Swygert, Chief Judge, Pell and Stevens, Circuit Judges.
Each of the eight appellants was convicted on one or more counts of an indictment charging conspiracy and substantive violations of the Federal narcotics laws.*fn1 The conspiracy allegedly continued from as early as August of 1966, to and including October 18, 1967. On that date an indictment which had been returned in March, and which named only five of the appellants as defendants, was superseded by a second indictment naming them all. The substantive counts related to four specific transactions, all of which were also identified as acts pursuant to the continuing conspiracy.
The first three transactions were purchases negotiated and consummated by one Hudson Bonner, an informer, who used Government funds, delivered the purchased heroin to Government agents, was under continual surveillance, and carried a concealed transmitter during his critical discussions with defendant Earl Matthews. On November 2, 1966, he obtained 29.5 grams of heroin, 24% pure, from Matthews for $675; on November 8, 55 grams for $1,200; and on December 7, 81.5 grams for $1,500. In each instance the money was paid to Matthews in advance and a series of conversations, usually by telephone, took place before Matthews finally advised Bonner where and when he would receive delivery of the heroin.
The fourth transaction was witnessed by 12 Government agents. It was an attempted partial distribution of 6,000 grams of heroin by defendants Matthews and Pearman to defendants Stephens, Oliver and Westbrook on the sidewalk in front of 7808 South Morgan Street in the evening of March 5, 1967. The heroin was in small packages, which in turn were carried in a large brown paper bag. As the five defendants were standing in a circle, three with hands outstretched to receive delivery, and Pearman with his hand reaching into the paper bag, one of the agents announced his office and placed all five under arrest. They scattered and fled in different directions, but all were promptly apprehended and the bag of heroin was recovered. Based on the prices paid by Bonner in the earlier transactions, the heroin seized on March 5, 1967, had a value of about $120,000.
The conspiracy encompassed not only the four specific transactions identified in the substantive counts, but other incidents as well. On January 25, 1967, Bonner had made an advance payment of $1,500 to Matthews who returned the funds several days later because he was unable to deliver the heroin. On the evening of March 5, 1967, when the five defendants congregated at 78th and Morgan, Bonner was waiting for Matthews in a nearby tavern to consummate a $2,000 purchase which they had previously arranged. One Willard Evans, originally named as a defendant and severed before trial, testified that he also purchased narcotics from Matthews. On one occasion in November, 1966, he received a package of heroin from Matthews near 75th and Stewart immediately after he witnessed delivery of that package to Matthews by defendant Stephens who was a passenger in a station wagon driven by defendant Wilbert Holmes. Three of the five defendants arrested on March 5, 1967, had Wilbert Holmes' unpublished telephone number in their possession.*fn2
Defendants Auckland Holmes and Earl Williamson were not shown to have been present at the delivery of any narcotics. Each was seen in the company of other defendants on various occasions. On one such occasion defendant Pearman exchanged attache cases with Auckland Holmes in a parked car; the case delivered to Holmes was filled with cash. On another occasion Auckland Holmes and Earl Williamson met in a car wash station and carried on a conversation which was partially overheard by two agents; in that conversation they referred to Pearman, to the transactions between Matthews and Bonner, and to the collections to be made the next day, and discussed the need to consult counsel about certain aspects of their business.
Statements by Matthews to Bonner, which were described in detail in Bonner's testimony, and many of which were overheard by agents via the concealed transmitter, contained a number of references which could fairly be understood to relate to Auckland Holmes, Wilbert Holmes and Earl Williamson, and to their participation at an executive level in the organized distribution of narcotics. Many of these references were in colloquial and ambiguous form, but the guilty verdicts require such evidence to be construed favorably to the Government.
Appellants have advanced a veritable spate of contentions. We have considered them all with care but find that only a few raise questions of substance. Each appeal has been briefed and argued separately, but we shall discuss the contentions in categories.
I. Sufficiency of the Evidence.
Four of the defendants raise questions concerning the adequacy of the proof.
Wilbert Holmes was convicted on the conspiracy count but was not charged with any substantive offense. Assuming that the evidence of conspiracy was adequate as to the other defendants, he argues that his intent to cooperate in an unlawful enterprise cannot be inferred either from his presence when a single unlawful act was committed or from his mere association with conspirators.
In evaluating this argument we start with the premise that the existence and nature of the conspiracy has already been established, and that the evidence relating to Wilbert Holmes was all admissible and credible. The question is whether that evidence, taken as a whole, supports the conclusion that he was a knowing participant.
