United States v. Stuart Steinberg

MOORE, Before FRIENDLY and GRAAFEILAND, VAN Circuit Judges. GRAAFEILAND, VAN Circuit Judge: Appellants Stuart Steinberg, William Kaye Capo, Howard and James Parker appeal judgments from of conviction en jury tered after a in the Southern Dis of New trict York found them guilty of conspiracy to violate the federal narcot (21 ics laws U.S.C. (1970)) and, § 846 on counts, varying of knowingly using the telephone to cause and facilitate the con (21 spiracy U.S.C. 843(b) (1970)).1 Steinberg and Capo also appeal their convictions on three substantive distributing counts of and possessing with intent to distribute phencyclidine hydrochloride (“PCP”), a Schedule III substance. controlled pleaded died, guilty, conspiracy others count. Five one 1. Seven were co-defendants in the against the and the case seventh was severed. wiretap Steinberg’s 26 the On convictions intercepted appellant a call from phone Because evidence was are affirmed. Werman in which he to one Sara Kaye and Parker appellants link insufficient purchase quarter arranged conspiracy charged, Parker oil for Parker $125. of hashish ounce are reversed. convictions their that she should deliver the Werman told Steinberg’s place FACTS and that Stein- oil money her the if he give berg informant, Ricky 26, 1973, an On June dropped Werman not there. Citrola, Special Agent DEA introduced evening off, later that discussed Steinberg as Brian Noone transaction with one-ounce potential money of a man with representative Parker. Steinberg gave drugs. to invest sample During following of PCP and week gram a .21 Noone large large- efforts to make a supply that he could his expanded indicated Noone, drug. day offering large quan- The next of the sale scale quantities tuinals, hashish, two ounces of PCP for seconals and purchased tities of Noone July pound marijuana, one-half without success. $2,400, and on and Capo was one of $8,000. Appellant in of the PCP involved suppliers the Adequacy of Wiretap Applications deliveries. these and Orders conversations, telephone oc- various In Appellants Steinberg and Capo vigor- July July 10 and curring between ously assail the denial of their motion to Steinberg discussed a 20- and Noone suppress the information obtained from negoti- and also transaction pound PCP wiretap. They the contend that ap- the 50-pound of a deal for the terms ated plication for the wiretap order did not then $680,000. wiretap A installed requisite contain the “full complete telephone following which Steinberg’s on statement as to whether or not other Steinberg called and confirmed Noone procedures investigative have been tried 50-pound purchase. Steinberg also the why they and failed or reasonably ap- provide sample. a cocaine agreed to pear unlikely to be to succeed if tried or dangerous to be too ..”2 24, Steinberg On was informed 2518(l)(c) (1970). U.S.C. § See U.S.C. suppliers that a one of his hold would 2518(3)(c) (1970). § put 50-pound on the have to be transac- supplier’s the source tion because had application, which merely tracked Steinberg arrested. informed been language the of section 2518(l)(c), incor- “delay” in the Noone of PCP deal and porated by reference the supporting affi- suggested proceeding instead with a co- Agent davit of Noone. Paragraphs 4 which had also been discussed. caine sale through 9 of that affidavit describe the dismay, Steinberg progress investigation, found that of Noone’s begin- To ning with his planning cocaine which he had been introduction to Steinberg the including the Agent three to sell to Noone was of inferior PCP deliveries place. which had taken He quality. therefore called affidavit the two indicates PCP sales Kaye seeking pounds drug. of the had been initiated and arranged by he could obtain it in Kaye said California tele- and that Steinberg phone, Steinberg, on at least day upon informed the next but occasion, contacted suppliers the that he would not “do” transaction. this adequacy mentation, Steinberg of the also attacks the Appellant our discussion 2. grounds. original application wiretap is dis- renewing language similar on in the the regard adequacy Steinberg’s arguments its renewal coun- positive the Since lan- application terpart. are directed for renewal original docu- guage that used similar the occasions, Although affidavit provides of these On one manner. little factual basis for Steinberg concluding that assure them that heard Noone investigative normal present techniques not not be when a PCP had Noone expose the crime,” made, delivery was “suffice[d] Kahn, did not 153 n. suppliers that the want to aware 977, L.Ed.2d (1974), paragraphs Noone and that did not Noone meet (c) (3)(c) (1) goes The affidavit are to meet them. want disjunctive; and the arrangements Government’s (largely describe upon main reliance is been second alterna which had made for the telephonic) provided by tive statute.3 purchase. We must 20-pound PCP Based on as a previous view the affidavit practical whole and “in a experience, deliver- Noone’s fashion,” representation and commonsense Steinberg’s ies Sess., 90th S.Rep. Cong., No. supply quantity an unlimited 2d could Congressional 1968 U.S.Code an out-of-state and Admin laboratory, PCP News, p. istrative concluded that While the and his Noone be well major Government will suppliers engaged were distri- advised