Justia Federal District Court Opinions

Leroy ("Nicky") Barnes, Steven Baker, Steven Monsanto, John Hatcher, Waymin Hines, Leonard Rollock, James McCoy, Walter Centeno, Leon Johnson, Joseph Hayden, and Wallace Fisher appeal from judgments of conviction entered on January 19 and 23, 1978, in the United States District Court for the Southern District of New York after a ten-week trial before the Honorable Henry F. Werker, District Judge, and a jury. The defendants were convicted of conspiracy to violate the federal narcotics laws, in violation of 21 U.S.C. § 846, and of various substantive violations thereof (21 U.S.C. §§ 812, 841(a) (1), and 841(b)(1)(A)). In addition, defendant Barnes was convicted of engaging in a continuing criminal enterprise involving narcotics, in violation of 21 U.S.C. § 848, and defendant McCoy was convicted of unlawful possession of a firearm during the commission of a federal felony (18 U.S.C. § 924(c)(2)).

Those defendants who appeal have submitted a Joint Brief (J.Br.) of 94 pages and a reply brief of 71 pages covering common issues on appeal. In addition, separate briefs have been filed by individual appellants as to issues that apply more particularly to them. In view of the complexity of the issues raised on appeal, we set forth a summary of the charges in the indictment, insofar as it relates to appellants, followed by a brief chronological sketch of the narcotics investigation which led to the instant prosecution, the facts of which were presented to the jury during the ten weeks of trial.

THE INDICTMENT

Count ONE charged a conspiracy by Barnes, Baker, Monsanto, Hatcher, Hayden, Wallace Fisher, Hines, Rollock, McCoy, and Centeno to violate the narcotics laws of the United States, 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A), 846. The object was the possession and distribution of heroin and cocaine. Thirty-three overt acts were alleged. Additional defendants named in this count included Guy Fisher, Gary Saunders, Wayne Sasso, and Brenda Sasso. The jury failed to reach a verdict as to Guy Fisher. Saunders and Wayne Sasso were acquitted. The charge against Brenda Sasso was dismissed by the court.

Count TWO charged Barnes with operating a "continuing criminal enterprise" to violate 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) in concert with five or more other persons with respect to whom he occupied a position of organizer, supervisor, or manager, and from which enterprise he obtained "substantial income or resources". 21 U.S.C. § 848.

The Substantive Narcotics Violation Counts 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A), and 18 U.S.C. § 2

Count THREE charged Barnes, Baker, Monsanto, McCoy, and Fisher with possessing and distributing approximately 445 grams of heroin on or about December 29, 1976.

Count FOUR charged Barnes, Hatcher, and Fisher with possession and distribution of approximately 457 grams of heroin on or about March 11, 1977.

Count FIVE made the same charge against Barnes, Hines, and Centeno, the date being on or about March 14, 1977, and the amount being 892.7 grams.

Count SEVEN charged Baker and McCoy with possession and distribution of some 191 grams of heroin on or about March 1, 1977.

Count ELEVEN charged Barnes, Rollock, and Fisher with possession and distribution, on or about November 29, 1976, of 107.6 grams of heroin.

Count TWELVE charged Johnson with possession and distribution, on or about December 4, 1976, of some 24.1 grams of cocaine.

Count THIRTEEN charged Johnson with possession and distribution of 99.5 grams of cocaine on or about December 14, 1976.

The Firearms Violations

Count EIGHT charged McCoy with carrying a firearm, on or about March 15, 1977, during the commission of a federal felony, in violation of 18 U.S.C. § 924(c) (2).

In addition, McCoy and Centeno were charged with separate firearms violations. Count SIX, in which Centeno was charged, was dismissed at the close of the Government's case. The jury acquitted McCoy under Counts NINE and TEN.

THE INVESTIGATION

Apparently as a result of a New York State narcotics investigation, Inez Smart, a narcotics "activist", was arrested in March 1977. She agreed to cooperate and testified at trial. Her testimony, in substance, was that, in October 1974, she had met the defendant Barnes through a Richard Smith; that Barnes had desired to purchase quinine (a narcotics cutting material) in large quantities ($150,000 worth a month) at $25 an ounce; and that, upon delivery of 1000 ounces, Smith and Barnes had paid her $25,000. Further quinine transactions took place during 1975.

In December 1974 police officers stopped a Mercedes Benz leased by Barnes from Hoby Darling Leasing Corporation and driven by Barnes. Richard Smith and one Robert Monroe were passengers. In the trunk of the car the police found over $132,000 in cash, mostly small bills.

In November 1976 the Drug Enforcement Administration (DEA), in an effort to uncover sources of drug traffic in Harlem and the South Bronx, enlisted, for a financial consideration and witness protection, the services of Robert Geronimo. He had grown up in the South Bronx and was friendly with many of the defendants. Geronimo also was familiar with the Kingdom Auto Leasing Corporation in the Bronx, owned by Guy Fisher and apparently used by the Barnes organization narcotics dealers to avoid car forfeiture if narcotics were found therein.

In November 1976, Geronimo, in an effort to infiltrate what was believed to be the Barnes organization, called upon Wallace Fisher, a younger brother of reputed Barnes confederate Guy Fisher, in an endeavor to enlist his services. At about this same time, undercover agent Louis Diaz of the DEA appeared with money to make substantial purchases. Geronimo represented Diaz to Wallace Fisher¹ as his Italian cousin with money to make narcotics purchases.

On November 29, 1976, for the sum of $8,300 ($8,000 for the narcotics and $300 for Fisher), one-eighth of a kilogram of heroin was sold by Rollock to Geronimo and Diaz. This transaction formed the basis for Count ELEVEN of the indictment. Rollock and Fisher were convicted on this charge; Barnes was acquitted.

"Money-washing" is apparently an important step in the narcotics business. It involves the conversion of many small bills into larger denominations. In mid-December 1976, at the Hubba Hubba Social Club in Harlem, Barnes asked Fisher whether he and Geronimo could handle a "wash". This was accomplished at a downtown bank by Diaz and Wayne Sasso (who was acquitted of the conspiracy charge arising from this transaction). Defendant Hayden, when told of the success of the "wash", expressed his satisfaction with the operation.

Shortly thereafter, on an occasion when Barnes met Fisher at Bubba Jean's Emporium, Barnes asked Fisher why he (Fisher) and Geronimo had gone to Rollock; Barnes directed that, for any further deals, Fisher and Geronimo should see defendant Monsanto ("Fat Stevie"). A deal was consummated subsequently at the Harlem River Motors Garage, whereat Geronimo gave $21,000 to Monsanto, who in turn gave Geronimo one-half kilogram of heroin which, according to the conspirators, had come from defendant Baker. McCoy and Monsanto proceeded to count the money as Geronimo left the premises. Barnes, Baker, Monsanto, McCoy and Fisher were convicted for this transaction, which was Count THREE.

On about March 11, 1977, a sale of a half-kilo, at the price of $35,000 (as agreed between Hatcher and Geronimo), was made by defendant Hatcher, through Fisher, to Geronimo and Agent Diaz, delivery taking place at the Harlem River Motors Garage. The package containing the heroin had the name "Bo" (which was Hatcher's nickname) written on it. This transaction, the subject of Count FOUR, resulted in the conviction of Hatcher and Fisher; Barnes was acquitted, despite evidence to the effect that Barnes had been in the office area watching Diaz's comings and goings.

While Diaz and Geronimo were continuing their "infiltration" efforts, the DEA was attempting to find other means to obtain evidence. Hence, during late summer and early fall of 1976, the DEA enlisted the services of two additional informers, Promise Bruce and Robert Wooden. Bruce was in jail at the time he was approached, but was reputed to know Barnes, Johnson, Hines and Guy Fisher and to have discussed obtaining heroin with Barnes and Guy Fisher during 1974. After his release from prison, Bruce purchased cocaine from Johnson on about December 3 and 13, 1976. For these two sales Johnson was convicted under Counts TWELVE and THIRTEEN.

Later in December, Bruce proposed exchanging "cut" for heroin. On two occasions Bruce delivered samples of quinine and mannite (a cutting narcotic) to Johnson, to be taken by him to Barnes for his approval. Apparently the quinine was the wrong kind and the price was out of line. Further negotiations ensued, and in early February 1977 Bruce discussed such an "exchange" transaction directly with Barnes. When Hayden joined them, Barnes inquired as to the quantity of cut that Bruce had on hand. After hearing his reply and after asking Hayden about his (Hayden's) stock of "cut", Barnes told Bruce that they did not need any "cut" at that time.