The witnesses Bonner and Evans made repeated purchases from the enterprise. In each instance the arrangements preceding the delivery by Matthews included precautions which would minimize the likelihood of observation or apprehension. The mere presence of a third party would strongly suggest that he was intended to perform a useful function in connection with the transaction.
In November of 1966, when a package of heroin was delivered to Matthews near 75th and Stewart, Wilbert Holmes was not merely present; he drove the car to what must have been a prearranged delivery point; he saw Stephens hand Matthews the package, and apparently engaged in a brief conversation with him. There is no question about the nature of the transaction itself (Evans having witnessed it and described it in his testimony) or about the fact that it was in furtherance of the conspiracy. It is reasonable to infer that Holmes knew exactly what was happening and that he was driving the station wagon at that time and place because he was a participant. That inference is not contradicted by any evidence offered on Holmes' behalf.*fn3
On the contrary, it is corroborated by other circumstances. Participants in the conspiracy used unpublished telephone numbers; so did Holmes. They knew each other's unpublished numbers. Three of the five who were arrested as Pearman and Matthews were making a distribution from a bag of 6,000 grams of heroin had Wilbert Holmes' unpublished number in their possession, one on a matchbook cover and one on a scrap of paper. His address book, seized at the time of his arrest, contained Stephens' address and the unpublished numbers of defendants Williamson, Pearman and Westbrook, as well as his brother, Auckland Holmes. A business, rather than purely social, relationship between those defendants and Wilbert Holmes may reasonably be inferred. The only common business activities disclosed by the record was their joint participation in the distribution of heroin. Taking the evidence as a whole in the light most favorable to the Government, and noting the absence of contradictory evidence, the jury could properly infer that Wilbert Holmes was a knowing participant in the conspiracy when he and Stephens delivered a package of heroin to Matthews in November, 1966. That fact is sufficient to sustain his conviction under Count I. See United States v. Spadafora, 181 F.2d 957, 959 (7th Cir. 1950) cert. denied, 340 U.S. 897, 71 S. Ct. 234, 95 L. Ed. 650.
According to the Government's version of the evidence, Auckland Holmes was the top executive in the joint venture.*fn4 His principal contention is that the evidence linking him to the conspiracy and to sales to Bonner is unworthy of belief.
He does not seriously attack the credibility of the evidence that Pearman delivered a briefcase full of cash to him in a parked car or the evidence of his association with other defendants. He concentrates his attack on the agents' testimony concerning the conversation with Earl Williamson which they claimed to have overheard in a car wash near 79th and St. Lawrence. He argues that the testimony is inherently incredible because an alleged mastermind of a million dollar narcotics business would not be so stupid as to permit himself to be overheard in an incriminating conversation in a public place; because the two white agents would obviously have attracted suspicion in the heart of a black neighborhood; and because the physical evidence, as explained by the owner of the station, made it impossible for the witnesses to have been standing at the location described in their testimony.
To reject these arguments we need not pass judgment on Auckland Holmes' business acumen. Even if we assume that the leader of a sordid enterprise, who entrusts $120,000 of merchandise to delivery from a paper bag on a street corner, is a man of genius, he might nevertheless suffer an occasional lapse of attention. The most obvious subterfuge is sometimes least apt to be recognized. Moreover, the conversation might well have been meaningless to most casual listeners. Only because the agents were familiar with Bonner's purchases, and the fact that he had been buying less than $2,000 quantities, did most of the comments have any real significance. Of greatest importance, however, is the fact that the arguments addressed to credibility were made to and rejected by the jury. It is not our function to substitute our appraisal of witnesses that we neither saw nor heard for that of jurors who did observe and listen to them.
The physical evidence, which we will not relate in detail, does indicate some uncertainty or possible confusion as to the precise location of the agents with reference to the conversants. These points were stressed in argument to the jury. In our view they are of relatively minor importance and do not undermine the apparent reliability of what the witnesses testified that they heard.
