fed filing the indictment as evidenced by occasionally eral courts have been lenient in act, further, the commission of an overt questions finding presented of venue to be determine, upon preponder- that it had to sufficiently as to a jury warrant instruc evidence, ance of prop- that venue was tion, United v. Rodriguez, supra. States erly laid in the Eastern District of New However, the issue has been deemed be initiated, York because the offenses were where, here, waived it is not specifically completed jurisdic- furthered or within that articulated in defense counsel’s motion for tion. These claims are without merit. judgment acquittal. United States v. Where the defenses of time-bar Menendez, (2d 1979). 612 F.2d Cir. or improper venue are squarely interposed, objections, Plainly the by appel as voiced they must properly be submitted to a in lant, inadequate place were either the structed jury adjudication. United question of time-bar venue into contro Alfonso-Perez, 1362, 1364 States v. 535 F.2d versy, and the indirect manner in which (2d 1976) (statute limitations); Cir. Unit they purportedly raised does not satis ed v. Rodriguez, (2d 465 F.2d 8-9 fy the purposes underlying requirement 1972) (venue). Cir. Appellant concedes that that such matters proposed properly no timely requests written or oral for such timely requests formulated and submitted made, instructions were and the record re to charge jury. See United States v. objections veals that no were raised to the Calfon, (2d 1979), 607 F.2d Cir. court’s failure to charges include such 444 100 S.Ct. the conclusion of Judge Neaher’s instruc (1980). L.Ed.2d 771 circumstances, tions. Under these we have long and consistently Furthermore, held such issues to the court’s failure to have been waived. charge United States v. Cian in the manner now deemed chetti, (2d (stat 315 F.2d 1963) necessary by appellant plain was not error. limitations); ute of issue, United States v. regards Costel- As the limitations the sealed
1023
112,
(3d
1976);
117
Cir.
Dreyer, 533 F.2d
filed on Febru-
indictment was
298,
DeJesus,
301
1979,
F.2d
13,
appears
time it
that
States v.
520
at which
United
ary
865,
Cir.),
denied,
96
(1st
and was made
423
S.Ct.
fugitive,
was a
cert.
U.S.
arraignment
(1975); Ewing
v. United
public
126,
at Grammatikos’
C.
Criminal Forfeiture.
indictment did
as
is required
7(c)(2),
contends
under Rule
Appellant attacks the
of
for-
validity
the
identify
properties
each
the
later sub-
of
of
his property
feiture
two items of
jury
mitted
special
for their
verdict.
jury,
the
in response
interrogatories
to
Again,
disagree.
we
court,
posed by the
subject
had found
penalty.
part
pun-
the
As
of
enhanced
plain language
7(c)(2)
of Rule
prescribed
ishment
continuing
under
the
requires only
that the extent of
interest
statute, Congress
enterprise
pro-
criminal
property subject
alleged.
forfeiture
848(a)(2)
vided
21
for the man-
U.S.C. §
That condition was
here
satisfied
since the
deprivation
all
datory
profits
derived
superseding indictment announced that the
enterprise,
from the
and the loss
all
government
appellant’s
would seek all of
property affording
interest or
a source of
interest or property
enterprise
in the illicit
influence over the illicit venture.
In order
of which he
proprietor.
sole
See
to implement
provision
as
as well
Thevis,
United States v.
474 F.Supp.
penalty
similar
set forth under the Racket-
(N.D.Ga.1979);
143
Berg
States
eer
Corrupt Organizations
Influenced
stat-
doll,
412 F.Supp.
(D.Del.
1318-19 n.17
ute,
7(c)(2)
18 U.S.C.
Rule
§
1976).
validity
conten
Federal Rules of Criminal Procedure was
tion rests
his
construction
the Rule
enacted
1972 and amended effective Au-
to read “.
.
.
the indictment or the
gust
to state:
allege
prop
information shall
the .
.
judgment of
forfeiture
be en-
[n]o
erty subject
to forfeiture.” We find this
tered
proceeding
criminal
unless the
interpretation
grammatically
to be
implau
indictment or
allege
information shall
sible and to subvert the literal terms of the
extent of
subject
the interest or property
Rule.
to forfeiture.