Bruce continued to push his exchange program and, after unfruitful discussions with Monsanto, made a deal for the exchange of "cut" and cash for one-quarter kilo of heroin. The deal was consummated on or about March 1, 1977 by the delivery to defendants Baker and McCoy of some 44 kilograms of mannite and $2,000 for the one-quarter kilo. Baker and McCoy were both convicted on this count (Count SEVEN).

Bruce continued in his efforts to purchase heroin. In early March 1977, he met the defendant Waymin Hines, who agreed to sell 250 "quarters"² of heroin for $10,000 and to provide samples so that the weight and quality might be checked. Bruce then waited at Julia's Bar with DEA Agent Mary Buckley for delivery of the samples. Shortly thereafter defendant Walter Centeno arrived and gave Bruce two "quarters". The four Bruce, Buckley, Centeno and Hines left the bar and reassembled at an agreed-upon location, at which time $10,000 was given to Hines. Hines, in turn, designated the time and place of delivery of the 250 "quarters", which were delivered to Agent Buckley by Centeno, who gave his name as "Chico Bob". Hines and Centeno were convicted on this count (Count FIVE); Barnes was acquitted.

Wooden's testimony as an informer related to Monsanto and Baker. Wooden, posing as a customs agent in 1974, had met Monsanto. During the course of their friendship, Monsanto told Wooden that he (Monsanto) sold heroin. He asked whether it would be possible for him (Wooden), as a customs agent, to permit the importation of 300 pounds of heroin into the country. It was after this event that Wooden began to cooperate with the DEA. Wooden and Monsanto conducted business both in "cut" and heroin, Wooden delivering a case of "bonita" (a cutting material) to Monsanto for $700 and buying an ounce of heroin for $1500, the cash being paid to Monsanto at the Harlem River Motors Garage. Baker was present when the money was given to Monsanto, and was introduced to Wooden as Monsanto's partner. No charge was brought relating specifically to this transaction.

Other evidence included testimony of numerous conversations in which "Nicky" was referred to by Fisher and others, and general conversations regarding negotiations, unconsummated deals, and identifications of persons who arrived at various subject locations just before or just after a transaction was completed.

The jury began to hear evidence on September 29, 1977, before the Honorable Henry F. Werker. On December 2, after deliberations lasting three days, eleven defendants were convicted.

THE ISSUES ON APPEAL

Appellants' opening and much stressed argument deals with the manner in which the court conducted the Voir dire examination of the potential jurors and its insistence on their anonymity. More specifically they claim that:

"The district court's refusal to disclose petit jurors' identities, residence locales or ethnic backgrounds and the court's restrictive voir dire denied defendants due process." (J.Br. 5).

They also assert as reversible error the court's failure to inquire into the religion of each prospective juror. Using as their authority Clarence Darrow, who believed that a juror's "nationality, his business, religion, politics, social standing, family ties, friends, habits of life and thought; the books and newspapers he likes and reads . . . (even to his) method of speech, the kind of clothes he wears, the style of haircut . . .", were important subjects for questioning, they contended that the court's inquiry was unduly (to the point of reversal) restrictive. (J.Br. 5, Quoting Darrow, Attorney for the Defense, Esquire Magazine, May 1936). Substantially before Darrow, even Blackstone, also quoted by appellants, said: "The peremptory challenges of the prisoner must however have some reasonable boundary." 4 Blackstone 347 (1769). Appellants themselves recognize this limitation, saying: "(I)t is not asserted that defendants ordinarily are entitled, in each and every case, to Voir dire prospective jurors on their ethnic or religious backgrounds"; but they claim "at the very least, their 'neighborhood' or township within the County" should have been disclosed, and that, if names and addresses were properly withheld, then the court should at least have inquired about prospective jurors' ethnic background in order to facilitate the intelligent exercise of peremptory challenges. (J.Br. 12 n.*).

In view of the challenge to the jury selection procedure adopted by the district court, a review of the some 524 pages of the transcript covering the Voir dire must be made. There were 15 defendants. All but one, a Hispanic, were black. The charges were serious the distribution of massive quantities of narcotics on the streets of Harlem and the South Bronx from which enormous profits were realized an operation which had continued over a period of years. There had been much pre-trial publicity, particularly centering around the activities of the alleged ringleader, the defendant Barnes. Further, the "sordid history" of multi-defendant narcotics cases tried in the Southern District³ was sufficient to put the trial court on notice that all safety measures possible should be taken for the protection of prospective jurors, including complete anonymity, namely, no disclosure of name or address. In addition, their rights of privacy had to be respected except insofar as their views might relate to the specific charges to be submitted to them.

The court called 150 potential jurors. To each was assigned a number. Individual examination followed to winnow out for cause. The court had received in advance from both Government and defendants alike lengthy lists of questions which they requested the court to ask the prospective jurors. The Government submitted 45 questions; respective counsel for Barnes, Hayden, and Fisher, 108, which included questions relating to their general attitude towards black people and their feelings towards them.

The substance of these many requests, with the exception of ethnic background and religion, were embodied in the court's questions. None of the crimes charged related to any specific ethnic background, nor to any religion. Rather, they concerned simply allegations of narcotics trafficking committed by blacks. Potential prejudices in these fields were fully covered by the court.

The court first addressed a number of questions to the entire panel. These questions included the usual questions pertaining to whether the prospective jurors knew any of the alleged participants or attorneys involved in the case; whether they could accept and apply the law as instructed by the court; whether they had any feelings about undercover agents, paid informants, or electronic surveillance which would prevent their fair judgment of the case; whether they, or close friends or relatives, had had any prior experiences with narcotics or with firearms which would prevent fair consideration of the case; whether they had seen or read anything that would influence their judgment; and whether they would be able to sit during a rather lengthy trial. The entire panel was also asked to make known to the court whether they had ever had any contact with any individuals or businesses which would be referred to during the trial, including the Harlem River Motors Garage, various social clubs, and various persons, including even the doorman at the Hubba Club. The list was quite lengthy, but only two responded that they, or their friends or relatives, had knowledge of the named persons or places.

After many prospective jurors were excused for cause, the court addressed the following types of questions to the individual prospective jurors. All jurors were asked the county of their residence, and the length of time they had resided in that county. Family history was elicited: each prospective juror was asked about marital status and whether he/she had any children. Furthermore, each was asked about his or her own occupation and, if he or she had a family, about the occupations of spouse and/or children.

All prospective jurors were also asked about their educational backgrounds, and about membership in any organized group, club, or fraternal organization.

Each was also asked whether he/she or close friends or relatives had ever had dealings with agents or officers of the DEA, the New York Drug Enforcement Task Force, the New York City police, or any agency of Government dealing with narcotics; if there was an affirmative response, the prospective juror was asked whether the previous contact had created any opinion. All prospective jurors were also asked about any family member's or friend's employment with the Federal Government or with any federal or state investigating agency, etc., which could support a tendency to favor the Government. Furthermore, each was asked whether he/she had any opinion about the courts, defense attorneys, prosecutors, and/or law enforcement officers, that would prevent fair judgment of the case, and whether he/she had been involved in any suit with the United States; whether he/she or a friend or family member had ever previously been a juror or had ever been charged with a crime or been under subpoena, or had ever been a complainant.

All were asked about health problems, including potential family health problems. Further, all were asked whether they had previous knowledge of the indictment, and whether they had read anything about the case.

Specific questions concerning attitude toward blacks were addressed to each juror as well.⁴ The court first asked what the prospective juror's "general attitude toward blacks" was; to further probe, the court then asked whether the prospective juror had ever moved to a different area because he/she had been disturbed by changing conditions. The court asked whether the prospective jurors had had any experience with persons of other races, creeds, or colors resulting in civil or criminal confrontations, or whether he/she had ever had any experiences with persons of different races arising out of employment, residence, or school situations, which might make the juror feel that he/she could not fairly judge such persons. Most were also asked whether they felt that they were generally prejudiced against persons of other races.