Once the substance of this testimony is accepted, the evidence of Auckland Holmes' guilt is overwhelming. For then there can be no question as to the admissibility of comments of Matthews to Bonner relating to both Holmes and Williamson. United States v. Cerone, 452 F.2d 274, p. 284 (7th Cir. 1971). Without detailing this evidence, we simply state our conclusion that Auckland Holmes was found guilty beyond a reasonable doubt. He supervised or directed the activities of Pearman and Matthews and, therefore, aided and abetted the commission of the substantive offenses.*fn5
Williamson challenges the sufficiency of the evidence that he aided and abetted the sales to Bonner on November 2, November 8, and December 7, 1966, and also the evidence of conspiracy. The latter contention is that there is no evidence of his knowledge of illegal importation of drugs.*fn6
The argument with respect to the substantive counts is that the incriminating evidence obtained by overhearing Williamson's conversation in the car wash on January 25, 1967, merely proved subsequent knowledge of the earlier offenses rather than advance planning or participation in them. It is true that the conversation occurred after the offenses, but as we understand its relationship to the record as a whole, it plainly proves that Williamson aided and abetted the earlier sales.
Apart from the importation question, there is no doubt as to the sufficiency of the evidence of Williamson's participation in the conspiracy. The day after the car wash conversation he was observed accepting a stack of currency from Pearman. The conversation with Auckland Holmes clearly identified him as a superior to Pearman in the venture and indicated that he had issued instructions relating to the sales to Bonner. His participation in the joint venture being clear, Matthews' conversations with Bonner were admissible against him. United States v. Jones, 438 F.2d 461, 466 (7th Cir. 1971) In those conversations Williamson was again identified as a principal in the transactions. We are satisfied that the evidence establishes Williamson's guilt on the substantive counts.
If we correctly understand his argument on the conspiracy count, he contends that the Government must prove that a defendant either had physical possession of heroin or that he had actual knowledge of its illegal importation. Physical possession gives rise to a valid statutory presumption that defendant knew of the illegal importation. Turner v. United States, 396 U.S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610. We think the evidence was sufficient to prove that Pearman and Matthews, both of whom had physical possession of heroin in the regular course of their illegal business, were subordinates of Williamson in that enterprise, and that he had sufficient control over them to make the presumption applicable to him as well. Cf., United States v. Maroy, 248 F.2d 663, 666 (7th Cir. 1957); United States v. Dillard, 376 F.2d 365 (7th Cir. 1967). It would pervert the purpose of the statutory presumption to apply it to the delivery man but not to his supervisor.
Westbrook also contends that the statutory presumption is inapplicable to him because there is no proof that he had possession of any narcotics. His argument is stronger than Williamson's because the jury found him not guilty on the conspiracy count. He was convicted only on Count VIII relating to the transaction on March 5, 1967, when five of the defendants were arrested.
Notwithstanding the jury verdict on the conspiracy count, the March 5 incident was sufficient to establish Westbrook's participation in the joint venture,*fn7 and, therefore, to make the evidence relating to the other defendants admissible against him. Based on the procedure followed in making sales to Bonner and Evans, as well as Matthews' statements to the effect that deliveries would not be made unless paid for in advance, including specific comments on the March 5 transaction, it is reasonable to infer that Westbrook had already paid for the heroin which he had extended his hand to receive when the agents aborted the delivery. He was on the verge of obtaining physical possession of narcotics when arrested.
Westbrook contends that since he was a customer of Pearman and Matthews, rather than their superior, it is inappropriate to treat their possession as his for purposes of construing the statute. He relies on Hernandez v. United States, 300 F.2d 114 (9th Cir. 1962), holding that possession of narcotics by one conspirator is not necessarily imputed to all other participants in the conspiracy. The court held that, in view of the broad application of general principles of conspiracy law, the rational basis for the statutory presumption did not necessarily encompass conspirators who had neither actual possession nor "dominion and control" over the drug.
"Engrafting the doctrines of vicarious liability taken from the general law of conspiracy upon the presumption of guilt in this highly penal statute would extend the statutory presumption over so wide and uncertain an area of conduct, and with such severe consequences to the actors, that it is a step not to be taken by a court without clear congressional direction." 300 F.2d at 122.
We need not disagree with that holding to find that the legislative purpose of the statutory presumption is directly applicable to Westbrook.
The statute omits an otherwise essential element of proof because the defendant's possession of heroin creates the reasonable inference that he must have known that it has been illegally imported. Turner v. United States, 396 U.S. 398, 415-416, 90 S. Ct. 642, 24 L. Ed. 2d 610. The fact of physical possession makes it reasonable to infer that the defendant has knowledge of the nature and source of the product with which he is dealing. That inference is equally reasonable if the defendant himself does not have physical possession but one of his subordinates in the illegal venture does. We use the words "dominion and control" to ascribe possession to some conspirators, but we are actually determining that the legislative intent reasonably encompasses them if the circumstances support the same inference with respect to knowledge of importation as would physical possession itself. See 300 F.2d at 116, 118-119. Similarly here, it is plain that Westbrook was fully aware of the nature of the substance for which he had already paid, and can as reasonably be charged with knowledge of its illegal importation as if his outstretched hand had actually gripped the packet of heroin. In our view it is fair to test defendant's "possession" within the meaning of the statute by his proximity to the heroin itself and the nature of his participation in a transaction which he must have fully understood. We do not believe a fair construction of the statute requires independent proof of Westbrook's knowledge of illegal importation in view of the posture of the delivery at the time of his arrest. Congress did not intend to draw such a delicate line.
