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United States v. Michael Reeves Floyd, 496 F.2d 982, 2d Cir. (1974)
United States v. Michael Reeves Floyd, 496 F.2d 982, 2d Cir. (1974)
2d 982
Frederick P. Hafetz, New York City (Goldman & Hafetz, New York City,
on the brief), for appellant Floyd.
Harvey A. Silverglate, Boston, Mass. (Norman S. Zalkind, Boston, Mass.,
on the brief), for appellant Lesavoy.
Jesse Berman, New York City, for appellant Miller.
John J. Kenney, Asst. U.S. Atty., New York City (Paul J. Curran, U.S.
Atty., and S. Andrew Schaffer, Asst. U.S. Atty., New York City, on the
brief), for appellee.
Before WATERMAN, FRIENDLY and TIMBERS, Circuit Judges.
TIMBERS, Circuit Judge:
We affirm.
I.
In view of the issues raised on appeal, the following summary of the events in
late October and early November 1972 which culminated in the arrest of
appellants is believed necessary to an understanding of our rulings on those
issues.
Later that evening after Hochman had departed, Krell called Floyd and
informed him that he had a buyer for large quantities of hashish. Floyd agreed
to arrange a meeting with 'the people in New York' and to call Krell back.
On the following evening, October 31, Floyd picked up Krell and drove him
from his home in New Jersey to 270 Riverside Drive in Manhattan where they
met Axelrod in the latter's apartment. There they discussed the terms of the sale
of hashish to Hochman. Floyd then drove Krell back to his home in New Jersey.
Krell at his home.3 Krell stated that the price for the hashish would be $450 per
pound and that his supplier wanted to sell only 100 pounds. The two agreed,
however, that Hochman would bring enough money to buy 500 pounds; that
Drell would see what he could do; and that Hochman would go to New York
later that day and call Krell. Krell then called Floyd, told him that Hochman
wanted to buy several hundred pounds of hashish, asked him to come to his
house that morning, and told him that he was expecting a call from Hochman
during the day.
9
At about noon on November 1, Hochman called Krell and told him that he had
a room in a Manhattan hotel. They agreed to meet there an hour later. Floyd,
Krell, appellant Miller and one Steve Abelman then drove to the hotel in
Miller's car. Floyd and Krell met Hochman and went with him to his room.
10
Once in the rrom it became clear that, although Hochman still wanted to buy
500 pounds, the suppliers for Floyd and Krell did not want to sell that much at
the outset. Floyd told Hochman that, based on his conversation with Axelrod
and one Steven Liebermann the day before, the initial delivery could not be
more than 10 to 20 pounds.
11
12
Krell drove to 270 Riverside Drive with Miller and Abelman who had been
waiting outside the hotel. After Krell met Liebermann and Axelrod in the
latter's apartment, they went to a public phone booth from which Axelrod called
Floyd and told him to call Axelrod back at the booth. He did. From a public
phone in the lobby of Hochman's hotel, Floyd called Axelrod and handed the
receiver to Hochman. Axelrod told Hochman that he would make an initial
delivery of 50 pounds and then three or four subsequent trips, for a total of 400500 pounds. He told Hochman that Krell would have the 50 pounds when he
returned to the hotel. Floyd took the receiver and spoke to Axelrod. Floyd then
told Hochman that Krell would arrive in half an hour with 50 pounds of
hashish.
13
13
14
Meanwhile, Floyd had seen two men standing on the fire stairs outside
Hochman's room and became suspicious. He left the hotel to telephone
Axelrod. Floyd never returned to the room. Krell left Hochman to look for
Floyd, found him outside the hotel and then called Hochman to tell him the deal
was off for that day. Floyd called Axelrod to tell him what had happened.
15
Five days later, on November 6, Hochman again called Krell at his home. This
started a new series of negotiations which culminated in a meeting between
Hochman and Axelrod at a Manhattan restaurant on November 10. There
emerged an agreement by Axelrod to sell 500 pounds of hashish to Hochman at
Krell's house in New Jersey the following day in three shipments of 50, 150 and
300 pounds. Axelrod told Hochman that the hashish would be packed in seven
to ten suitcases which would be supplied along with the hashish.