There were many instances in which the prospective jurors admitted some prejudice or tendency to favor the Government, and they were excused. (E. g., Tr. 144, 193, 196, 197, 384, 435). Several admitted that they had moved because of "changing conditions" in their neighborhoods. (E. g., Tr. 329, 338, 382, 470 (because of narcotics entering neighborhood)). Several admitted some prejudice against blacks. (E. g., Tr. 385, 448, 499). These were excused. Further, after the panel was sworn, and before the alternates were selected, juror No. 5 told the court that he had been mugged on his way home the previous night by a black person, and he admitted that he could no longer be fair to black persons. He was excused, and alternate No. 1 became juror No. 5. (Tr. 571-72). Moreover, after being selected, alternate No. 3 recalled a situation which, the juror decided, prejudiced him, and he was excused. (Tr. 499). In sum, the court conducted a Voir dire which resulted in the selection of a panel whose background was fully explored, and whose state of mind with respect to the racial "question" was probed as well.⁵

Although the court specifically disclaimed that any threats had been reported in this case (Tr. 291), there were instances, brought up during the Voir dire, that indicated that some threats may have been made in the case.⁶ For instance, it was reported (Tr. 283) that the Marshal's office, which had the Government's witness Geronimo in protective custody, was called by an anonymous caller who allegedly said, about Geronimo: "If he does anything, he'll be dead". This threat was reported to the court.

During the Voir dire, the court indicated its concern with the "irresponsibility" of the press. After the court's decision to sequester the jury was announced (and the decision to withhold names and addresses), the New York City afternoon paper came out with an article which suggested that there had been specific threats. The court acknowledged later that afternoon that there had been none (Tr. 370-72), suggesting that the press had irresponsibly attributed such a statement to him when, in fact, a statement about the Possibility of threats had been made at some earlier proceeding by an Assistant United States Attorney.

Other problems in insulating the jurors occurred. For example, at one time defense counsel called to the court's attention the fact that there was a "psycho" sitting among the prospective jurors who had been talking to them about Barnes. The court's solution, short of excluding spectators was to have prospective jurors sit on one side of the room, and spectators on the other. (Tr. 373-75).

The court's attitude was expressed at the beginning of the Voir dire :

"It is imperative in a case of this importance that nothing be allowed to occur which might interfere with this jury's impartial and objective study of the evidence and the application of the law.

"As a consequence, in the interest of protecting the privacy of the jurors and their families and saving them from the resultant embarrassment should any such incident occur (having just discussed media interviews), I have elected to maintain the anonymity of the jurors. This will insulate the jurors and their families from such possible inquiries on the one hand and on the other permit the media complete freedom of coverage of this trial." (Tr. 17).

Appellate judges, from the comparative security of their ivory towers, are not burdened, as was this trial judge (and, indeed, as are all trial judges), with the responsibility of providing for the protection of the jurors, witnesses, and counsel.⁷ It can be no answer that no untoward event had occurred up to the opening of the trial. The trial judge had to take such steps as might be necessary in advance to avoid such an event. Cases need not be cited to prove the adage of the futility of locking the barn door after the horse has escaped.

Appellants concede that "it is not asserted that the trial court's failure to disclose jurors' exact residence addresses, standing alone, warrants reversal". (J.Br. 12, n.*). They claim, however, that the judge's refusal to inquire into "ethnic" background "in lieu of their identities" deprived them of a fair trial. We disagree.

The Law

Questions as to the trial procedure to be adopted in any particular case must, of necessity, depend upon the issues raised in that specific case. A general principle of law thus has been developed that the trial judge has broad discretion in conducting the Voir dire, e. g., Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 75 L.Ed. 1054 (1931); United States v. Taylor, 562 F.2d 1345, 1355 (2d Cir.), Cert. denied, 432 U.S. 909, 97 S.Ct. 2958, 53 L.Ed.2d 1083; 434 U.S. 853, 98 S.Ct. 170, 54 L.Ed.2d 124 (1977); United States v. Tramunti, 513 F.2d 1087, 1114 (2d Cir.), Cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975); United States v. Delay, 500 F.2d 1360, 1366 (8th Cir. 1974), as he does in his conduct of the trial generally.

What is required of a trial judge in his conduct of the Voir dire, according to the Supreme Court cases, is that he permit at least some questioning with respect to any material issue that may arise, actually or potentially, in the trial. In Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931), the Supreme Court, exercising "supervisory powers" over the conviction of a Negro sentenced to death for killing a white policeman in the District of Columbia, held that it was error to deny Completely all questioning of veniremen directed at eliciting racial prejudice. The standard set by the Court, which remains the standard today,⁸ is that the trial court's discretion must be exercised consistent with "the essential demands of fairness", Id. at 310, 51 S.Ct. 470, in the particular case. The Voir dire was held unfair in Aldridge because the trial judge "failed to ask any question which could be deemed to cover the subject", Id. at 311, 51 S.Ct. at 472, in order to uncover a "disqualifying state of mind". Id. at 313, 51 S.Ct. 470.

Aldridge rested in part on the fact, brought to the trial court's attention, that counsel had heard that a juror on a previous trial of the case had expressed an attitude about the defendants' race and that of the victim. Id. at 310, 51 S.Ct. 470. The Supreme Court thought that this factor "invite(d) appropriate action by the court", Id. at 311, 51 S.Ct. at 472, so that a fair and impartial verdict would be assured. However, the Court cited an earlier case, Connors v. United States, 158 U.S. 408, 15 S.Ct. 951, 39 L.Ed. 1033 (1895), as an example of a case "where the suggestion of bias was held to be too remote" to require a judge to conduct inquiry. 283 U.S. at 314 n. 4, 51 S.Ct. at 473 n. 4. In Connors, a prosecution for interference with elections, the Court rejected the suggestion that the trial judge had abused his discretion in denying all questioning of potential jurors about political beliefs and affiliations because the potential for exposing a juror's bias against the defendant from such line of questioning was simply too remote.

Although the Court's decision in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), recognized the importance of the peremptory challenge, and approved questioning of potential jurors to form the basis for such challenges, it did not change the basic rule that a trial judge's discretion will be upheld unless a defendant has been precluded from obtaining an impartial jury. Thus, as noted by the First Circuit in Schlinsky v. United States, 379 F.2d 735, 738 (1st Cir.), Cert. denied, 389 U.S. 920, 88 S.Ct. 236, 19 L.Ed.2d 265 (1967):

"(I)n our opinion the purpose of the voir dire is to ascertain disqualifications, not to afford individual analysis in depth to permit a party to choose a jury that fits into some mold that he believes appropriate for his case."⁹

And, as stated in United States v. Robinson, 154 U.S.App.D.C. 265, 269-270, 475 F.2d 376, 380-81 (1973),

"The defense must be given a full and fair opportunity to expose bias or prejudice on the part of the veniremen. . . . The possibility of prejudice is real, and there is consequent need for a searching voir dire examination, in situations where, for example, the case carries racial overtones, or involves other matters concerning which either the local community or the population at large is commonly known to harbor strong feelings that may stop short of presumptive bias in law yet significantly skew deliberations in fact. In a case involving such sentiment, the trial court must take it into account and govern the Voir dire accordingly. Still other forms of bias and distorting influence have become evident, through experience with juries, and have come to be recognized as a proper subject for the Voir dire. An example is the problem that jurors tend to attach disproportionate weight to the testimony of police officers. . . .

"When the matter sought to be explored on Voir dire does not relate to one of those recognized classes, it is incumbent upon the proponent to lay a foundation for his question by showing that it is reasonably calculated to discover an actual and likely source of prejudice, rather than pursue a speculative will-o-the-wisp. . . . Absent such a showing, (there is) no prejudice to the rights of the accused." (Footnotes and citations omitted).

Little purpose would be served by discussing in detail all the many cases in this area. They can be summed up by reference to the discretion standard, and analysis shows that, when questioning can be deemed fair when a jury can be deemed free of bias a trial judge's decision as to the conduct of the Voir dire will be upheld. As long as there is some questioning as to identifiable issues connected in some way with persons, places, or things likely to arise during the trial, an appellate court faced with a cold record should be satisfied that justice has been done.

