United States v. Wyadell Edmonds

man- minimization six, in obedience America, Appellee, 2518(5).

date, § U.S.C. STATES of Title UNITED interpretation of this Circuit The broader precise and and course, automatic

is, less EDMONDS, Wyadell judgment of the trier of much leaves Defendant-Appellant. and, my flexible It is more the case. 562, Docket 75-1323. No. adapted to federal- much better opinion, Appeals, United States Court joint and It re- action. cooperation state Circuit. Second in finding restraint close and сare quires Argued Dec. 1975. similarity between like relationship and The broad con- federal offenses. state 7,May Decided liberally so not be exercised cept should relationship of relevant close statutes is not plainly federal state faces, their and the initial war-

apparent made,

rant, tap which the pursuant to ‍​‌‌‌‌‌​‌‌‌​‌​​‌​​‌‌‌​‌​​‌‌​​‌​​‌​​​‌‌‌‌‌‌​​‌​‌​​‍include criminal con- sufficient

should be in both the state and federal

duct described is doubt as to the If there similar-

statutes. relationship, further review and

ity close “a competent jurisdic-

approval be obtained.

tion” should applied

The district law of

Circuit, Tortorello, as stated supra,

Rizzo, supra, at the time it entered the of conviction. There

judgments is much said in favor some can be modifica- aрplicable law direction

tion of majority opinion it but

indicated applied prospectively only; be

should change should considered members court.

active was, opinion, my Conner correct the motion to suppress the evi- denying the judgments on all counts all of

