535 F.2d 714 | 2d Cir. | 1976
Lead Opinion
Wyadell Edmonds appeals from a judgment of conviction entered in the United States District Court for the Southern District of New York after a three day jury trial before Richard Owen, Judge, finding the defendant guilty of knowingly possessing heroin with intent to distribute in violation of 21 U.S.C. §§ 812, 841(a)(l), 841(b)(1)(A).
On April 30, 1974, Detective Horace Balmer of the New York Drug Enforcement Task Force received two telephone calls from a confidential informant who had previously provided accurate information to federal agents about narcotics transactions involving Edmonds and others. The informant stated that Edmonds, accompanied by a female companion, would be carrying about two ounces of high quality heroin by bus to Norfolk, Virginia, where Edmonds had to make a court appearance on a narcotics possession charge. Detective Balmer had already received notification from the Norfolk District Attorney’s Office that Edmonds was to appear there in court.
A surveillance team consisting of Balmer, Drug Enforcement Agents Steinberg and Dunham and other agents from the New York Drug Enforcement Task Force, was stationed near the Trailways ticket counter in the Port of New York Authority bus terminal on May 1, 1974, the date that Edmonds was to travel to Norfolk. Edmonds, carrying a gray suitcase and accompanied by a woman later identified as Christine Summers, was arrested at the Trailways ticket counter after he had requested two tickets to Norfolk; Detective Balmer took custody of Edmonds’ suitcase.
As the agents were escorting Edmonds and his companion out of the terminal, Edmonds spontaneously told Agent Steinberg that they should let the girl go free since she had nothing to do with it. Once outside the terminal, Detective Balmer informed both Edmonds and Summers of their constitutional rights.
Edmonds was taken to Task Force headquarters; a search of the suitcase produced, inter alia, a black and white plastic bag containing two manila envelopes, one paper bag, and an aluminum foil packet. Chemical analysis of the contents of these packages revealed the substances therein to be 8.4 grams of 99.6 percent pure heroin and 38 grams of agents commonly used to dilute heroin for resale purposes. Summers was taken to the Manhattan South Precinct to be searched; she was released shortly thereafter.
Edmonds was interviewed by Assistant United States Attorney Alan Kaufman that same day. Detective Balmer informed Kaufman of the circumstances surrounding Edmonds’ arrest and, after again receiving notice of his constitutional rights, Edmonds stated that the agent’s description of the arrest was correct and that he himself did not use narcotics.
Edmonds was indicted on May 10, 1974. His pretrial motions to suppress the heroin seized at the time of his arrest and for disclosure of the informant’s identity were denied after an evidentiary hearing. Trial began on December 5, 1974 and continued until December 9,1974, when a mistrial was declared because the jury was unable to agree on a verdict.
At Edmonds’ second trial, important additional testimony not elicited in the first proceeding was presented by Jerome Christian, who at one time was in the narcotics business with Edmonds. On May 16, 1974, Christian pleaded guilty to a federal nareot
One other unusual series of events bears mention. Prior to the commencement of the second trial, Christine Summers became seriously ill from the aftereffects of an abortion and died. On May 25, 1975, the day the jury was to be selected, Edmonds, for the first time, advised the court and the government of her death and the fact that she was to be buried that day. All agreed that, as a practical matter, there was no way to get Edmonds to the funeral in time. In summation at the second trial, Edmonds’ counsel began to argue that Summers, who had been arrested with Edmonds, had planted the heroin on him, had been the confidential informant, and had been arrested only as a pretense to protect her identity. Edmonds, violently disagreeing with the propriety of that argument and protesting that he would not permit it to be made, voluntarily absented himself from the courtroom, although he had been advised that such action might be harmful to his case.
Edmonds did not testify at the second trial. In fact, the only witness called by the defense was Detective Balmer, who testified that the street value of the diluted heroin was approximately $50,000.
Discussion.