16
On November 11, Hochman went to New Jersey and called Krell to get the sale
under way. Krell sent Miller and Abelman to New York in separate cars. The
plan was that Miller would drive the second shipment of 150 pounds of hashish
to New Jersey, but would not leave New York until after he was informed that
the first 50 pounds had arrived and that payment had been received. Abelman
received a 50 pound suitcase of hashish from Axelrod and drove to Krell's
house. Upon Hochmanhs arrival at Krell's house, he saw the hashish and
persuaded Krell to call Axelrod and tell him he had seen the money (although in
fact he had not.) Hochman then called 'his man' in Krell's presence and told him
to bring half the money. Upon the arrival of Hochman's 'man', Krell and
Abelman were arrested.
17
Meanwhile, Axelrod, Lesavoy and Miller drove in the latter's car to 229
Columbus Avenue in Manhattan. Axelrod and ,Lesavoy entered an apartment at
that address and joined Liebermann there. While they were inside, Miller
opened the trunk of his car. When the three others came out of the building,
each carrying a 50 pound suitcase of hashish, all four were arrested.
18
19
On April 6, 1973, 4 a two count indictment was returned in the Southern District
of New York charging Floyd, Lesavoy and Miller with violating the controlled
substances provisions of the Comprehsnsive Drug Abuse Prevention and
Control Act of 1970, as stated above.5
20
On April 27, 1973, after a seven day trial, the jury convicted the three
appellants on the conspiracy count and, in addition, convicted Lesavoy on the
substantive count, the court having dismissed the substantive count as against
Floyd and Miller at the close of the government's case.
21
On June 8, 1973, the following sentences were imposed: Floyd was sentenced
to a one year term of imprisonment, to be followed by a two year period of
special parole; Lesavoy was sentenced on count one to a three year term of
imprisonment, to be followed by a two year period of special parole, and on
count two imposition of sentence was suspended and a three year term of
probation was imposed to run consecutively to the sentence imposed on count
one; Miller was given an effective sentence of six months imprisonment, to be
followed by a two year period of special parole.6 Appellants have been enlarged
on bail pending appeal.
II.
22
Floyd's essential claims of error are that the evidence did not establish an overt
act in furtherance of the conspiracy prior to his assered withdrawal and that the
court erroneously charged the jury as to the requisite sequence of the
agreement and the overt act. We disagree.
23
Viewing the evidence in the light most favorable to the government, as we must
at this stage, United States v. McArthy, 473 F.2d 300, 302 (2 Cir. 1972), there
was ample evidence from which the jury could have found that a conspiracy
existed on Ontober 30 when Krell called Floyd to tell him he had a buyer for
large quantities of hashish and Floyd agreed to arrange a meeting with 'the
people in New York', which he did the following night. In fact, Floyd and
Miller were among those who went to Hochmanhs hotel on November 1 to
transfer hashish to Hochman; and the hashish was in Miller's car trunk when
the deal was postponed.
25
Since the conspiracy charged in the indictment was not an agreement with
Hochman but an agreement among the defendants to engage in the sale of
hashish, there was ample evidence from which the jury could have found the
existence of such an agreement prior to November 1 and that the meeting in the
hotel on that day was a step in carrying it out.7
26
Floyd's related argument is that the court's charge permitted the jury to find that
the November 1 meeting constituted proof of both the first overt act and the
conspiratorial agreement itself. This not only ignores the evidence to which we
have referred above, but it misinterprets the court's charge.
27
We hold, based upon our careful examination of the court's conspiracy charge
as a whole, that the jury was clearly instructed that, before they could convict
Floyd on the conspiracy count, they would have to find that the conspiracy
existed prior to the commission of the first overt act, i.e. the November 1
meeting. The court charged that to prove a conspiracy the evidence must show
that the defendants knowingly and willfully joined the conspiracy and that 'one
of the conspiracy and that knowingly committed at least one of the overt acts
charged in the indictment . . ..' And, as to Floyd, the court specifically charged
that 'to convict defendant Floyd of the crime of conspiracy, you must find that
the Government has proved overt act No. 1 beyond a reasonable doubt'.