dence should be affirmed. conviction Taylor, New City,

W. Kirkland York defendant-appellant. ‍​‌‌‌‌‌​‌‌‌​‌​​‌​​‌‌‌​‌​​‌‌​​‌​​‌​​​‌‌‌‌‌‌​​‌​‌​​‍Sear, H. Asst. Atty., U.S.

Thomas S.D. Cahill, (Thomas Atty., J. John C. N.Y. Sabetta, S.D.N.Y., Atty., Asst. U.S. of coun- appellee. sel), for OAKES, VAN GRAAFEILAND Before MESKILL, Judges. Circuit MESKILL, Judge: Circuit appeals judg from a Wyadell entered in the of conviction ment Court for the District Southern Dis York after a three day jury of New trict Owen, Judge, finding Richard before trial guilty knowingly рossess defendant intent to distribute in viola ing heroin 812, 841(a)(l), of 21 U.S.C. §§ tion Edmonds was 841(b)(1)(A).1 sentenced to imprisonment years’ twelve be followed special parole. years’ by three manufacture, distribute, 841(a) (1) dispense, pertinent § U.S.C. states or part: manufacture, possess “Except with intent dis- or subchapter, as authorized substance;” tribute, dispense, person it shall be unlawful for controlled or knowingly intentionally— escorting As the were raises five claims appeal, On terminаl, companion out Ed- pre- the district (1) error: Steinberg spontaneously Agent have told original trial should not over sided retrial; let (2) they girl go should free since the trial assigned been nothing to do with it. Once outside refusing govern- to order the she erred terminal, Detective Balmer informed identity infor- of the disclose ment to Edmonds and Summers of their case; consti- (3) in the there involved mant rights. tutional justify cause to Edmonds’ probable no was arrest; the search of Edmonds’ (4) that was tаken Task Force Edmonds to head- unlawful; (5) was suitcase a search of produced, the suitcase quarters; surrounding the circumstances totality of alia, a black and plastic bag white inter right reveal denial of to a retrial his his containing two manila envelopes, one paper Finding merit to these no of trial. fair bag, and an packet. aluminum foil Chemi- contentions, judgment we affirm the of analysis of the contents of these pack- cal conviction. revealed substances therein to be ages grams percent 99.6 pure 8.4 heroin and 30, 1974, Detective Bal- Horace April On agents to grams commonly used dilute Drug York New Enforcement of the mer purposes. for resale Summers was heroin received two telephone calls Force Task Manhattan Precinct to taken South informant pre- a confidential who had from searched; she was released shortly be viously accurate to prоvided information thereafter. agents about narcotics transactions federal Edmonds and others. infor- involving was by Edmonds interviewed Assistant by Attorney accompanied mant stated Alan Kaufman that companion, day. would Detective Balmer carrying a female same informed of the high surrounding ounces of circumstances quality about two heroin Kaufman and, Norfolk, again receiving arrest after Virginia, Edmonds’ bus where Edmonds rights, constitutional notice appeаrance a court Edmonds had make on a nar- agent’s description stated of the charge. Detective Balmer cotics was correct and that he arrest himself did already received notification from the narcotics. use not Attorney’s Ed- District Office that Norfolk appear there in was court. was May indicted on pretrial His motions to suppress heroin consisting Balmer, team A surveillance time at of his arrest seized Drug Agents Steinberg and Enforcеment disclosure informant’s identity were other from the New Dunham after an evidentiary hearing. denied Trial Force, Task Enforcement was Drug York on began December 1974 and continued Trailways near ticket counter stationed 9,1974, December when a until mistrial was of New York Authority Port bus the jury declared because was unable to May 1, on terminal date on a verdict. agree to travel Edmonds was Norfolk. Ed- monds, carrying gray suitcase and accom- Edmonds’ important At second ad a woman later panied by identified as testimony not elicited the first ditional Summers, was at Christine arrested presented Jerome proceeding Chris Trailways ticket counter after he had re- tian, who one was in the narcotics at Norfolk; tickets to quested two Detective May with Edmonds. On business custody Balmer took pleaded guilty Edmonds’ suitcase. to a federal nareot Christian is defined as a 841(b)(1)(A) penal- Heroin controlled substance sets out U.S.C. § I, (b)(10). § 812 Schedulе 21 U.S.C. (a). of subsection ties for violation agreed cooperate with the vised such action ics offense be harmful to in exchange govern for the authorities his case. making his cooperation known to the ment’s did not testify the second assigned to his case. He testified at judge fact, only witness called trial. that, second trial on occa Balmer, was Detective tes- the defense April 1974, in late Edmonds told him sions street tified value of the diluted plans get heroin from Willie $50,000. approximately Jr., James, “Junior,” known as and take it Virginia to sell. In May, Discussion. Christian the details of related also Finally, station. at the bus Janu arrest argument 23, 1975, working while in an undercov ary precluded from case retrying Owen Christian was capacity, “wired” with er because he original recorder; tape and he went to a transmitter only Although trial merits brief discussion. apartment where he talked with Manhattan appellant concedes that the issues involved Junior, Kennedy, and Edmonds.2 Dur Jack are not complex, in his case he contends conversation, Junior the described the ing that the first trial was antago sufficiently that he sold to as Edmonds heroin 100% of its nistic in terms facts attempt and his replied he Edmonds that had not pure. himself represent that Judge Owen pure how the heroin was until known its a would have “subconscious biased attitude” analysis by police the after chemical his bias, against appellant. As evidencе of Ed After Christian and Junior arrest. sentence, points monds “harsh” the on Edmonds’ foolishness in commented denial of his request trial court’s for disclo with travelling Virginia, the heroin to Ed informant’s the identity sure of and denial stated that he trying to make for request of his more time to prepare his selling and could do so money Virgin newly appointed counsel. These claims are ia. patently frivolous. other unusual series events bears One Bryan, While in States v. 393 F.2d Prior to the commencement of mention. 