Edmonds’ argument that Judge Owen was precluded from retrying the case because he was the judge in the original trial merits only brief discussion. Although appellant concedes that the issues involved in his case are not complex, he contends that the first trial was sufficiently antagonistic in terms of its facts and his attempt to represent himself that Judge Owen would have a “subconscious biased attitude” against appellant. As evidence of bias, Edmonds points to the “harsh” sentence, the trial court’s denial of his request for disclosure of the informant’s identity and denial of his request for more time to prepare his newly appointed counsel. These claims are patently frivolous.
While in United States v. Bryan, 393 F.2d 90 (2d Cir. 1968), this Court did hold that ordinarily the retrial of a lengthy and complex criminal case should be reassigned to a new trial judge, in United States v. Newman, 481 F.2d 222 (2d Cir.), cert. denied, 414 U.S. 1007, 94 S.Ct. 367, 38 L.Ed.2d 244 (1973), we also held that such reassignment was not required in all cases, especially those in which the original trial lasted only a few days. In the present case, the first trial took only four days; furthermore, neither Edmonds nor his counsel ever requested reassignment to a different judge for the retrial. The record supports no suggestion of bias by the trial judge against Edmonds; indeed Judge Owen took care to safeguard Edmonds’ rights when Edmonds himself jeopardized them by his disruptive courtroom behavior, as will be discussed infra.
In advancing his claim of error, Edmonds relies on language found in Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 628, 1 L.Ed.2d 639, 645 (1957) which states:
Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the [government’s] privilege [of nondisclosure] must give way.
In United States v. Soles, 482 F.2d 105 (2d Cir.), cert. denied, 414 U.S. 1027, 94 S.Ct. 455, 38 L.Ed.2d 319 (1973), this Court counseled that these words were not to be read with extreme literalness, since the Supreme Court made clear in Roviaro that the principle of disclosure, far from absolute, required balancing the individual’s right to prepare his defense against the public interest in ensuring the flow of information. The proper balance would depend on the particular circumstances of each case, requiring consideration of the crime charged, potential defenses, the possible significance of the informer’s testimony, and other relevant factors. 482 F.2d at 109.
The defendant in Soles, also convicted for a drug offense, had been introduced to his buyer, an undercover government agent, by an informant. He argued that disclosure might have supported a defense of mistaken identity. The Court found this proposed defense to be of dubious value, since the agent had been with the seller for substantial periods of time and his testimony was supported by strong circumstantial evidence. In short, the Court concluded that the request for disclosure “had no real possibility of affording a defense that would create a reasonable doubt in the mind of a reasonable juror.” 482 F.2d at 109-110. Similarly, in United States v. D’Amato, 493 F.2d 359 (2d Cir.), cert. denied, 419 U.S. 826, 95 S.Ct. 43, 42 L.Ed.2d 50 (1974), a paid informant introduced an undercover agent to an intermediary for a drug purchase; the informant was present at some of the meetings occurring between buyer and seller. The Court concluded that any argument that the informant could have cast doubt on the agent’s testimony was pure speculation; the assertion that the informant was intricately involved in the transaction charged was simply not supported by the record. See also, United States v. Morell, 524 F.2d 550, 557 (2d Cir. 1975); United States v. Hodges, 493 F.2d 11 (5th Cir. 1974).