in a more future to include Paragraph 11 detailed factual of PCP. of the butions indicating statement the inadequacy of states: affidavit investigative techniques, other the affi investigative procedures Normal contain davit herein did enough data to in establishing have not succeeded authorizing permit judge reasonably activities full extent of the conducted other that means to conclude would be by L. related to the Stuart unlikely to succeed in revealing scope the purchase or sale controlled sub- Steinberg’s operation and his sources stances, the nor have location and supply. identity of the source of Stuart L. Steinberg’s been supply established. When one endeavors prove to a investigative procedures Normal rea- negative, it is difficult to be very specif appear to be sonably unlikely to suc- it; ic about and we are loathe to set obtaining in evidence ceed neces- impossibly burdensome standards. See following sary for the reasons: Staino, United States v. 358 F.Supp. there A. At this time is no known (E.D.Pa.1973); 856-57 United States v. to supplier access undercover and Falcone, F.Supp. 877, (D.N.J. 888-89 developing no chance of such access 1973). We are satisfied that the Govern of the covert manner in because which has substantially complied Steinberg operates; L. Stuart and mandate, statutory and we note on that My B. experience and the experi- argument oral appellants could advance Special Agents ence of other of the logical no alternative to wiretapping to Drug Enforcement Administration has ascertain the details of Steinberg’s oper dealing large shown that individuals Indeed, ation. wiretapping particular is quantities of narcotics are particularly ly appropriate when the telephone is rou in their activities wary covert and tinely relied on to conduct the criminal by surveillance Federal and State law enterprise under investigation. Falcone, personnel. enforcement Such dealers supra, 364 F.Supp. at 889. rarely keep records, very deal person- very few ally with trusted individu- Assuming arguendo that isolate themselves from als and other wiretap application was sufficient on its in the organi- individuals distribution face, appellant Capo nevertheless con zation. tends that he is entitled to a hearing supported paragraph vestigative procedures is reasonably This conclusion appear 3. un- succeed, stated: “I al- likely Noone dangerous in which of the affidavit or are too be para- lege in the numbered the facts contained used (c) Normal in- graphs to show that: that, therefore, conversation related of certain truth statements test interceptions illegal were un subsequent be entitled to To such a made therein. 2518(1)(d)(1970). How der 18 U.S.C. “an hearing, there must be initial show extended ever, to conduct permission imposition” or other ing of falsehood clearly requested, wiretapping officer. United States judicial v. Dun affidavit Noone’s established Agent nings, that cause believe additional probable denied, 397 U.S. cert. S.Ct. type sought communications (1970). 25 L.Ed.2d the initial interception. after occur claims to have made this Indeed, very scope operations of the showing ways. in three different None the affidavit made it highly described His claimed “discrepancy” persuasive. is numerous likely narcotics-related Steinberg’s open dealings between place would take in the communications allegation Noone’s of covert Noone Congression U.S.Code future. discrepancy was no at all operations in News, supra, Administrative p. al and Steinberg’s suppliers were con sofar argument His that failure cerned. Finally, Steinberg contends that true nature of Ricky disclose Citro language wiretap order was not relationship with the la’s Government sufficiently precise, either as to scope or misrepresentation by constituted omis duration, comport with Fourth assumption sion is defective requirements Amendment as set forth in recognized Citrola as a source Noone York, Berger v. New 388 U.S. sought to be the information obtained. 1873, 18 L.Ed.2d (1967) S.Ct. say did not that there was The affidavit States, Katz v. United undercover access to Steinberg no known (1967). 19 L.Ed.2d 576 This was no but rather known ac Judge claim without merit. Stewart’s Steinberg’s suppliers cess to because of authorized wiretapping, with August 6, On operandi. modus well progress reports at five-day intervals: affidavit, of the Noone after the date Steinberg himself indicated that Citrola Until communications are intercepted have to be introduced to Stein- which reveal the details of the scheme suppliers. Finally, we berg’s decline which has been used by Stuart L. invitation to find a Capo’s misrepresen yet and others as unknown, distribute, from Noone’s failure to tation mention possess to deliver and 1973, 10, was that on observed the intent to distribute and otherwise Jordison Agent DEA by entering illegally Stein- deal in narcotics and danger- building. berg’s apartment There is no drugs, ous confederates, and the identity of their that Noone was indication aware of this their places of operation, prepared he his fact when affidavit nor the nature of the conspiracy in- Capo’s any identity evidence or his period volved therein or for a of twen- supplier role as a known even (20) to ty days from the date of the or- at the time of the Jordison wiretap ap der, whichever is earlier. We conclude that