1968), this Court did hold trial, Christine became the second Summers retrial of a ordinarily the com lengthy and ill from seriously the aftereffects of an case criminal should be a plex reassigned to 25, 1975, May and died. On the abortion judge, in United new trial States v. New selected, Edmonds, jury the was to be day man, (2d Cir.), denied, F.2d cert. time, first for the advised the court and the 94 S.Ct. L.Ed.2d of her government death the fact and held that such (1973), reassignment we also was to she be buried that All day. agreed required cases, in all not especially that, practical matter, as a there was no original only the those in which trial lasted get Edmonds to way the funeral in time. case, days. present In the first a few the trial, at the In summation second Edmonds’ only furthermore, days; took four nei trial began argue Summers, counsel nor his request Edmonds counsel ever been ther Edmonds, had arrested with had reassignment the to a different for planted him, heroin on ed had been the The informant, rеcord supports sugges confidential retrial. and had the no been ar- only as a pretense protect rested bias trial judge against Ed her tion identity. monds; violently indeed disagreeing Owen took care propriety argument with of that safeguard rights Edmonds’ and when that he protesting would not permit jeopardized it to disruptive them by himself his made, voluntarily behavior, absented himself from as will courtroom be discussed courtroom, although he had been ad- infra. appеaled 2. Prior to the commencement of his second has not rul- from that suppress tape Edmonds moved to re- ing. cording. The district court denied the motion argued He involves an informant. disclosure primary claim error supported determination that a trial court’s have defense of mistak required identity. was not disclose Court this proposed found government en value, identity of the confidential informant who be of dubious since the defense the authorities hаd been alerted seller for substan agent during attempted his of heroin testimony periods tial asserts to Norfolk. Edmonds evi departure by strong circumstantial supported short, Sarah Roberts was that his ex-wife concluded that dence. supplied she informant for request pos disclosure “had no real were heroin. If this assertion with the affording a sibility of defense would continues, true, then Roberts’ argument a reasonable doubt in mind of create defens- provide potential actions would juror.” 109-110. reasonable charged. First Edmonds es to the offense D’Amato, 493 Similarly, in United States v. argued have he could contends that (2d Cir.), denied, cert. 419 U.S. his suitcase “planted” Roberts (1974), paid 42 L.Ed.2d 50 95 S.Ct. knowledge then informed without agent introduced an undercover informant Second, he Edmonds claims that on him. intermediary drug purchase; an entrapment argued an defense could have present at some of ‍​‌‌‌‌‌​‌‌‌​‌​​‌​​‌‌‌​‌​​‌‌​​‌​​‌​​​‌‌‌‌‌‌​​‌​‌​​‍meet informant govern- Roberts’ status virtue ocсurring buyer between and seller. ings supplying her the heroin to agent ment any argument concluded that The Court him. informant could have cast doubt on testimony speculation; pure agent’s the error, advancing his claim of In intri that the informant was assertion the in v. Unit- language found Roviaro relies on charged in the cately involved transaction 60-61, 623, 53, States, U.S. 77 353 S.Ct. ed the simply supported by not record. 639, 628, (1957) 645 which states: 1 L.Ed.2d also, Morell, 524 F.2d United States v. See of an informer’s the disclosure Where 1975); 550, (2d States v. 557 Cir. United of of the contents his commu- or identity, (5th 1974). Hodges, 493 F.2d 11 Cir. nication, helpful is relevant accused, an or is of essential to a defense these standards Applying legal cause, of a the fair determination the ease leads us to facts of instant the privilege nondisclo- [government’s] [of his Judge not abuse that Owen did conclude give way. must sure] denying The in disclosure. discretion Soles, v. (2d 482 105 In United States F.2d support either of the offers no for record denied, Cir.), 1027, cert. 414 U.S. 94 S.Ct. claims was thwarted defenses 455, 319 (1973), 38 L.Ed.2d coun Court appellant At no time did or nondisclosure. these words were not read seled that to be any proof offer that counsel would have literalness, since Supreme with extreme the the idea that the heroin had been validated in clear Roviaro princi Court made that the that had in Edmonds’ suitcase or he planted disclosure, absolute, of far from re ple drugs any from individual who received balancing thе quired right individual’s government’s infor have been public defense against inter prepare affidavit, Indeed, an ex parte in mant. ensuring in the flow of est information. it had no informa stated government proper depend balance would The on in manner indicated that the tion case, of circumstances each re particular placed in the suitcase had been of the charged, consideration crime quiring Furthermore, than Edmonds. other anyone dеfenses, possible significance potential Roberts, counsel interviewed Sarah defense testimony, the informer’s other rele Edmonds claims the infor person 482 F.2d at 109. vant factors. mant; clarify a Owen to in letter Soles, in support also convicted for in a defendant of motion for his affidavit offense, drug had been introduced to counsel stated that Roberts at no new government implied undercover buyer, agent, an stated that she was the