Applying these legal standards to the facts of the instant ease leads us to conclude that Judge Owen did not abuse his discretion in denying disclosure. The record offers no support for either of the defenses Edmonds claims was thwarted by nondisclosure. At no time did appellant or his counsel offer any proof that would have validated the idea that the heroin had been planted in Edmonds’ suitcase or that he had received the drugs from any individual who might have been the government’s informant. Indeed, in an ex parte affidavit, the government stated that it had no information that in any manner indicated that the heroin had been placed in the suitcase by anyone other than Edmonds. Furthermore, defense counsel interviewed Sarah Roberts, the person Edmonds claims was the informant; in a letter to Judge Owen to clarify his affidavit in support of a motion for a new trial, counsel stated that Roberts at no time stated or implied that she was the
In contrast to the lack of any evidence other than counsel’s speculation about a defense centering on Roberts, the government presented uncontradicted and substantial evidence that Edmonds purchased the heroin from Junior. Jerome Christian testified that Edmonds had told him in April, 1974, that he was supposed to obtain $1,200 worth of heroin from Junior. Christian also related the conversation, described earlier in this opinion, between Junior, Edmonds, Kennedy and himself about the purity of Junior’s product; in addition, the jury heard the tape recording of that conversation. From this evidence, we must conclude, as we did in Soles, supra, that the request for disclosure had no real possibility of affording a defense that could create a reasonable doubt in the mind of a reasonable juror.
Edmonds next argues that no probable cause existed for his warrantless arrest at the bus depot.
The informant in the instant case was personally known to Detective Balmer and had previously supplied the authorities with information which had led to five purchases of narcotics by undercover agents and three seizures of heroin and cocaine.
We now turn to an assessment of whether the informant either detailed the manner in which the information was gathered or sufficiently described the underlying circumstances so that a police officer could reasonably believe that the suspect was engaged in criminal activity. The informant
Finally, Edmonds contends that the government failed to establish probable cause because it refused to reveal the identity of its informant. In United States v. Comissiong, 429 F.2d 834 (2d Cir. 1970), this Court held that disclosure of an informant’s identity is required only when the existence of probable cause depends entirely on the reliability of the informant. Nondisclosure is permissible where, as here, independent police investigation and corroboration contributed to probable cause since, “even though [the independent evidence is] not adequate of itself to establish probable cause, [it] constitutes a sufficient voucher against fabrication, although obviously not a complete one.” 429 F.2d at 839. See also, Mapp v. Warden, 531 F.2d 1167, 1173 (2d Cir. 1976); United States v. Carneglia, 468 F.2d 1084 (2d Cir. 1972), cert. denied, subnom., Inzerillo v. United States, 410 U.S. 945, 93 S.Ct. 1391, 35 L.Ed.2d 611 (1973).
Edmonds also claims that the warrantless search, at Task Force headquarters, of the suitcase which he carried at the time of his arrest was unlawful. This argument must be rejected. Given our finding that probable cause existed to arrest Edmonds, the suitcase clearly could have been searched at the bus depot as a search incident to custodial arrest. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). In United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), the Supreme Court held that once an accused has been lawfully arrested, the effects in his possession that were subject to search at the time and place of the arrest may lawfully be searched and seized without a warrant even after a substantial time lapse following the arrest. See also, United States ex rel. Muhammad v. Mancusi, 432 F.2d 1046 (2d Cir. 1970), cert. denied, 402 U.S. 911, 91 S.Ct. 1391, 28 L.Ed.2d 653 (1971) (search of briefcase in immediate possession at time of lawful arrest was just as proper when done shortly thereafter at F.B.I. headquarters).
We also find unpersuasive Edmonds’ contention that his trial “in its totality” amounted to a denial of due process. In support of his claim, Edmonds points to his mental unpreparedness for trial, his emotional distress over the death of Summers, the insufficient amount of time allowed his assigned counsel to prepare for trial, and his self-removal from the courtroom during summation. While Edmonds concedes that none of these factors taken alone constitutes a denial of a fair trial, he argues that their cumulative effect justifies granting him a new trial.
We begin our consideration of this claim by noting the principle that “[a] defendant is entitled to a fair trial but not a perfect one.” Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 490, 97 L.Ed. 593, 605 (1953). A review of the record convinces us
On the day that the trial was to commence, at a conference in chambers with both counsel and appellant present, the court and the government learned for the first time that Christine Summers had died and that her funeral was scheduled for that very hour. While the judge was sympathetic towards Edmonds, all present, including appellant, agreed that there was no practical way to get Edmonds to the burial in time. Asked by the court if he wanted a one day adjournment, Edmonds replied that he would like to hear the tape recording made by Jerome Christian. The judge then made the tape available to Edmonds that morning and postponed jury selection until that afternoon.