plication. Capo has When, here, as a continuing showing prerequisite not made to a involved, course of criminal conduct is av, hearing veracity on the of the Noone wiretap order must necessarily be affidavit. flexibly enough permit to framed ception inter Steinberg’s remaining arguments “any of statements concerning relating wiretap application to the and specified pattern of crime.” United disposed of briefly. order can be He ini Tortorello, 764, v. F.2d tially application asserts that the denied, neither (2d Cir.), 866, cert. 414 U.S. requested, 63, nor set forth justifying, (1973). facts 38 L.Ed.2d 86 S.Ct. also interception Poeta, of communica v. continued United States 455 F.2d after the first (2d 1972). Though tions overheard narcotics- Cir. the instant general terms, and his expert was couched the inter- witness had no knowledge thereby drugs how ceptions authorized of clearly were affected or him how purpose to of them he limited duration the much took in 1973. There proof narcotics offenses described. was thus no drug This was intoxication satisfy times sufficient Fourth Amend- which were relevant ongoing Steinberg, context an drug therefore, ment crimes. received a Judge operation. charge more favorable Stewart’s use of inter- than that reports which he im as means of was entitled. imparting max- specificity which, imum into an order Steinberg also claims error in necessity, broadly phrased had be re- trial court’s charge refusal any moved doubt on this score.4 Steinberg’s allegedly susceptible mental by state drug caused intoxication could Charge be considered in weighing the induce entrapment element defense. trial, Steinberg sought show At do agree. We not Inducement is not that, his chronic due to intoxica- by showing established how little it tion, specific he lacked intent re- particular would take to cause a defend crimes with quired by the which he was ant to Rather, commit crime. the fo charged. Although judge charged cus is on the nature and extent of the issue, he also requested on included Government’s invitation. United States insanity in an instruction Riley, v. 363 F.2d (2d 957-58 Cir. only Kaye. In applicable which 1966); United Sherman, States v. doing erred. Steinberg’s so lack of (2d F.2d 882-83 Cir. 1952). Here defense, specific intent based on as- the Government did not seriously dispute condition, serted abnormal mental while that, to Judge use some of words, Hand’s similar to the superficially mental defect initiated, it broached or suggested the Kaye, disease defense relied on by commission of the offense charged. legally distinct less difficult to es- Steinberg’s real contention seems to be Brawner, tablish. United States that, rather because of his drug addic U.S.App.D.C. 998-1003 tion, acts that would normally constitute Freeman, (1972); United such uncontradicted evidence propen (2d 1966). Cir. sity as to eliminate any need for an en require The error does not rever trapment charge should not be so re sal, however. court offered to cor However, garded. in United States v. charge, although not pre rect Henry, 417 F.2d 267 cert. manner desired counsel. cise More to denied, point, do not we believe that Stein- (1970), L.Ed.2d 136 rejected we a similar berg requested was to charge entitled contention even in a case where the de defense, which at all. This has a most allegedly fendant was experiencing with to application continuing a limited course drawal symptoms. Steinberg’s, required conduct like of Clark, proof. See United States v. 498 Wire Violations Offenses 535, (2d 1974). Although F.2d 537 Cir. evidence that Steinberg there was used Each appellant was convicted on one drugs, lay witness testify did not as or more counts of using a communica- specific intoxication, drug instances of facility to tions “in committing or Steinberg argues 20, August order, also that the renewal of the August 20 the 20 1973, unconstitutionally incorporated by order extension renewal was reference the limita scope language original tion broad because it a of authorized flat the order. United 10-day original Bynum, 832, of States extension the v. (2d 475 F.2d without 835 Cir. stating interceptions further must cease vacated remanded other objective grounds, upon 903, of the attainment of autho- 2598, the 417 U.S. 94 S.Ct. 41 2518(5) (1970). (1974). rization. See 18 U.S.C. L.Ed.2d § As a 209