710 drugs. Because source Roberts did Supreme Aguilar Texas, in v. 378 prior her involvement describe with Ed- 108, 1509, 84 S.Ct. 12 U.S. L.Ed.2d 723 business, drug damaging in- Spinelli (1964), States, v. United 393 which could have been formation elicited on 584, 89 S.Ct. 21 U.S. L.Ed.2d 637 cross-examination, defense counsel con- (1) (1969),4 informant be shown to not vinced Edmonds to call her as a witness. reliable and credible and (2) provided information demonstrates un contrast In lack any evidence derlying circumstances from than which the in speculation other counsel’s concluded centering Roberts, formant defense accused was govern- presented activity. ment in criminal engaged uncontradicted and sub- evidence that stantial Edmonds purchased The informant in instant case from the heroin Junior. Jerome Christian personally known to Detective Balmer testified Edmonds had told him in previously had supplied the authorities he April, was supposed to obtain ‍​‌‌‌‌‌​‌‌‌​‌​​‌​​‌‌‌​‌​​‌‌​​‌​​‌​​​‌‌‌‌‌‌​​‌​‌​​‍information pur which had led to five $1,200 worth of heroin from Junior. Chris- of narcotics by undercоver chases conversation, tian also related the described three seizures heroin and cocaine.5 in this opinion, Junior, earlier between Ed- fact, information from this same source monds, Kennedy and himself pu- about the February resulted product; addition, rity of Junior’s in Norfolk for drugs. arrest tape recording con- jury heard the of that proven “track record” clearly suf Such evidence, From this must versation. we satisfy the Aguilar-Spinelli ficient re conclude, Soles, supra, as we did of informant reliability. quirement disclosure request possibility for had no real Rollins, (2d Cir. affording a defense that could create a 1975); Sultan, United States v. 463 F.2d doubt the mind of reasonable a reasona- (2d 1972); United States v. juror. ble Acarino, Cir.), denied, cert. argues proba Edmonds next that no L.Ed.2d 746 existed his warrantless arrest ble cause (1969); United States Cunningham ex rel. depot.3 bus Probable cause to at arrest the Follette, v. 397 F.2d (2d 1968), 143 Cir. cert. when an officer has knowledge exists of denied, 1058, 393 U.S. 89 699, S.Ct. 21 circumstances and “sufficient war facts (1969). 699 L.Ed.2d prudent man in believing” rant a that an or being has been now turn an offense committed. We assessment of wheth- Ohio, 91, 89, 223, Beck v. 379 85 the informant U.S. er either S.Ct. detailed the manner 142, 225, (1964). L.Ed.2d 145 which 13 in the information gathered Since the sufficiently the authorities were described triggered actions the underlying cir- by an informant’s we largely tip, must first police so a cumstances could officer hearsay whether that reasonably considеr information believe that the was en- suspect the standards satisfied formulated the in criminal activity. The gaged informant suggested Appellant 3. has not Although Spinelli his arrest Aguilar involved agents because the was invalid failed to secure validity warrants, Supreme of search arguably a when there warrant was sufficient required analysis noted that the is “basi- This time do so. issue would have come cally determining propriety similar” to of Supreme ruling within Court’s recent in Spinelli arrest a warrant. v. an without United Watson, 411, United States v. 423 U.S. 96 States, 5, supra, 393 U.S. at 417 n. 89 S.Ct. at 820, 598, 46 L.Ed.2d 44 S.Ct. 4112 U.S.L.W. 589, at 644. 21 L.Ed.2d (1976), upheld public which a warrantless ar- upon probable felony rest based cause that a requirement 5. There is no “absolute” committed, being though even the authori- prior have led to must information convictions. received ties had information from the reliable Comissiong, 834, v. 429 F.2d States 836 United days prior six to the source arrest. Edmonds 1970). (2d Cir. public place in arrested a also was time receipt between of the differential confidential day. and arrest was information less than one 720 1976); Carneglia, Cir. States v. 468 following data authori United

