Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 71 CR 980 THOMAS R. McMILLEN, Judge.
Swygert, Cummings, and Sprecher, Circuit Judges. Swygert, Circuit Judge, concurring.
Defendant was charged in a two-count indictment with the possession and distribution of 206.5 mg. of cocaine in violation of 21 U.S.C. § 841. After a jury trial, he was found guilty on both counts. Thereafter, the district court granted his motion for arrest of judgment on the ground that Congress had no power to regulate the use and distribution of cocaine without requiring proof in each prosecution of some connection with interstate commerce. We reversed and remanded the cause for entry of judgment on the verdict. 492 F.2d 6 (7th Cir. 1973), certiorari denied, 414 U.S. 1135, 94 S. Ct. 879, 38 L. Ed. 2d 760 (1974). Defendant was then sentenced to two-year terms of incarceration plus statutory special parole terms of three years, to run concurrently on each count.
At the February 1972 trial, the Government's chief witness, Charles Crimaldi, testified that on June 22, 1971 defendant telephoned to invite him to breakfast at the Hyatt Regency O'Hare Hotel in Rosemont, a Chicago suburb, on June 23. Crimaldi accepted and then contacted Special Agent David Haight of the Bureau of Narcotics and Dangerous Drugs ("Bureau").*fn1
The testimony at trial further shows that on the morning of June 23rd, Crimaldi met with Haight and Special Agent Edward Nolan at the Howard Johnson Motor Lodge near the Hyatt Regency O'Hare. The agents searched Crimaldi and his automobile and placed a kel-set transmitter on him. Afterwards Crimaldi proceeded to the Hyatt Regency O'Hare where he joined Esposito in the coffee shop at 9:30 a.m.
The breakfast meeting was monitored on the kel-set by Agent Nolan. Although an attempt to record the conversation on tape proved unsuccessful, Agent Nolan's account of the conversation was substantially the same as Crimaldi's. Crimaldi told defendant that he was interested in buying some drugs and understood that Esposito might know of a source. Defendant replied that he used to have a source but did not know whether it was still active. He agreed to find out whether the source was operative and asked Crimaldi about quantities. Crimaldi said that he wanted 2 kilos of cocaine per week. Esposito replied that amount "would be good but we couldn't meet every week, it would have to be a once-a-month drop on it, because if we met every week, [we] would be taking too many chances of getting arrested." Esposito left the table for a few minutes and upon his return stated that "The party wasn't in and he had left a phone number to have the party get in touch with him." After breakfasting, both men left the hotel through separate exits.
Crimaldi returned to the Bureau's office with Haight and Nolan. He received a message there to call his home. When he did so, he was given a number for contacting Esposito. He called the number and Esposito said, "Listen, I have to see you." They arranged to meet at the same coffee shop at four o'clock. A recording of this telephone conversation was played to the jury. Before the meeting, Crimaldi was again fitted with a transmitter and he and his car were searched by Haight and Nolan. On this occasion, no agent testified that he heard the conversation over the kel-set.
Before the afternoon meeting, Special Agent Frank Cruz began surveillance of defendant from the third floor balcony of the Hyatt Regency O'Hare. He saw Crimaldi come into the coffee shop-lounge area on the second level and approach Esposito. Cruz witnessed Esposito's attempt to place a Parliament cigarette package in Crimaldi's shirt pocket. This attempt failed, apparently because Crimaldi's own cigarettes were in that pocket. Defendant then placed the package in Crimaldi's left jacket pocket. Crimaldi testified that Esposito told him that the package contained a sample of the cocaine.
Defendant and Crimaldi proceeded to the rooftop lounge of the Hyatt Regency O'Hare for a drink. Defendant explained that he had contacted his source who had 25 ounces of cocaine, with only 5 ounces committed to another. Defendant said he could obtain 20 ounces of cocaine at $750 an ounce for Crimaldi. The latter remonstrated about the high price and told defendant to call him at home that evening for an answer about the proposed sale.
Crimaldi then drove to the nearby Howard Johnson Motor Lodge and gave to Agent Haight the cigarette package which Esposito had delivered to Crimaldi. He and his car were searched a third time. Enclosed in the package was a piece of tinfoil containing a glassine packet with 206.5 mg. of cocaine, the amount mentioned in the indictment. Agent Haight testified that Crimaldi smoked Parliaments and that, during the search prior to the meeting where the sample was delivered, the package of Parliaments then on his person was searched by Agent Nolan. Haight also testified that Crimaldi had his original package of cigarettes at the search after the delivery in addition to the one containing the cocaine, and that the package containing the cocaine was a "soft pack," while Crimaldi's own cigarettes were in a "hard pack."