Illustrative of the cases in this area is Yarborough v. United States, 230 F.2d 56, 63 (4th Cir.), Cert. denied, 351 U.S. 969, 76 S.Ct. 1034, 100 L.Ed. 1487 (1956), in which it was held that there was no error in declining to inquire into jurors' religious backgrounds and affiliations since no matter of religious significance was involved. The court noted that there was nothing to show that defendant belonged to any religious sect or was charged with a crime as to which any sect held particular views. Similarly, in United States v. Daily, 139 F.2d 7 (7th Cir. 1943), a prosecution for avoiding service in the armed services brought against a member of the Jehovah's Witness sect, the trial court had permitted limited inquiry into whether any of the potential jurors entertained a prejudice against members of that minority sect, but refused to ask about their knowledge of matters of the sect's ministry. The Seventh Circuit agreed with the trial court's decision; though religious faith was not directly in issue, still the defendant's religion would be brought to light in the case.

There are numerous cases in which a trial court's decision to limit Voir dire has been sustained because the matter sought to be probed by the defendant was too remote from the issues in the case to warrant the intrusion into the potential jurors' private thoughts. See, e. g., United States v. Taylor, 562 F.2d 1345, 1355 (2d Cir.), Cert. denied, 432 U.S. 909, 97 S.Ct. 2958, 53 L.Ed.2d 1083; 434 U.S. 853, 98 S.Ct. 170, 54 L.Ed.2d 124 (1977) (no error to deny inquiry into prospective jurors' educational backgrounds and into question whether they had children since questioning was fair to permit intelligent challenges); United States v. Hamling, 481 F.2d 307, 314 (9th Cir. 1973), Aff'd, 418 U.S. 87, 138-40, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) (refusal to ask about views toward sex and obscenity was proper in obscenity prosecution); United States v. Workman, 454 F.2d 1124, 1128 (9th Cir.), Cert. denied, 409 U.S. 857, 93 S.Ct. 138, 34 L.Ed.2d 102 (1972) (upholding refusal to ask about attitudes toward drug use, political activists, and antiwar demonstrators in prosecution of antiwar demonstrator for assault on policeman and destruction of government property); Maguire v. United States, 358 F.2d 442, 444-45 (10th Cir.), Cert. dismissed, 385 U.S. 801, 87 S.Ct. 9, 17 L.Ed.2d 48 Cert. denied, 385 U.S. 870, 87 S.Ct. 138, 17 L.Ed.2d 97 (1966) (upholding refusal to inquire about bias against homosexuals when the defense to charge of auto theft was that car owner had given car to defendants after they had threatened to divulge his homosexuality); Wagner v. United States, 264 F.2d 524, 527 (9th Cir.), Cert. denied, 360 U.S. 936, 79 S.Ct. 1459, 3 L.Ed.2d 1548 (1959) (rejecting argument that specific addresses of jurors were necessary to determine "whether there is any proximity to any possible witnesses or information"; "approximate community" was sufficient). Certainly, in all these cases, the information sought would have been helpful to the defense in the sense that Clarence Darrow envisioned that every bit of information might be helpful. However, because no issue was raised requiring inquiry into the matters as to which requests had been made, the courts made the determinations that inquiry must be reasonably limited. It is not, after all, the prospective jurors who are on trial in the cases that come before the courts. It can be imagined that, as counsel seek more and more information to aid in filling the jury box with persons of a particular type whom they believe to be well disposed toward their clients, prospective jurors will be less than willing to serve if they know that inquiry into their essentially private concerns will be pressed. See Yarborough v. United States, supra, 230 F.2d at 63 (religion is "private matter"; no reason to inquire); Cf. United States v. Arroyo-Angulo, 580 F.2d 1137, 1142 (2d Cir. 1978) (jury provided with special entrance to courtroom "to secure their privacy and protection"). As long as a defendant's substantial rights are protected by a Voir dire designed to uncover bias as to issues in the cases and as to the defendant himself, then reasonable limitations on the questioning should not be disturbed on appeal.

Appellants have not advanced any reason that would support the disclosure of the ethnic backgrounds of their trial jurors. There is nothing to indicate that persons of one ethnic type or another are more favorably disposed toward narcotic trafficking or to using firearms. Whatever prejudice may be shared by members of any ethnic group as to black persons would have been uncovered by the questioning about attitudes toward blacks. Thus, it can hardly be said that defendants' right to a fair trial was violated by the limitation on the Voir dire imposed by the trial judge in this case.

As to the court's decision to withhold names and addresses of the jurors, appellants take the position that "jurors must publicly disclose their identities and publicly take responsibility for the decisions they are to make . . .." (J.Br. 28). This, however, is not the law and should not be. If a juror feels that he and his family may be subjected to violence or death at the hands of a defendant or his friends, how can his judgment be as free and impartial as the Constitution requires? If "the anonymous juror feels less pressure" as the result of anonymity (J.Br. 28), this is as it should be a factor contributing to his impartiality. The court's decision as to anonymity and sequestration comported with its obligation to protect the jury, to assure its privacy, and to avoid all possible mental blocks against impartiality.

As noted above, See note 3, Supra, the history of violence in this district is well known. There was much pretrial publicity playing up the alleged acts of violence on the part of the actors in the case. It would be nothing short of irresponsible were a trial judge sitting in New York City to close his eyes to these circumstances.

In fact, some fifteen years ago, this court anticipated the problem now before us in another case involving a narcotics conspiracy. In a decision written by Judge Friendly, in which Judge Smith and now-Justice Marshall concurred, the court stated that the events in that case, involving threats to jurors in the form of unsigned letters,

"demonstrat(ed) the need for precautions assuring that the addresses, and perhaps even the names, of jurors in cases such as this will be held in confidence; courts must protect the integrity of criminal trials against this kind of disruption, whether it emanated from defendants' enemies, from their friends, or from neither."

United States v. Borelli, 336 F.2d 376, 392 (2d Cir. 1964), Cert. denied sub nom. Cinquegrano v. United States, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965). It seems that the time has come to approve the precautions suggested in Borelli. It will not do to say that, because there were no actual threats received in the case at bar, Judge Werker's action was inappropriate, for the circumstances were such that the suggestion of disruption was manifest. That is not to say that the courts should sanction the approach taken by this trial judge in every case. However, in a case that generated as much pretrial publicity as this one did and in which allegations of dangerous and unscrupulous conduct abounded, precaution was best taken so that fears would not become realities.

If the giving of names and addresses had been required so that investigation could have been made in the neighborhood or from their families as to their characteristics, any semblance of an impartial jury would have been destroyed. Fear of retaliation against themselves or members of their families would inevitably have been uppermost in their minds during their deliberations. Sequestration would have been no protection in the event of a guilty verdict. And since communication with their families during sequestration would have been permitted, a mere threat to the family of one juror would have permeated the entire jury.

As to religion, our jury selections system was not designed to subject prospective jurors to a catechism of their tenets of faith, whether it be Catholic, Jewish, Protestant, or Mohammedan, or to force them to publicly declare themselves to be atheists. Indeed, many a juror might have a real doubt as to the particular religious category into which they could properly place themselves. The same can be said of ethnic background.

The courts have recognized the increasing peril in other contexts. For example, in United States ex rel. Lloyd v. Vincent, 520 F.2d 1272 (2d Cir.), Cert. denied, 423 U.S. 937, 96 S.Ct. 296, 46 L.Ed.2d 269 (1975), a case dealing with the propriety of closing the courtroom to spectators while two undercover narcotics agents testified, Judge Lumbard, concurring, took note of the increasing perils associated with narcotics investigations and prosecutions. He said:

"Any judge of a court which is concerned with the prosecution of offenses against the narcotics laws knows all too well the great dangers and difficulties which face law enforcement officers . . . . In no area of law enforcement have murder, mayhem and terror been more frequently used against disclosure and testimony. Against this background of judicial knowledge and notice, the undisputed assertion of the district attorney (relating to the dangers posed to the two agents) was sufficient reason for the county judge's action in closing the court to spectators during their testimony." 520 F.2d at 1275.

Unfortunately, the situation which prompted the trial judge's actions in Lloyd, was not uncommon. The courts must recognize the danger, and permit the trial judge appropriate leeway to assure that the trial he is to conduct will be conducted fairly and impartially, with a minimum of intrusion into the lives of the prospective jurors.