Although each of the defendants has adopted all of the arguments made by the others, we find no other attack on the sufficiency of the evidence that merits discussion.
II. The Fourth Amendment Contentions.
Five of the defendants advance arguments founded on the Fourth Amendment.
The indictment returned on March 22, 1967, did not name Wilbert Holmes as a defendant. On October 18, 1967, the grand jury returned a superseding indictment adding new defendants. The court authorized the issuance of arrest warrants for the additional defendants, including Holmes. Agents who then had his house under surveillance were immediately advised by radio to arrest him. After effecting entry to the house, an agent requested Holmes to identify himself. Holmes stated that his identification was in his wallet upstairs, where he then led the agent. In the master bedroom on the second floor Holmes indicated that the wallet was in a nightstand. The agent then opened the nightstand where he found the wallet, a loaded gun, and a telephone book containing the numbers of four of Holmes' co-defendants and the address of another.*fn8 Thereafter, the bedroom and other portions of the house were searched and various items were seized. The only item received in evidence, however, was the telephone book found in the nightstand.
Holmes does not question the propriety of his arrest but contends that the scope of the agent's search was unreasonable. Most of the parties' arguments concern the propriety of that portion of the search which followed the inspection of the nightstand. Even if reasonable limits were thereafter exceeded, we do not believe the record would warrant holding that an exhibit seized while the search was within proper limits would thereby be retroactively rendered inadmissible.
Although there is a possibility, as Holmes argues, that the request for identification was a subterfuge to obtain access to other portions of the house, such a request is proper police procedure and we believe the examination of the nightstand to have been a reasonable search incident to the lawful arrest. The district court properly denied the motion to suppress the telephone book.
Auckland Holmes was arrested in his apartment. Two address books and three business cards were seized during the search which ensued. In a footnote in his brief he suggests that arguments comparable to those advanced by Wilbert Holmes are applicable to him. It seems quite clear that the search of his apartment was reasonable under pre-Chimel standards.*fn9 Moreover, no motion to suppress these exhibits was made in the trial court.
Oliver was one of five defendants arrested on March 5, 1967. On the following day he appeared before a commissioner and was admitted to bail on condition that he execute a $10,000 bond. On March 22, 1967, he was indicted and the amount of his bond was increased to $25,000. Subject to the restraints imposed by the terms of his bond, Oliver was at large until October 18, 1967.
On that date a superseding indictment was returned before Judge Austin, who stated on the record that it should "be suppressed until such time as those named are in custody." He then entered an order authorizing the issuance of bench warrants for the defendants not named in the original indictment and further providing that the bond previously set for the other defendants, including Oliver, should "stand as bond in this instance." Although no new warrant for Oliver's arrest was issued, agents who apparently were advised of the new indictment by a radio communication did arrest him and, incident to that arrest, seized $6,029 in cash from his person. A motion to suppress the cash on the ground that the arrest was illegal was initially denied.*fn10
Oliver's contention is the converse of Wilbert Holmes'. He does not question the reasonableness of the search if the arrest was valid; he argues, however, that the warrantless arrest was unconstitutional. The Government responds by pointing out that the return of the indictment established probable cause, see, e.g., United States v. Amabile, 395 F.2d 47, 53 (7th Cir. 1968), vacated on other grounds, Giordano v. United States, 394 U.S. 310, 89 S. Ct. 1163, 22 L. Ed. 2d 297, and, therefore, the agents had statutory authority to make an arrest. 18 U.S.C. § 3052, 26 U.S.C. § 7607.
The issue is not resolved so easily. Not only must there be reason to believe that a prospective arrestee is guilty of a crime; in addition, there must be some purpose to be served by making an arrest. During the entire period between March and October 18, 1967, probable cause to believe that Oliver had committed an offense continued to exist because he was under indictment. But since he had been admitted to bail, no purpose could have been served by continually rearresting him. ...