There is no factual basis in the record to support Edmonds’ claim that his assigned attorney lacked sufficient time to prepare for trial. Mr. Kessler, an experienced trial attorney, was assigned two weeks prior to trial and never once suggested to the court that he was deprived of an adequate preparation period.
During the defense counsel’s summation, he suggested to the jury that Christine Summers was the confidential informant. Edmonds interrupted summation, stating that he would not allow this argument to be made and that he refused to participate further in the proceedings. After fully discussing this turn of events with counsel and appellant out of the jury’s presence,
Finally, Edmonds argues that his counsel’s insistence upon implicating Summers as the informant rather than calling Sarah Roberts as a witness “promoted” his guilt in the minds of the jurors. After the above described incident, defense attorney Kessler stated for the record that he fully interviewed Roberts, at which time she denied being the informant. Counsel further stated that he recommended to Edmonds that Roberts not be called because of the damaging evidence about her prior drug dealings with Edmonds which was certain to be elicited on cross-examination. Furthermore, he felt that even if she had admitted to being the informant, she would then have been able to testify directly that she had seen the heroin in Edmonds’ possession just prior to his arrest. A more attractive alternative strategy, ultimately unsuccessful, was for counsel to implicate Summers, who was dead. We cannot say that this tactical choice rendered Edmonds’ trial unfair.
In sum, the cumulative effect of the points raised was not of such egregious nature as to have deprived appellant of a fair trial. See, United States v. McGovern, 499 F.2d 1140, 1144 (1st Cir. 1974); United States v. Follette, 298 F.Supp. 973, 974 (S.D. N.Y.1969).
Judgment of conviction affirmed.
. 21 U.S.C. § 841(a) states in pertinent part:
“Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally— (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance;”
*716 Heroin is defined as a controlled substance in 21 U.S.C. § 812 Schedule I, (b)(10).
21 U.S.C. § 841(b)(1)(A) sets out the penalties for violation of subsection (a).
. Prior to the commencement of his second trial, Edmonds moved to suppress the tape recording. The district court denied the motion and Edmonds has not appealed from that ruling.
. Appellant has not suggested that his arrest was invalid because the agents failed to secure a warrant when there arguably was sufficient time to do so. This issue would have come within the Supreme Court’s recent ruling in United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598, 44 U.S.L.W. 4112 (1976), which upheld a warrantless public arrest based upon probable cause that a felony was being committed, even though the authorities had received information from the reliable source six days prior to the arrest. Edmonds also was arrested in a public place and the time differential between receipt of the confidential information and arrest was less than one day.
. Although both Spinelli and Aguilar involved the validity of search warrants, the Supreme Court noted that the analysis required is “basically similar” to determining the propriety of an arrest without a warrant. Spinelli v. United States, supra, 393 U.S. at 417 n. 5, 89 S.Ct. at 589, 21 L.Ed.2d at 644.
. There is no “absolute” requirement that the information must have led to prior convictions. United States v. Comissiong, 429 F.2d 834, 836 (2d Cir. 1970).
. The court offered appellant a recess for discussion with counsel, which offer was declined. Edmonds’ attorney advised him that his absence from the courtroom might have a negative impact on the jury. The court also directly recommended that Edmonds remain in the courtroom and carefully ascertained Edmonds’ awareness of the possible adverse impact emanating from his actions.
Concurrence Opinion
(concurring):
I concur in the result.
In the light of the admissions on the Christian tape, any failure to advise the defense of the identity of the informer was harmless error. Any entrapment defense would have been unavailing in any event. Hampton v. United States, - U.S. -, 96 S.Ct. 1646, 48 L.Ed.2d 113, 44 U.S.L.W. 4542 (1976). While counsel’s suggestion that the late Ms. Summers was the informant probably had the effect Edmonds