Appellants' characterization of the procedure followed in this case as a "blind-man's bluff" as constituting a deprivation of their right to meaningfully probe the jurors' potential biases is overstated. A criminal defendant is entitled, under the law, to a fair and impartial jury. To be sure, there must be sufficient information elicited on Voir dire to permit a defendant to intelligently exercise not only his challenges for cause, but also his peremptory challenges, the right to which has been specifically acknowledged by the Supreme Court despite the lack of a constitutional statutory source. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). To say, however, that the limitations imposed in this case constituted a denial of the right to an intelligent exercise of the challenge is to underestimate the ability of counsel to gain the same, or substantially the same, insights into the prospective juror's thoughts by observing his demeanor, generally, and by listening to the answers to questions concerning family, education, and other matters (which were covered rather extensively in this case), as one might gain by being informed of a person's residence address or ethnic background. One's style of clothes, for example, and one's manner of speaking, certainly reveal much about a person's character. Indeed, it is unlikely that the disclosure of any bit of information will contribute to an impression of the person that differs materially from the impression gained by appearances and answers to questions bearing on the case, such as the questions concerning attitudes toward blacks that were asked here.

What we are confronted with, then, is a Voir dire procedure under which Both the prosecutor and defense were equally in the dark as to names and addresses of the prospective panelists, and where neither side was told the exact ethnic background or religion of those persons. Both sides, however, had an arsenal of information about each person that was based on his responses to questions concerning his own life, as well as his attitudes about the issues that would arise in the case. This can hardly be deemed "inadequate". The law as to jury selection¹⁰ is not so unbending that it cannot, or should not, be accommodated to the realities of modern day trials in large narcotics cases which have created such problems for the courts in large cities. Clarence Darrow's ideal has already yielded to what has been thought to be the greater necessity, I. e., the need to streamline the Voir dire process by resting the control of it in the district judge, See Fed.R.Crim.P. 24(a), subject to the demand that the essentials of the case should be the subject of inquiry. If that demand is satisfied, then so will have been the rights of the parties.

In sum, the trial transcript here reveals that the trial court followed the Voir dire precepts held by the decisions to be essential. The suggestions made by appellants as to fields into which they would roam would, if we were blindly to accept them, lead to Ad absurdum ends. If Darrowesque questioning of prospective jurors were allowed, namely "religion, politics, social standing, family ties, friends, habits of life and thought", any semblance of juror privacy would have to be sacrificed. There is neither statutory nor constitutional law that requires disclosure of information about jurors unrelated to any issue as to which prejudices may prevent an impartial verdict.¹¹ Nor has any case been brought to our attention that casts any doubt on the procedure followed by the trial judge in this case. Since the court gave counsel full opportunity for an intelligent exercise of challenges by inquiring into the essentials of the case at hand, appellants were not deprived of any trial right which would require a new trial.¹²

Appellants place great stress on an incident which occurred after some six weeks of trial and at the end of a court day. Four defense lawyers were walking along a public sidewalk on a street adjacent to the courthouse when they passed the bus in which the jurors were sitting. Counsel for the defendant Guy Fisher claimed that one of the jurors directing his eyes at him, raised his middle finger in a sign generally recognized to be the antithesis of approval and indicated by an expression on his face "distaste for me (the counsel)". (J.Br. 32). At the time, three other defense lawyers were with Fisher's counsel. The incident was brought to the court's attention that evening. Counsel for Fisher requested that the particular juror be dismissed and that an alternate juror be substituted. The following morning, the court declined to dismiss the juror or to conduct a Voir dire on the subject, which would have involved the juror in question and possibly other panel members. The court felt that a cautionary instruction would be the wisest course to follow, but permitted counsel to put the facts, as he viewed them, on the record. After hearing full argument, the court stated, in substance, that an examination into the subject, namely, a Voir dire, would involve not only all four defense counsel present at the time of the incident, but also possibly the other jurors, and that such an examination "in my (his) opinion would be extremely prejudicial, especially in view of the fact that in all probability the juror is going to say no, I didn't do it, and, as a result of that, there will be resentment which will be engendered throughout the jury against the four of you". (Tr. 5896). The court believed that "no matter what I tell them . . . there is bound to be some passing back and forth of communication". (Tr. 5896-97).

Not waiting for the final charge, the court told the jury, without reference to any juror, counsel, or the incident itself, that their personal feelings should not "be reflected for or against any of the defendants or government attorneys". (JA 592).

Appellate courts have given, and should give, broad discretion to trial judges to pass upon charges of juror misconduct or disqualifying prejudice made visible in a tangible way. Other cases presented under other circumstances in other courtrooms may provide guidelines, but each case is actually Sui generis. See, e. g., United States v. Bufalino, 576 F.2d 446, 451-52 (2d Cir. 1978), Cert. denied, 439 U.S. 928, 99 S.Ct. 314, 58 L.Ed.2d 321 (1978); United States v. Hockridge, 573 F.2d 752, 756 (2d Cir. 1978), Cert. denied sub nom. Easton v. United States, 439 U.S. 821, 99 S.Ct. 85, 58 L.Ed.2d 112 (1978); United States v. Panebianco, 543 F.2d 447, 457 (2d Cir. 1976), Cert. denied, 429 U.S. 1103, 97 S.Ct. 1129, 51 L.Ed.2d 553 (1977).

In Panebianco, for example, defense counsel complained that, during cross-examination of a Government witness, one juror had commented "Why doesn't he stop wasting my time with these questions?" and "Well, he's already answered that question"; a second juror had purportedly said "He's got some nerve asking these questions". 543 F.2d at 457. Although the attorneys had asked the trial judge to question the two jurors to ascertain bias, this court upheld the trial court's decision to simply reiterate an instruction not to discuss the case or to form any opinion. Writing for this court, Judge Lumbard stated that "the jurors were only exhibiting impatience . . . . That jurors react naturally does not mean they are biased. By reiterating his cautionary instruction to the jury, (the trial judge) did all that was necessary. Under the circumstances this was probably a wiser course than a voir dire and was clearly not an abuse of discretion". Id.

Even in the cases where other procedures have been taken by a trial judge faced with allegations of juror bias during the trial and approved by this court, the approval has been based on the reality that the trial judge observing the jury on a day to day basis (and in the case before us, on a week to week basis), is in the best position to sense the atmosphere of the courtroom as no appellate court can on a printed record. Any incident, such as the one that allegedly occurred in this case, puts court and counsel on the alert to observe the jurors even more intently during the remaining time, which, in this case, was another four weeks. In those four weeks, no other incident was noted or reported.

Fortunately, appellate courts are shielded from knowledge of the deliberations in the jury room. We are not so unworldly, however, as not to know that there are skilled counsel who profess to be able to foretell a juror's reactions. We, in turn, can only look at the facts objectively. We know that there was no verdict of guilty against Guy Fisher, whose counsel was allegedly the target of the juror's distasteful gesture, but rather a "hung jury" as to that defendant. We cannot, therefore, verify the prophecy of Fisher's counsel that "This man (the juror in question) is certainly not going to vote not guilty in this case". (Tr. 5892). There is thus no basis for any conclusion that the juror was faithless to his jury commitment. We do know, also, that two defendants were acquitted, that Barnes himself was acquitted on the FOURTH, FIFTH and ELEVENTH Counts, and that McCoy was acquitted on two firearms counts (NINTH and TENTH). Any fear that the allegedly prejudiced juror could have led the jury to a verdict of guilty is belied by the result.

Under the circumstances, the court exercised its discretion wisely. A Voir dire might well have brought forth appeals on the ground that such an occurrence as happened here was prejudicial to all defendants. The trial judge's conduct of the matter was entirely appropriate.

On the trial, the Government introduced into evidence the income tax returns obtained from the Internal Revenue Service (IRS) of defendants Barnes, Hayden, Guy Fisher, Hines, and Wayne Sasso. All appellants now attack the refusal of the trial court to hold a hearing so that they might inquire as to the papers on which, and the manner by which, the Government obtained these returns. As to the returns themselves, appellants assert that their prejudicial effect outweighed their relevance to the issues and also violated appellants' privilege against self-incrimination.

