Appeal from the United States District Court for the Eastern District of Wisconsin No. 74-CR-29 - Myron L. Gordon, Judge.
Tom C. Clark, Associate Justice,*fn* Cummings, and Sprecher, Circuit Judges.
After trial on Count I of a ten-count indictment,*fn1 the three appellants were convicted by a jury in the district court of a conspiracy to import heroin, to distribute and possess (with intent to distribute) heroin, to use communication facilities to facilitate the importation and distribution of heroin, and to travel and use facilities in foreign commerce with intent to distribute the proceeds of a business enterprise involving heroin, all in violation of 21 U.S.C. §§ 846 and 963. Dorn was sentenced to a term of imprisonment of fourteen years, Smith was sentenced to a term of ten years, and Mancor was sentenced to a term of three years.
Appellants, along with Albert and Gudrun Herrmann,*fn2 organized a drug ring operating between Vancouver, British Columbia in Canada and Milwaukee, Wisconsin. In June of 1972, Albert, experiencing troubles with U.S. Immigration authorities, went to Vancouver to visit his friend George W. Turner. During his visit to Vancouver, he was introduced to Dorn. Albert discussed with Dorn the possibility of his working for Dorn, reselling heroin in the Milwaukee area. It was agreed that Dorn would sell Albert 35 ounces of 50% pure heroin for $2,000 per ounce plus $1,000 fee for delivery in Milwaukee. The agreement called for each ounce of heroin to be buried in advance by one of Dorn's couriers at specific locations in Milwaukee. Upon payment to Dorn, Albert would be supplied with a slip of paper bearing a codified address of the burial locations. Also during his trip to Vancouver, Albert met appellants Smith and Mancor, introduced to him by either Dorn or Turner. Albert returned to Milwaukee where on June 19, 1972, he called Dorn in Vancouver. One day later Dorn arrived in Milwaukee. Also arriving in Milwaukee then, (but taking separate transportation) was Smith. All three met to discuss the sale of heroin. At this meeting Dorn asked Smith in Albert's presence if he had finished burying the heroin, and then instructed Albert to buy some small jars, some lactose, a scale, and masking tape. Dorn also gave Albert an ounce of heroin on credit. Dorn and Smith traveled to Milwaukee three other times during the summer and early fall of 1972 to bury heroin and to meet with Albert.
During the early fall, Albert became dissatisfied with the arrangement with Dorn and Smith, and later with Mancor. In September, Mancor arrived in Milwaukee as Smith's assistant. In early October Albert went to Montreal to discuss alternative sources of heroin with his friend Turner. While in Montreal, Albert obtained two ounces of heroin from Turner and Turner's associate Raymond Shepherd. The two also told Albert that they would be receiving greater supplies of heroin and would be willing to sell him up to $30,000 worth of heroin. Albert traveled to Montreal a second time in late November to complete plans with Turner and Shepherd but ultimately was unable to carry through with his design for further heroin purchases from them. This was due to a delay in the receipt of the large shipment of heroin, coupled with rumors of Shepherd's arrest. Therefore Albert continued his association with Dorn, receiving addresses from him, sending him money from time to time, and ordering more heroin.
In December a new method of delivery was employed to cut delivery costs. Instead of making delivery in Milwaukee, delivery was to be made on the west coast. Accordingly, on December 8, Gudrun flew to Seattle, Washington, where she met Dorn and Mancor and took receipt of three condoms containing heroin. For this heroin, Dorn received $5,000 from Gudrun. Gudrun then flew back to Milwaukee and gave the heroin to her husband. On December 28, Albert flew to Vancouver and bought two more ounces of heroin from Dorn for $4,800. Soon thereafter, Albert had a falling out with Dorn over a $500 delivery fee and as a result began to look elsewhere for other sources of heroin.*fn3
In the spring of 1973, Albert began buying heroin from one William Peters in Vancouver. One of Albert's regular customers at this time was Special Agent Lee who in late April proposed to Albert a large purchase involving a kilogram or more of heroin. In an effort to accommodate this order from Lee, Albert contacted several of his sources of supply, one of whom was Dorn. Albert inquired of Dorn about the availability of a large amount of heroin in Vancouver. Dorn advised him that the situation was unsafe but agreed to see if anything would be available. On May 2, Albert called Dorn who informed Albert that heroin was available at $2,400 per ounce. Later in May, Albert went to Vancouver where, among other people, he met again with Dorn and discussed the availability of heroin for purchase. However, the proposed deal never materialized and within a month Albert was arrested by the authorities in Milwaukee.
At trial the Government's case relied principally upon the testimony of Albert and his ex-wife Gudrun, substantial documentary corroboration of Albert's and Dorn's activities,*fn4 and tapes of telephone conversations between Dorn and Albert in April, 1973. Six issues are raised on this appeal:
(1) Whether the trial court properly admitted evidence of conspiratorial activity alleged as overt acts in the indictment but which had occurred approximately three months following an alleged termination of the conspiracy by the Government's principal witness?
(2) Whether the trial court properly admitted under Rule 801(d)(2)(E), Federal Rules of Evidence, statements made by a conspirator to his co-conspirator wife which described the framework of a newly formed criminal enterprise then involving Dorn and Smith?
(3) Whether the use of transcripts of certain tape-recorded telephone conversations given to the jury at trial and during its deliberations for their assistance was permissible?
(4) Whether the trial court abused its discretion in denying a motion for mistrial based upon a government witness' single reference to an apparent previous incarceration of appellant?
(5) Whether sufficient evidence was presented to support Mancor's conviction of conspiracy to violate ...