1133 ” felony of a Id. at mission causing the commission of any act or 843(b) 4616. Our construction of is § a constituting felony” under the acts with wholly consistent this 21 statement of 843(b) (1970). laws. U.S.C. § narcotics purpose. instance, legislative the “act constituting a In each conspiracy “the set felony” was forth in the of indictment. Appel- One” Conspiracy

Count Issues that the Steinberg 843(b) contends lant § again, we are met with Once the claim charge crime to counts fail because a single conspiracy charged of multi- “agreement” conspiracy is an an and not proven. See, conspiracies g., e. Unit- ple meaning 843(b). within the of “act” § 1191, Miley, v. 513 ed F.2d States 1205 by this supports claim comparing He 1975). again, (2d Once after Cir. review- predecessor, 843(b) its 18 U.S.C. § record, we ing jury the conclude that the 1403(a) (1964), proscribed which use of § to find but single was entitled conspir- facility in committing a communications acy. constituting acts “any act or an offense The evidence satisfactorily es to commit an conspiracy or a offense ” appellant tablished was Emphasis added. The failure figure key the middleman in an or carry conspiracy of language to over engaged ganization large scale 1403(a) is successor said evince § PCP of and cocaine. distribution His to make narcotics an intent not conspira- supply sources included subject facility cies communications four Capo and at least other individuals charges. guilty to the pled conspiracy who charge. reject argument. We We of the quantities In view substantial in why making of a con reason no see volved, knowledge of the vertical scope any agreement is an less spiratorial operation may reasonably of the be im 843(b) meaning within § “act” co-conspirators. to the individual puted the actual distribution narcotics. than hardly have They could believed acts, 843(b) proscribes not overt Section amounts of large drugs by received acts. Steinberg were not be resold. United 490, v. 485 Bynum, States 495-96 Moreover, the result contended 1973), vacated (2d remanded on at totally odds 903, grounds, other U.S. S.Ct. Comprehen purpose of general 2598, (1974). Moreover, L.Ed.2d Prevention and Control Drug sive Abuse. ample evidence demon 1970, 801 et seq., U.S.C. Act of the conspir strate their awareness of strengthen existing law sought which scope. horizontal acy’s See United authority field enforcement Borelli, v. States H.R.Rep. it. abuse, not weaken . Cir.), sub Cinquegrano cert. denied nom. Sess., 91-1444, Cong., 2d 1970 U.S 91st States, v. United Administrative Congressional Code (1964); 13 L.Ed.2d United 4657. Here canons pp. News supra, Miley, 513 F.2d at 1207. give way to must construction statutory Indeed, most of individuals on the sense. common supply level were mutual friends. 25 S.Ct. Whitridge, Although the (1905). judge justified Surely, if Con L.Ed. the case submitting to carve conspiracy jury intended to the on the gress had single theory conspiracy, a clear break of a 843(b), such this does of § out appellants as to prompted Kaye have some not end the case law prior Parker. Because there was However, only and insuffi discussion. legislative appellants evidence that these 843(b) legis cient “en reference specific in, tered, prohibition a or participated furthered the history concerns lative Cianchetti, v. United States facility conspiracy,” a communications using against 584, (2d 1963), 587 F.2d Cir. we re- facilitating the com- 315 committing “in 1134 conspiracy degree uisite of participation