At 11:00 p.m. that night, defendant phoned Crimaldi and arranged to meet him the next afternoon. A tape of this call was also played for the jury. Crimaldi asked, "That's 20 - what we talked about?" Defendant responded in the affirmative and said, "I will call him right now." Five minutes later, defendant again telephoned Crimaldi and asked if he wanted "the five." Crimaldi told defendant that because of defendant's prior advice that he had somebody else for the other five, he had "backed off" as to it. However, Crimaldi told defendant that he would take "two [referring to the 20 ounces] for sure" and would let defendant know at their meeting on the next day "about the other five."
On the next afternoon, Crimaldi returned to the Regency Hyatt O'Hare. Bureau Agent Haight saw Esposito driving through the parking lot, but he failed to meet Crimaldi. That evening Esposito telephoned Crimaldi and explained that it got so "hot" at the parking lot, referring to the Bureau agents there, that he had returned to his home.*fn2 Later defendant telephoned Crimaldi to say that things were getting complicated and that he was sorry he was unable to help him. Tapes of these conversations were also played for the jury.
Three witnesses testified for the defense. Two were called to impeach Crimaldi's testimony. Defendant's brother Frank testified that Crimaldi was a heroin addict and had given Frank heroin in the past. Edward Brabec, a Chicago Journeymen Plumbers Union official, testified that Crimaldi had been expelled from the union for non-payment of dues. An objection to Brabec's testimony was sustained on the grounds that it failed to impeach anything which Crimaldi had said on the witness stand. On cross-examination, Brabec acknowledged that Crimaldi's expulsion from the union for non-payment of dues did not mean that he would have been unable to work as a plumber in the years in which he had said that he had so worked. Furthermore, Brabec stated that under the practices of his union a non-member could work out of the union's hiring hall and that the records which he had with him pursuant to a subpoena would not show whether Crimaldi had worked as a plumber after his expulsion from the union.
Defendant also testified and gave a different version of the June 23 events. According to defendant, Crimaldi solicited the meeting in order to borrow money. Crimaldi also asked defendant whether he could provide Crimaldi with heroin, and Esposito admitted replying, "Yes, maybe I can." Defendant denied that the subject of heroin came up thereafter and denied that cocaine was ever mentioned. According to defendant, at the afternoon meeting on June 23, Crimaldi requested $2,000 from Esposito's union because of juice loan obligations. Defendant replied that instead he would try to obtain personal funds for Crimaldi. Defendant denied that he gave Crimaldi any cocaine that afternoon.
Government's Non-Disclosure of Additional Impeachment Material About Crimaldi
On May 25 and 27, 1971, Bureau Agents Boerner, Braseth and Safir taped an interview with government informer Crimaldi in Washington, D.C. The existence of this tape was not disclosed to defense counsel prior to or at the trial. On the day before the hearing on the third motion for a new trial, the prosecutor who tried the case notified defense counsel that he had discovered the taped interview.
After the May 1974 hearing on that motion for a new trial, Judge McMillen examined in camera the 131-page transcript of the Crimaldi taped interview before filing an order denying a new trial. In the order he pointed out that "the government does not deny that the tape was made by him [Crimaldi] and that its existence was known to [the initial prosecutor Peter Vaira, who was in the case only until the indictment was returned, but not to J. Michael Fitzsimmons who tried the case*fn3] before trial." However, the court concluded that failure to show the tape to defense counsel or to submit it to the court in camera was not ground for setting aside the jury's verdict of guilty. The court described the tape as follows:
"The tape contains much irrelevant and confidential information about criminal activities of persons other than Crimaldi. It does not impeach his trial testimony. It does confirm the defendant's information that Crimaldi was involved in collecting for a juice loan racketeer and that he has admitted to various illegal acts in this occupation as well as to other illegal acts, some similar to those for which he had previously been convicted and some not. He does not admit * * * to any activities involving narcotics."
We have also examined the transcript of the tape and a summary of the highlights thereof and largely agree with the district court's description of its contents. It contains no evidence tending to exculpate the defendant. Since the statement was made before the transaction charged in this case, its only value to defendant was in possibly impeaching Crimaldi.
The district court's opinion was based on four grounds:
1. Information revealed in the transcript was only collaterally relevant to Crimaldi's testimony and does not exculpate defendant. Therefore, according to the court below, the only conceivable use the defense could have made of the tape would have been in cross-examining Crimaldi about his reputation and criminal activities. In the absence of perjury, this type of material need not be disclosed under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194; Napue v. Illinois, 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173; Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763.
2. Most of the matters discussed by Crimaldi in the interview concerned his association with Sam de Stefano in the juice loan business. Although defendant and his counsel knew of this activity of Crimaldi, defense counsel did not exhaust the inquiry at the trial as "a ...