28
We are satisfied that the charge cannot fairly be said to have permitted the jury
to find that the November 1 meeting constituted proof of both the overt act and
the conspiratorial agreement.
III.
29
Miller's chief claims of error are that certain statements he made to government
agents after his arrest were erroneously admitted in evidence because he was
not given sufficient Miranda warnings and that his sentence was based on
improper considerations.
30
Following a pretrial suppression hearing, the court found that, after Miller had
been arrested, handcuffed and placed in a government vehicle, a government
agent advised him that 'he had a right to remain silent, anything he said can and
would be used in a court of law, that he had a right to an attorney, if he could
not afford an attorney, an attorney would be appointed for him by the court.'8
Miller stated that he understood his rights. The government agent admitted at
the suppression hearing that he had not expressly informed Miller that he had a
right to have an attorney present before any questioning began. After the
warnings stated above had been given to Miller at BNDD headquarters, he
made certain incriminating statements to the agent. The court, relying upon
United States v. Lamia, 429 F.2d 373, 376-77 (2 Cir.), cert. denied, 400 U.S.
907 (1970), held that these statements had been voluntarily given and were
admissible.
31
Miller contends that because the warnings given him departed from those
prescribed in Miranda v. Arizona, 384 U.S. 436, 467-79 (1966), his statements
were inadmissible. We disagree. We hold on the particular facts of this case that
Miller was adequately informed of his right to counsel and that the Miranda
warnings were sufficient.
32
33
'Lamia had been told without qualification that he had the right to an attorney
and that one would be appointed if he could not afford one. Viewing this
statement in context, Lamia Having just been informed that he did not have to
make any statement to the agents . . ., (he) was effectively warned that he need
not make any statement until he had the advice of an attorney.' 429 F.2d at 376-
77.
34
Similarly in United States v. Pacelli, 470 F.2d 67, 72 (2 Cir. 1972), cert. denied,
410 U.S. 983 (1973), and in United States v. Carneglia, 468 F.2d 1084, 1092 (2
Cir. 1972), cert. denied, 410 U.S. 945 (1973), we rejected almost identical
challenges to the admission of certain incriminating statements. In Pacelli, for
example, we rejected a claim that appellant was not informed of his right to the
presence of an attorney:
35
'the arresting officer warned Pacelli that he had a right to remain silent, that he
did not have to make any statements to the officer, that he had a right to an
attorney and that if he couldn't afford one the court would appoint an attorney
for him. The instructions fully informed appellant of his rights.' 470 F.2d at 72.
36
Here, since Miller also was informed of his rights to remain silent and to have
an attorney, including an appointed one, we hold that he was adequately
informed of his rights, that the district court correctly found a voluntary
waiver, 9 and that Miller's statements were properly admitted in evidence.10
37
Miller further contends that the district court, in imposing upon him a six
month jail sentence11 under a statute that authorized a maximum five year term
of improsonment, improperly commented to Miller that 'you exercised your
right, which you have a right to do, to stand trial, but you didn't take the first
step toward rehabilitation which was coming forward and telling the truth.'
38
Although Judge Metzner should have carefully avoided any suggestion in his
comments at the sentencing hearing that he was taking into account the fact
that Miller had not pleaded guilty but had put the government to its proof, we
are satisfied that the comment to Miller reflected no more than the judge's
consideration of whether Miller had taken the first step toward rehabilitation by
recognizing that he was at fault. As the court said in Gollaher v. United States,
419 F.2d 520, 530 (9 Cir.), cert. denied, 396 U.S. 960 (1969):
39
40
Upon the record as a whole, including Miller's lenient sentence, we hold that
the judge did not penalize him for standing trial or for remaining silent, but that
he did properly consider his need for rehabilitation.
IV.
41
Appellants claim that the district court erred in discharging a juror who
informed the court during the trial that he had a strong prejudice against
wiretapping and felt that he could not render a fair judgment.
42
On the voir dire in empaneling the jury, the court informed the prospective
jurors that part of the government's proof would consist of tape recordings,
pursuant to a wiretap order, of conversations between a federal agent and the
defendants, without the latters' knowledge. The court asked the veniremen
whether 'any of you object to the Government making such recordings, and
would the fact that they made such recordings in any way affect your ability to
render a true and just verdict in this case.' No prospective juror responded.