Additionally,
31(e), Fed.R.Crim.P.,
Rule
event,
any
government’s
mandates the
submission
of a procedure fully
Congress’
satisfied
intent
special
determination,
verdict for this
amending the criminal rules so as to imple
32(b)(2)
Rule
authorizes
Attorney Gen-
procedurally
ment
its reestablishment of in
eral to seize
property upon
entry
such
personam forfeitures
21
under
U.S.C. 848
§
the judgment
of conviction.
and 18 U.S.C.
1963. As indicated in the
§
case,
In the instant
the superseding in- Advisory Committee’s Notes
1972
dictment stated that the
would
7(c)(2),
principal
enactment
Rule
ob
seek
profits
forfeiture of all
and property
jective
provide
is to
persons facing such
susceptible
penalty,
to that
and the prosecu-
charges with notice that forfeiture
bewill
prior
tor
supplied
defense counsel
sought.
Smaldone,
See United
with a bill of particulars specifying four-
(10th
583
1978),
Cir.
pieces
teen
property
subject
deemed
forfeiture.
Following
receipt
(1979);
L.Ed.2d 40
Hall,
United States v.
general verdict, the court submitted inter-
1975).
(9th
Appellant does not attack suffi seizure and enabled to marshal ciency of the evidence with respect to those evidence in defense of them. Plainly he items of property, imposition but assails the was not prejudiced properties because those of the penalty ground on the su- were specified particulars in a bill of rather has that 21 U.S.C. Court conceded Together § itself. in the indictment than any incorporate does not reference verdict, this constitutes full which special *12 of the other con- provisions re- penalty rules of the procedural with the compliance statutes, permit does not forfeitures. trolled substances garding criminal a parole. While imposition special of the such that insistence Appellant’s Solicitor General by error the confession of in itemized the indictment must be property us, v. United binding upon Chin is not upon the mistaken seemingly bottomed is 1090, (2d 1980), States, 1093 Cir. 622 F.2d pass upon jury must grand that the notion reasoning in that we the Bifulco upon find to such treat property of susceptibility the imposed for viola- special parole not be may However, of provision the forfeiture ment. continuing enterprise criminal tion the is not an essential element 21 U.S.C. 848 § judgment of Accordingly, the provision. offense, merely an additional but all conviction must be amended to vacate it Consequently, is penalty for violation. special parole. sentences of brought before which must not matter appellant’s jury. carefully We have considered grand including other claims ineffective assistance Parole Terms. Validity Special inaudibility D. of some of counsel and wiretap recordings the Canadian and find challenges the lifetime terms Appellant of merit them to be so devoid as to warrant by under imposed the court special parole in no The case is remanded discussion. counts of the each of the three order that the district court amend pro- At the time sentence was indictment. judgment of conviction to vacate the sen- nounced, Circuit, in this as well as the law other re- special parole. tences all Circuits, Fourth, in the Fifth and Tenth spects, judgment of conviction is af- term set forth special parole was that firmed. 841, 960, prohibit under 21 which U.S.C. §§ importation distribution or controlled substances, incorporated by reference OAKES, in Judge (dissenting Circuit provisions
in the
of 21 U.S.C.
penalty
part):
or an
conspiracy
forbid
§§
majority
Judge
opinion per-
Meskill’s
underlying substan-
attempt
to violate their
suasively argues
against
evidence
that
States,
tive
Bifulco v. United
600
statutes.
appellant, exclusive
informant Budal’s
(2d
1979).
F.2d 407
Cir.
testimony,
strong enough
preclude re-
is
argument
to oral
Subsequent
versal,
despite
destruction of
Budal
case,
Supreme
Court held that the
that
tapes by
DEA. And it is true
drug
distribution
statute does
tapes
testimony
nor Budal’s
neither those
imposition
special
not authorize the
of a
any way
conviction
related
—
States,
parole term. Bifulco v. United
Three
under Count Two. But
the Count
—,
100
between the destroy order to tapes and their destruction. “Standard
practice” Bufalino, is not defense under Furthermore,
DEA office had
been warned of the
Pollock,
rule Bufalino
KAYNARD, Regional
M.
Samuel
Director
(D.Mass.1976) (destruction
Eastern fact, District of New be- Appeals, United States Court fore the destruction of the Boston tapes, Second Circuit. appellant had been drug indicted other transactions. very It is at the Argued least diffi- June 1980. understand, cult to light of the admissi- Sept. Decided evidence, bility similar acts itwhy would occur to destroy Boston to tapes. these Be
this as may, it tapes deliberately
destroyed. And the fact the actual