reported denied, to be in (2d Norfolk 1972), that Edmonds Cir. cert. sub ties: 1084 F.2d 1; travel he would there bus States, May nom., v. United 410 Inzerillo U.S. before; that he evening be 1391, on the (1973). 35 L.Ed.2d 611 945, 93 S.Ct. companion; traveling with a female that he the war Edmonds also claims that of carrying high ounces would be search, headquarters, Force rantless Task heroin; person the informant quality the suitcase which the time he carried at in pos had seen ally argument arrest was unlawful. This gave The informant thus session. nar rejected. finding must Given our precise prediction when, agents cotics cause to arrest probable existed the crime would occur from and how where clearly suitcase could have been knowledge. Given the personal reliability at the bus as depot a search inci searched informant, this provided of thе information custodial arrest. United v. States dent to justify finding prob detail sufficient 467, Robinson, 218, 414 94 S.Ct. 38 U.S. engaged cause that Edmonds was able (1973). 427 In United v. States L.Ed.2d violation of narcotics activities laws. Edwards, 415 94 39 Acarino, U.S. S.Ct. v. See, States supra; United Unit Foster, (1974), Supreme Court held (7th v. 771 ed 478 1001 L.Ed.2d Cir. Furthermore, lawfully accused has been ar 1973). verified once an rested, of this information ‍​‌‌‌‌‌​‌‌‌​‌​​‌​​‌‌‌​‌​​‌‌​​‌​​‌​​​‌‌‌‌‌‌​​‌​‌​​‍the details extent the effects in his by corroborating possible that Edmonds subject place search at the were timе 1May in court Norfolk on was due may lawfully be of the arrest searched and a surveillance team at the by positioning a warrant even seized without after sub depot, where Edmonds bus female lapse following stantial arrest. attempted buy companion tickets Nor also, States ex rel. United Muhammad See folk, events accord with the key all ele Mancusi, 1970), v. tip. Draper informant’s ments denied, 402 U.S. cert. S.Ct. States, United (1971) (search of briefcase in L.Ed.2d (1959); United States v. Aсari L.Ed.2d possession at time lawful immediate ar no, Foster, States v. supra; supra. just proper when shortly rest was done effect of the The cumulative informant’s headquarters). at F.B.I. thereafter independent report police and the corrobo find unpersuasive We also probable ration was sufficient to establish that his trial “in totality” contention its cause. due process. a denial of amounted to Finally, Edmonds contends that claim, to his points оf his support government probable failed to establish trial, his unpreparedness for emo mental it cause because refused to reveal the iden Summers, the death tional distress over tity of its informant. In United States v. amount of time allowed his the insufficient Comissiong, 429 F.2d (2d 1970), 834 Cir. this trial, prepare assigned counsel for Court held that disclosure of an informant’s during his self-removal from the courtroom identity required only is when the existence Edmonds concedes that summation. While deрends cause probable entirely on the factors taken alone of these consti none reliability of the informant. Nondisclosure a denial of fair he argues tutes that where, here, is as permissible independent justifies effect granting cumulative their investigation and police corroboration con new trial. him to probable since, tributed cause “even claim our consideration of this though independent begin evidence not We [the is] noting рrinciple that defendant of itself adequate probable establish “[a] fair but cause, perfect to a trial not a constitutes a sufficient is voucher entitled [it] fabrication, States, although v. United 344 against obviously not Lutwak one.” 481, 490, 593, also, 429 97 one.” F.2d at L.Ed. complete 839. See Warden, v. Mapp (1953). A review the record convinces us requires incident grant Edmonds received fair trial us to him a new due. was trial. Finally, day argues the trial com- Edmonds was to that his coun-