Obtaining the Returns

Appellants argue that they were entitled to have the information upon which the court issued its order and to a hearing on their motion to obtain it. 26 U.S.C. § 6103(i)(1),¹³ a part of the Tax Reform Act of 1976, provides for disclosure of tax returns and return information to federal officers for non-tax-related criminal investigation purposes, upon an Ex parte order by a federal district court judge, when authorized by the Attorney General, the Deputy, or an Assistant. The judge determines "on the basis of the facts submitted by the applicant" whether (1) a specific criminal act has been committed; (2) the return (or return information) is probative; and (3) the return is the most probative evidence of the alleged criminal act. If these questions are answered in the affirmative, the tax information may be entered into evidence in a criminal proceeding under 26 U.S.C. § 6103(i)(4).

There is nothing in the statute providing for notice to the taxpayer, a hearing on the application, or disclosure of the information on which the judge acted. In short, the procedure specified is Ex parte.

Appellants, relying on United States v. Mangan, 575 F.2d 32 (2d Cir. 1978), would have the statute construed otherwise, and would analogize the disclosure order to search warrants and wire-tap orders. In Mangan, Judge Friendly, discussing the statute in a different context, did refer to the procedure for obtaining returns as a "type of search warrant procedure". Id. at 38. However, Congress, in broadening the taxpayers' protections by enacting the Tax Reform Act of 1976, of which 26 U.S.C. § 6103(i) is a small part, had before it the search warrant and wire-tap procedures, which differ from the procedure specified in the new statute. The legislators were apparently content to rely on a judge's competence to pass upon the facts submitted and the need for disclosure in a given case. Although the Mangan case refers to a "suppression motion" in connection with the use of tax returns, such a reference to an issue that was not specifically before that panel (I. e., whether a defendant may test the use of tax returns by means of a motion to suppress) is not determinative. Nor is it determinative that in Mangan, Judge Friendly cited a wire-tap case, United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), to support a conclusion that an application for disclosure of tax returns Must be authorized by one of the officials named in the statute, for although it is true that there is some degree of similarity between the procedures involved in obtaining disclosure of tax returns and wire-tap orders of search warrants, the procedures are governed by different statutes. Unlike the wire-tap and search warrant provisions, See18 U.S.C. §§ 2518(9), (10) (wire-tap) and Fed.R.Crim.P. 41(f) (search warrant), there is nothing in the Tax Reform Act indicative of congressional intent to subject a judge to examination by defense counsel as to the facts on which he based an order to disclose tax returns, or his rationale therefor. The courts should be loath to imply an exclusionary sanction in this context, especially since none appears in the Tax Reform Act itself and since civil and criminal penalties have been expressly provided. 26 U.S.C. §§ 7213(a) (criminal penalties), 7217 (civil remedies in favor of taxpayer).

Relevance of the Returns

Evidence of the possession and receipt of huge amounts of money is highly relevant in an operation in which the costs of the commodity and the profits therefrom are astronomical. According to the evidence at trial, the various defendants in the conspiracy, during the period thereof, owned and/or operated (through "leasing" companies, on one of which operated out of the Harlem River Motors Garage, one of the focal points of the conspirators' activities) a variety of cars, including Mercedes Benz, Cadillacs, Corvettes, a Citroen Maserati (Barnes), a Jaguar (Baker), and a host of other cars. As part of its proof, the Government introduced the tax returns of defendants Barnes, Hayden, Guy Fisher, Hines, and Wayne Sasso (Sasso was acquitted), which showed reported "miscellaneous" income totalling collectively over $1,380,000 for the years 1974-76. Barnes and the other four all used the same tax attorneys' firm in Detroit, Michigan, a city quite distant from the alleged sites of the defendants' operations. The Government also showed that defendant Monsanto filed no federal tax returns during the alleged conspiracy, and that Hatcher reported only moderate amounts of income, despite the fact that Monsanto was the driver of at least 17 leased cars during the period, and Hatcher was the driver of 13, including a Mercedes Benz. (Hatcher was also shown to have purchased a Mercedes from a New Jersey doctor in 1976, for the sum of $16,500, paid in ten- and twenty-dollar bills.)

The mere fact that the defendants listed large amounts under the headings of "miscellaneous" and "other" income was, in and of itself, a warning signal that the money came from a source which the recipient preferred not to disclose. A legitimate source, as the Government argues, could easily have been identified and stated.

It has long been the rule that

"where a defendant is on trial for a crime in which pecuniary gain is the usual motive, evidence of the sudden acquisition of money by the defendant is admissible, even though the source of the money is not traced". United States v. Jackskion, 102 F.2d 683, 684 (2d Cir.), Cert. denied, 307 U.S. 635, 59 S.Ct. 1032, 83 L.Ed. 1517 (1939).

See also United States v. Hinton, 543 F.2d 1002, 1012-13 (2d Cir.), Cert. denied sub nom. Carter v. United States, 429 U.S. 980, 97 S.Ct. 493, 50 L.Ed.2d 589 (1976) (in narcotics prosecution, proper to introduce evidence of large expenditures of cash, as well as evidence of failure to file returns); United States v. Magnano, 543 F.2d 431, 437 (2d Cir. 1976), Cert. denied, 429 U.S. 1091, 97 S.Ct. 1101, 51 L.Ed.2d 536 (1977) (evidence of defendant's possession of huge sums of cash admissible to show, Inter alia, "means" for narcotics trafficking); United States v. Tramunti, 513 F.2d 1087, 1105 (2d Cir.), Cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975) (same); United States v. Falley, 489 F.2d 33, 38-40 (2d Cir. 1973) (proper to show defendants' substantial expenditures for travel costs and tax returns suggesting no legitimate source). The rule is no less applicable in this case; that the Government showed receipt of large amounts of money by the defendants' own declarations that they had received it as income makes the evidence no less relevant. Not only was it probative of the conspiracy and substantive counts, but, as to Barnes, it was offered to show an element of the offense of conducting a "continuing criminal enterprise", 21 U.S.C. § 848, I. e., that the defendant obtained "substantial income or resources" from the enterprise. 21 U.S.C. § 848(b)(2)(B).

As the Government argues, the returns were also relevant in this case to establish the existence of the conspiracy and its membership. The defendants' returns were all prepared by one law firm in Detroit, Michigan. Hayden's return for 1976 showed a marked increase in miscellaneous income over his 1975 income, which corresponded with the Government's theory that Hayden was "promoted" to the Number 2 spot in the "Barnes conspiracy" in 1976 after Guy Fisher, the previous Number 2 man, was jailed. Indeed, Guy Fisher's return for 1976 shows a marked decrease over that same period.

If there was any prejudice stemming from the Government's use of the tax returns, it was of defendants' own making.

Self Incrimination

Defendants argue that, though they did not assert their Fifth Amendment privilege on the returns themselves, they should have been permitted to assert it when the Government sought to use the returns at trial. The short answer to this contention is Garner v. United States, 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976), in which the Court held that disclosures made on tax returns were not "compelled incriminations". Had defendants wished to claim the privilege, they should have done so on the return itself.

It will not do to argue that, since a refusal to disclose income has been held to render a return "no return at all", United States v. Jordan,508 F.2d 750 (7th Cir.), Cert. denied, 423 U.S. 842, 96 S.Ct. 76, 46 L.Ed.2d 62 (1975), appellants could have been prosecuted under 26 U.S.C. § 7203 for filing "no return" had they invoked their privilege instead of making their disclosure. The prosecution in Jordan was undertaken against a taxpayer whose attempted assertion of the privilege was deemed invalid insofar as the defendant gave No information other than his name, address, and social security number, purporting to make a "blanket fifth amendment declaration" as to the remaining questions, even the innocuous ones. However, as is made clear in United States v. Sullivan, 274 U.S. 259, 263-64, 47 S.Ct. 607, 71 L.Ed. 1037 (1927), the right to make a Valid claim of privilege is available even as to amount of a taxpayer's income, as well as any other item on the return which could legitimately cause self-incrimination. If, as appellants argue, cases "such as Jordan " are undercutting the Sullivan Court's guarantees against convictions for willful failure to file a tax return, 26 U.S.C. § 7203, in cases where a Valid claim of privilege has been asserted, then the proper remedy is to appeal from those convictions pursuant to Sullivan, not to change the rule enunciated in Garner. Since appellants did not claim the privilege on their returns, their Fifth Amendment rights were not violated at trial.