43
On the fifth day of the trial, however, one juror sent a letter to the judge stating
that, because he had a strong prejudice against the use of wiretapping devices,
he could not render a fair judgment.12 After conferring with counsel and
questioning the juror in their presence, the court discharged the juror and
replaced him with an alternate, on the ground that the juror had 'misled counsel'
at the time of his selection and 'feels that '(he) cannot render a fair judgment in
this case." Appellants contend that the court's discharge of the juror under these
circumstances constitutes error. We disagree.
44
The court is authorized, pursuant to Fed.R. Crim.P. 24(c), any time before the
jury retires to consider its verdict, to replace jurors with alternates if the court
finds that jurors are 'unable or disqualified to perform their duties.' This
substitution of an alternate juror for reasonable cause is the prerogative of the
court and does not require the consent of any party. United States v.
Ellenbogen, 365 F.2d 982, 989 (2 Cir. 1966), cert. denied, 386 U.S. 923 (1967).
A juror may be discharged for misleading the court or when facts are presented
which convince the court that a juror's ability to perform his duty has become
impaired. United States v. Maxwell,383 F.2d 437, 443 (2 Cir. 1967), cert.
denied, 389 U.S. 1057 (1968); United States v. Gottfried, 165 F.2d 360 365 (2
Cir.), cert. denied, 333 U.S. 860 (1948); United States v. Cameron, 464 F.2d
333, 335 (3 Cir. 1972).
45
By replacing the juror here in question with an alternate, after conferring with
the juror and with counsel, the court acted well within its discretion. Absent a
clear showing of prejudice, we will not presume it. United States v. Maxwell,
supra, 383 F.2d at 443; United States v. Ellenbogen, supra, 365 F.2d at 989;
United States v. Zambito, 315 F.2d 266, 269 (4 Cir.), cert. denied, 373 U.S. 924
(1963).
46
Here there was no showing whatsoever of prejudice. The juror had failed to
respond to the court's voir dire question relating to wiretaps. He thereafter
informed the court that he could not render a fair judgment. Under these
circumstances, we hold that the district court properly discharged the juror.
Indeed, we fail to see how the court could have done otherwise.
47
We have considered appellants' other claims of error and we find them without
merit.
48
Appellants were convicted a year ago after a fair trial on the basis of
overwhelming, uncontroverted evidence of serious crimes committed a year
and a half ago. We order that the mandate issue forthwith.
49
The indictment charged, and there was expert testimony at trial, that the
Schedule I controlled substance here involved contained tetrahydrocannabinol
and marihuana. 21 U.S.C. 812 (1970). We refer to it as hashish in this opinion
We have been informed that appellant Lesavoy died on March 12, 1974, after
the argument of his appeal but before the filing of this opinion. We therefore
vacate his judgment of conviction and remand his case to the district court with
directions to dismiss the indictment as to him. Durham v. United States, 401
U.S. 481, 483 (1971)
The same sentence as that imposed on Lesavoy was imposed on Axelrod and
Liebermann, both of whom are serving their sentences
Imposition of sentence on Abelman was suspended and he was placed on
probation for a term of five years pursuant to 18 U.S.C. 5010(a) and 4209
(1970).
Viewing the conspiracy in this manner also disposes of Miller's similar claim,
since the November 1 meeting referred to in the first overt act was subsequent
to the formation of the conspiracy
United States v. Abelman, 73 Cr. 297 (S.D.N.Y., filed April 18, 1973) at 10
(unreported)
Implicit in our holding that the district court correctly found that Miller had
knowingly waived his rights, is the further holding that the court's factual
finding that alleged coercion 'did not affect the voluntariness of (Miller's)
statements', United States v. Abelman, supra note 8, at 11, was not erroneous
10
We also reject Floyd's claim that, as to him, there was a 'contextual inculpation'
in the statements of Miller in violation of Bruton v. United States, 391 U.S. 123
(1968). Miller's statements, before being admitted, were redacted so that there
was no reference to any person other than Miller
11
Miller actually was sentenced to seven months with the provision that he be
confined in a jail type institution for six months. The remainder of the sentence
was suspended
12