verse their convictions and in a conspi venture, see their substantive ratorial United facility communications States v. convictions, predicated 471, which are Ragland, (2d 375 F.2d 1967), there- 477 Cir. denied, 925, cert. 390 on. U.S. 860, (1968); 19 L.Ed.2d United v. States Although Kaye did tell Steinberg that Fantuzzi, (2d Cir. get pounds of he could cocaine in 1972); provide does it a sufficient nor minutes,” “in California fifteen he was basis for the admission hearsay state Steinberg that skeptical actually was in- alleged ments of co-conspirators. Id. 50-pound a deal. Moreover, volved in Purin, F.2d get reluctant involved in a trans- (2d denied, cert. Cir. magnitude action of the proposed by 94 S.Ct. (1974), L.Ed.2d 233 Steinberg because he feared Mafia in- Government, relied on is factually volvement and “didn’t want to be inapposite to this case. Following Steinberg’s killed.” second Kaye call, unequivocally We believe that disassociated Parker’s motion for a from the himself venture and new trial should have days granted, four been later to Steinberg reiterated we that he remand District Court for this nothing “wanted to do with purpose. it.” Proof of Kaye’s involvement in being the conspiracy totally absent, we Cianchetti, As in United su- justice think the interests of are best 587-88, 315 F.2d at rather pra, than re- by directing served a judgment of ac- vealing a stake in the outcome of the quittal him. as to It is so ordered. Kaye’s conspiracy, statements were Judgments of conviction as to the de- at best. There was equivocal no “fixed Steinberg fendants are af- agreement” participate; and while Judgments firmed. of conviction as to may not Kaye’s motives have been the defendants Kaye Parker and are re- laudatory,” “wholly the fact remains versed with directions. context, abstain. In that he did Id. this Kaye’s exculpatory false statement upon FRIENDLY, HENRY J. Circuit Judge about his his arrest connection with (concurring and dissenting): Steinberg is entitled to little weight. join I in the majority’s disposition of Kearse, United States v. appeal except for its directing of a 1971). new trial of Parker after correctly re- The case Parker is more versing proof for lack of his convictions purchase troublesome. Parker did conspiracy on the count related quantity drugs, small and count of a for use communications facili- to some participated extent in this trans- ty in furtherance of the conspiracy. My However, proof action. no brother opinion Van Graafeiland’s con- part Steinberg’s opera- this was vincingly demonstrates Govern- except that Parker telephoned tions proof failed par- Parker’s Steinberg’s apartment regarding ticipation in the conspiracy and that an and the purchase hashish oil was de- acquittal ought to have been directed. paid livered there and for with money Although Bryan States, v. United by Steinberg. Parker loaned to There 70 S.Ct. 94 L.Ed. 335 was no evidence Parker resold the (1950), power sustains our to direct a fact, drug Steinberg. In new trial than judgment rather of ac- party a third that Parker told was the quittal circumstances, such under it does for “oil.” man to see power not demand that the be exercised proof demonstrates in a little case like Parker’s where there is no more than that Parker and Steinberg thinking, reason for as the majority of were friends and fellow there, users. Appeals As the Court of did that “the sociation a conspirator, defect might without in the evidence be supplied ” more, is insufficient to establish the req- on another trial. . U.S. at 321. For a still more 70 S.Ct. Bryan, reading see United restrictive Howard, (9 1970) (concurring opinion of Judges Hufstedler). At the very least

Ely court should be left free to

the district decide, Justices Black and sug- Reed Bryan, 70 S.Ct.

gested light of this court’s opin- whether granted trial should be

ion a new acquittal entered with re-

judgment Government, to Parker.

spect free,

course, desire, it should so if new indictment of

seek a Parker for the offenses indicated its evi-

substantive

dence. MANUFACTURING CROSS RED CORP., Plaintiff-Appellant, COMPANY,

TORO SALES

Defendant-Appellee. 73-1900.

No. Appeals, Court of Circuit. Seventh 23, 1974. Sept.

Argued Nov.

Decided 8, 1975. Denied Dec.

Rehearing

Case Details

Case Name: United States v. Stuart Steinberg

Court Name: Court of Appeals for the Second Circuit

Date Published: Nov 10, 1975

Citation: 525 F.2d 1126

Docket Number: 1148, 1150, 1151 and 1200, Dockets 75-1150, 75-1163, 75-1164 and 75-1166

Court Abbreviation: 2d Cir.