Appellants also claim error with respect to a portion of the prosecutor's summation, in which he discussed the large sums of cash taken from various defendants and reported on the tax returns. They argue that the prosecutor's challenges to the defense attorneys to explain the sources of the income constituted impermissible comment on defendants' failure to testify, in violation of their privilege to refrain from so testifying.

In United States v. Bubar, 567 F.2d 192, 199 (2d Cir.), Cert. denied, 434 U.S. 872, 98 S.Ct. 217, 54 L.Ed.2d 151 (1977), a case in which the prosecutor commented upon the defendants' failure to explain Government evidence, the court held that

"the substance of the prosecutor's comments (did not) violate appellant's constitutional rights. The prosecutor is entitled to comment on a defendant's failure to call witnesses to contradict the factual character of the government's case, United States v. Dioguardi, 492 F.2d 70, 81-82 (2 Cir.), Cert. denied, 419 U.S. 873, 95 S.Ct. 134, 42 L.Ed.2d 112 (1974), as well as his failure to support his own factual theories with witnesses. United States v. Rodriguez, 556 F.2d 638, 641 (2 Cir. 1977); United States v. Lipton, 467 F.2d 1161, 1168 (2 Cir. 1972), Cert. denied, 410 U.S. 927, 93 S.Ct. 1358, 35 L.Ed.2d 587 (1973). A constitutional violation occurs only if either the defendant alone has the information to contradict the government evidence referred to or the jury 'naturally and necessarily' would interpret the summation as a comment on the failure of the accused to testify. United States ex rel. Leak v. Follette, 418 F.2d 1266 (2 Cir. 1969), Cert. denied, 397 U.S. 1050, 90 S.Ct. 1388, 25 L.Ed.2d 665 (1970)."

As in Bubar, so in Barnes, the prosecutor was not suggesting the absence of contradicting evidence that only the defendants could supply. Certainly, there were witnesses other than defendants who could have testified about nonnarcotics-related sources of cash and "miscellaneous" income. Appellants' assumption that they were the only persons who could explain the source is contrary to a realistic view of the situation. No jury could possibly think that no independent witnesses to the receipt of income existed.

We therefore conclude that the returns were properly obtained and received into evidence, that appellants were not deprived of their rights against self-incrimination, and that the prosecutor's summation was within the bounds of propriety.

Appellants argue reversible error in the trial court's refusal to accept proof which they claim would have established multiple conspiracies operating out of the Harlem River Motors Garage, namely a conspiracy, separate from the Barnes conspiracy, operated by one Robert Stepeney, not a defendant. By an offer of proof "they wished to prove: that there was an alternative source of drugs at the garage and therefore a separate and distinct conspiracy from the one charged in the indictment". (McCoy Br. 19). In other words "if they were members of any conspiracy at all, it was not one involving Nicky Barnes, but, rather, one headed by Robert Stepeney and possibly involving Shepard Franklin". (Joint Reply Br. 39).

The proffered proof would have consisted of calling Sam Bellovin, an accountant for Harlem River Motors Garage, who would have testified that he had delivered to IRS agent Kukis certain "Stepeney papers" which had come from a Harlem River Motors Garage safe; Kukis, in turn, would have testified that he had discovered among Stepeney's papers a quantity of heroin; and Martorell, a chemist, that the heroin was 23 percent pure an unusually high percentage.¹⁴ Appellants claim that Stepeney himself had been observed at the Harlem River Motors Garage at least five times on the night of February 25, 1977, the date on which an alleged "transaction" took place.

Appellants also argue that the proffered proof would have affected the credibility of Wallace Fisher who had told Geronimo that Barnes oversaw all transactions at the Harlem River Motors Garage, presumably on the theory that Stepeney, too, played a similar role.

If the proffered evidence is viewed in the light most favorable to the defendants, the most that could have been proved was that Stepeney was a heroin dealer who worked out of the Harlem River Motors Garage. The defense did not offer any proof that Stepeney was the manager of an organization or was Barnes' partner, boss, or anything else. The Stepeney-Franklin operation was irrelevant to the existence of a Barnes conspiracy because it would merely have shown the existence of another division of the Barnes conspiracy, or at most, a parallel conspiracy which operated out of the Harlem River Motors Garage. Since there was sufficient evidence connecting all the defendants to the Barnes conspiracy, the trial court, which had the benefit of approximately six weeks of trial, was justified in excluding the irrelevant evidence of Stepeney's possible heroin activities.

All defendants place great emphasis on a claim that the Government failed to disclose material in its possession as required by the principles enunciated in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and under 18 U.S.C. § 3500. The issue involved a difference in the testimony of Geronimo and DEA Agents as to the activities of Geronimo and Fisher on the evening of November 29, 1976, between the hours of approximately 5:00 P.M. and 9:00 P.M. Geronimo had testified to an extensive trip with Fisher in Fisher's car to various bars and a poolroom in upper Manhattan. Upon their return to Fisher's garage, Geronimo is purported to have told Agent Diaz that they had discovered the source of the narcotics about to be sold that evening by Rollock to Diaz, namely, it was coming from "Jazz" a nickname for Hayden, who in turn worked for Barnes and was "blessed" by "Nicky". (Tr. 2054-55, 4243).

This account, defendants contend, was completely false as shown by a surveillance report of Agent Shea (GX. 3511B for identification) used by Agent Lawler to refresh his recollection as to the events of November 29th. Out of the wide discrepancies¹⁵ defendants make two contentions: (1) the Government should have advised them of the existence of Exh. 3511B in advance of the Geronimo testimony so that it might have been used on cross-examination, and (2) that the Government knew or should have known that Geronimo's testimony was perjured. From this situation defendants drew the conclusion that it "was a deliberate eliciting of false testimony from a key witness concerning a material issue at trial". (McCoy Br. 42). It should be noted that Lawler and Special Agent Thomas Rooney conducted the surveillance of Geronimo. Their observations were consolidated in a report by Agent Shea. Lawler was called to testify by defendant Barnes.

Every inconsistency in witnesses' testimony does not mean that one witness is guilty of perjury the other not. These are questions for jury resolution. The important appellate question is: was material which might have affected the jury's verdict improperly withheld from the defendant? In this case, we think not.

First, we agree with the Government that the "inconsistencies" between Geronimo's testimony and the report were not so great as to be completely contradictory. Lawler's and Rooney's surveillance covered only one of the three hours during which Fisher and Geronimo had been together.

Second, even if inconsistent, at the end of the day on which Geronimo completed his testimony, the exhibit in question (Exh. 3511B Id.), together along with other § 3500 material was given to defendants. At this point they had two choices, either to recall Geronimo for further cross-examination or to call the Agents who had conducted the surveillance or both. They chose to call agent Lawler, whose testimony contradicted that of Geronimo, and was consistent with his earlier surveillance report. The fact that defendants' counsel now think that they could have made better use of the material on Geronimo's cross-examination cannot justifiably impute to the prosecution the elicitation of perjured testimony from Geronimo or the willful suppression of § 3500 material. Furthermore defense counsel took full advantage of the difference in the testimony in their attacks on Geronimo's credibility in their summations. We thus find that appellants were not deprived of Brady material.

Appellants argue that it was error to receive in evidence on the Government's direct examination, written agreements between the Government and certain witnesses stating the understandings between the parties as to benefits to be bestowed by the Government on the witnesses in return for their truthful cooperation. Appellants' claim is that such agreements are tantamount to improper vouching by the Government for the credibility of the witnesses.

The practice of reducing such agreements to writing has grown out of situations which have frequently arisen in which there have been disputes as to the terms of oral understandings on the subject. The writing presents the opportunity for both parties to know the exact nature of their commitments.

While this court has repeatedly upheld the use of cooperation agreements in the face of claims of "improper vouching" by the Government for its witnesses, United States v. Ricco, 549 F.2d 264, 274 (2d Cir.), Cert. denied, 431 U.S. 905, 97 S.Ct. 1697, 52 L.Ed.2d 389 (1977); United States v. Araujo, 539 F.2d 287, 290 (2d Cir.), Cert. denied, 429 U.S. 983, 97 S.Ct. 498, 50 L.Ed.2d 593 (1976); United States v. Aloi, 511 F.2d 585, 597-98 (2d Cir.), Cert. denied, 423 U.S. 1015, 96 S.Ct. 447, 46 L.Ed.2d 386 (1975); United States v. Koss, 506 F.2d 1103, 1112-13 (2d Cir. 1974), Cert. denied, 421 U.S. 911, 95 S.Ct. 1565, 43 L.Ed.2d 776 (1975), the decisions in these cases were made with respect to cooperation agreements introduced by the Government on redirect examination of witnesses whose credibility had been attacked on cross-examination. In the case at bar, appellants made timely objections to the use of agreements made by the two main prosecution witnesses, informers Robert Geronimo and Promise Bruce, when they were offered during the direct testimony of these two witnesses.