On insistence mence, upon in sel’s implicating conference chambers Summers the informant rather than appellant present, calling counsel Sarah both as a Roberts “promoted” witness the government guilt court learned for minds of jurors. that Christine died After the first time Summers had above incident, defense attorney described her Kessler funeral was and that scheduled for for the record that fully stated he inter- judge sympa- hour. While was very Roberts, at which time viewed she all denied present, towards includ- thetic being informant. Counsel further stat- agreed that appellant, there was no ing he recommended to ed that Edmonds that way get Edmonds practical to the burial not be Roberts called because of damag- Asked the court if in time. he wanted a prior about her ing drug evidence dealings adjournment, replied day one which with Edmonds was certain to be elic- like to the tape recording hear he would ited on cross-exаmination. Furthermore, Jerome Christian. The judge made then that even if she had he felt admitted to tape available to made the Edmonds that informant, being she would then have morning postponed jury until selection testify able to directly been that she had afternoon. heroin in seen the just no factual There basis the record to his arrest. A more prior attractive alter- assigned support Edmonds’ claim strategy, ultimately unsuccessful, native lacked sufficient time to attorney prepare implicate Summers, counsel to Kessler, an experienced Mr. trial for trial. say We cannot dead. that this tactical assigned attorney, prior weeks rendered Edmonds’ trial unfair. choice suggested never once trial and to the court sum, the cumulative In effect of the deprived an adequate that he was prepa- egregious raised was not of such points period. ration deprived as to have apрellant nature of a During summation, the defense counsel’s See, McGovern, United States v. fair trial. suggested jury he that Christine (1st 1974); was the Summers confidential informant. Follette, v. F.Supp. 973, (S.D. interrupted summation, stating N.Y.1969). that he would not this argument allow to be Judgment of conviction affirmed. made and he refused participate the proceedings. further in fully After dis OAKES, (concurring): Circuit cussing turn of this events with counsel in the result. I concur jury’s out of the appellant presence,6 the permitted leave light of the admissions on the courtroom. cautioned the jury tape, failure any Christian to advise the return upon its that Edmonds’ voluntary of the identity defense of the informer was play part no absence its considera Any harmless error. entrapment defense tion; instruction was repeated have been unavailing would event. charge. Since the court jury exerted maxi Hampton United States, - U.S. -, in attempting effort mum to avoid 48 L.Ed.2d 44 U.S.L.W. exile self-imposed and to dimin (1976). suggestion While counsel’s effect such might ish adverse absence late Ms. was the infor Summers jury, we do not have on find that probably had effect Edmonds mant appellant offered 6. The court recess for dis- recommended that Edmonds remain in the counsel, which offer cussion was declined. carefully ascertained Edmonds’ courtroom attorney him advised that his ab- possible impact adverse ema- awareness nega- from the courtroom sence have a nating from his actions. jury. impact directly tive also had, guilt “promoting” thought it his absence from the jury, eyes request own would have at his

courtroom harm from counsel’s offset

tended to handled

tactics; Owen the matter

best he could. CARRION, Plaintiff-Appellant,

Odessa UNIVERSITY,

YESHIVA

Defendant-Appellee. 759, Docket 75-7481.

No. of Appeals, Circuit.

Second April

Argued 1976. 7,May

Decided

Case Details

Case Name: United States v. Wyadell Edmonds

Court Name: Court of Appeals for the Second Circuit

Date Published: May 7, 1976

Citation: 535 F.2d 714

Docket Number: 562, Docket 75-1323

Court Abbreviation: 2d Cir.