After the time of the trial in this case, the court decided United States v. Arroyo-Angulo, 580 F.2d 1137 (2d Cir. 1978), which involved the same point appellants raise here. In Arroyo-Angulo, this court recognized that, although the use of a cooperation agreement cuts both ways insofar as it suggests not only a promise to testify truthfully, but also a motive to testify as the Government wished (regardless of where the truth may lie), the agreement, when introduced by the Government, is used primarily to bolster the credibility of a witness.

Thus, the Arroyo-Angulo court decided that, under established rules of evidence, the Government should not be permitted to introduce an agreement into evidence on direct examination. In Arroyo-Angulo, however, the error in admitting the agreement on direct examination was found not to be reversible since the objection to its use had not specifically concerned itself with the timing of its admission, and since cross-examination had been vigorous and thorough. The agreement would thus have been admissible at a later stage since "the cooperation agreement was a matter which the jury could properly consider in relation to the witness' credibility". 580 F.2d at 1147.

In view of the fact that Arroyo-Angulo was decided after the trial in this case, and considering the "inevitability of defense counsels' attack on (Geronimo's and Bruce's) credibility", Arroyo-Angulo, Supra, 580 F.2d at 1147, the error in admitting the agreements on the Government's direct examination cannot be deemed sufficiently prejudicial to warrant reversal. The agreements were used by the prosecution here only to show the express terms of the understanding between the witnesses and the Government, and there was no improper argument on the part of the prosecutor, either during examination of the witnesses, or during openings or summation, which would constitute improper vouching. The jury was repeatedly told that they, and they alone, had the duty of considering the witnesses' testimony and of giving it the weight they thought due to it. Appellants were thus not prejudiced by the improper timing of the introduction of the agreements.

Error is also asserted in the refusal of the trial court to suppress evidence derived from an electronic surveillance device (referred to as a " bug") which had been installed at the Harlem River Motors Garage, the locale of much of the narcotics traffic. The court order for the installation of the bug was obtained on February 9, 1977, upon the affidavits of DEA Special Agent Pavlick (the Agent) and an Assistant United States Attorney. The period of interception was from February 18, 1977 to March 10, 1977. Five tapes which resulted from this interception were received in evidence. Defendant Hatcher had made a motion, orally denied, to suppress the tapes on the ground that the Agent's affidavit contained "false and/or perjurious allegations". The motion was subsequently renewed after the Government had disclosed to the court and to defendants that an informant, Promise Bruce, had recanted certain information which he had given to the Agent and which the Agent, in turn, had included in his affidavit. The court below ruled that no facts had been advanced which suggested that Pavlick had known when he submitted his affidavit that any information was false, and further held that, even omitting Bruce's information, the application still set forth facts constituting probable cause.¹⁶

The primary issue on this subject is whether the Agent knew that his statements were "false and/or perjurious" or were "deliberately misleading" misstatements of fact as otherwise known to him, for, unless the Affiant committed a knowing falsehood or "other imposition" on a judicial officer, United States v. Dunnings, 425 F.2d 836, 840 (2d Cir. 1969), Cert. denied, 397 U.S. 1002, 90 S.Ct. 1149, 25 L.Ed.2d 412 (1970), suppression is not required. In United States v. Merchant Diamond Group, Inc., 565 F.2d 252 (2d Cir. 1977) (per curiam), this court repeated the established rule that " '(p)robable cause is not defeated because an informant may have erred or lied, "as long as the affiant accurately represented what was told him" '." Id. at 253, Quoting Mapp v. Warden, 531 F.2d 1167, 1172-73 (2d Cir.), Cert. denied, 429 U.S. 982, 97 S.Ct. 498, 50 L.Ed.2d 592 (1976), Quoting in turn United States v. Sultan, 463 F.2d 1066, 1070 (2d Cir. 1972). Indeed, since the date of oral argument in this case, the Supreme Court has itself dealt with the issue of the necessity for a hearing in the face of allegations of false statements in affidavits supporting search warrants. In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Court held that, as a matter of Fourth Amendment law, a hearing was to be afforded to a defendant who made "a substantial preliminary showing" that an affiant had knowingly and intentionally made a false statement in an affidavit, or had included such a statement with reckless disregard for the truth, but only "if the allegedly false statement is necessary to the finding of probable cause". Id. at 156, 98 S.Ct. at 2677. The Court expressly limited its holding, stating that "(t) he deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant". Id. at 171, 98 S.Ct. at 2685. Thus, the rule is clear that, absent a showing that Pavlick himself had knowingly included false statements in his affidavit, there is a basis neither for a hearing, nor for suppression itself. Furthermore, as held by the court below, even if false statements had been included, since probable cause remained even in the absence of the allegedly falsely stated facts, no relief was necessary.

There is nothing in the record to indicate that Pavlick had been aware, prior to submitting his affidavit, that the information provided by Geronimo and Bruce had been false. As the Government argues, there was no showing that Pavlick, at the time of the affidavit, knew of Lawler's surveillance on November 29, even assuming that such knowledge should have been included if known. Even if Pavlick had been made aware of Lawler's surveillance efforts on November 29 at the time he (Pavlick) applied for the " bugging" authority, there is nothing which would have alerted him to any inconsistency, for the informant's statement did not detail the activities of Geronimo and Fisher during the three-hour period in dispute, See note 16 Supra, which was the period of Lawler's surveillance.

Furthermore, as the district court suggested, there was sufficient information upon which to find probable cause for the issuance of the surveillance order even without the allegedly false information: whether Geronimo and Fisher had driven around in a car for some three hours, or whether the car had been garaged for over an hour, might well be immaterial to the question whether electronic surveillance was necessary. Furthermore, whether Fisher had stated on November 24th that the heroin was to be coming from Barnes or was from "Barnes' people", as the tape of Fisher's conversations proved to be the case, would not be determinative of the need for installation of the bug at the Harlem River Motors Garage. The suppression motions were thus properly denied.¹⁷

Appellants urge that all sentences must be vacated because of the trial court's improper consideration in imposing sentence of their failure to cooperate. The subject of sentencing and the formulation of standards therefor, if such be possible, has recently received increasing attention from courts, bar associations, the bar and from the writers of various legal treatises. However desirable some standards may be to avoid present, frequently gross, disparities in sentencing, the fact will always remain, because of the many variables attached to each case, that each situation requires its own special treatment. Would that a simple algebraic formula consisting of the crime, times the defendant's history, times extenuating circumstances, which would equal the proper sentence, be productive of universally fair sentences; were this the case, the courts should be the first to welcome its adoption. In actual practice the rationale of sentencing is not that simple nor should it be.

Although appellants would overly stress "failure to cooperate" as a motivating factor in the imposition of the sentences by the trial court, a review of the sentencing minutes shows it only to have been one factor which the court took into consideration. Each defendant's case and the degree of criminality was weighed and evaluated. The court followed the admonition: "Let the Punishment Fit the Crime".¹⁸

The cases cited by appellants are illustrative of the principle that each sentence should be imposed only after a consideration of the particular situation presented. United States v. Ramos, 572 F.2d 360 (2d Cir. 1978), on which appellants rely, involved a young man with no prior record of narcotics violations either as a distributor or a user, but who, for much needed money, had acted as a transporter (sometimes referred to as a " mule") of drugs (a first offense). He had cooperated to the extent of furnishing the name of the person for whom he had been acting but had ceased his cooperation because he "feared the consequences to his family". Id. at 361. It was quite obvious that this unusually harsh sentence (10 years' imprisonment plus 10 years' probation) was prompted by Ramos' refusal to continue his cooperation. In imposing sentence the court may consider a defendant's cooperation or lack thereof as long as All factors are considered. United State