Bolden v. State

Liss, J., delivered the opinion of the Coúrt. On December 21, 1977, an indictment was returned by the Grand Jury for Prince George’s County charging nine defendants with conspiracy to violate the Controlled Dangerous Substances Act of Maryland, conspiracy to distribute cocaine, conspiracy to possess cocaine with intent to distribute, and conspiracy to possess cocaine. Carey Stuart ⁶⁴⁵ Taylor and Ellen Pankey Bolden, appellants, were two of the indicted co-conspirators. An important portion of the evidence offered by the State was based on intercepted telephone communications involving a number of the indicted defendants.

A motion, timely filed, was offered to suppress evidence obtained by the wire communications intercepted by the State pursuant to court authorized wiretaps, and a hearing was held before Judge Howard S. Chasanow, who denied the motion to suppress. Appellants Taylor and Bolden were tried by a jury in the Circuit Court for Prince George’s County and were convicted of conspiracy to distribute cocaine. Sentences were imposed on each of the defendants, and it is from these judgments that this appeal is filed. Appellants raise eight issues to be determined by this appeal.

They are: I. Did the trial court err in denying appellant’s motion for judgment of acquittal made at the close of the State’s case when the indictment charged a single conspiracy and the proof at trial disclosed multiple conspiracies?

II

Did the trial court err in denying appellant’s motion for separate trial when the evidence showed multiple conspiracies and not a single overall conspiracy between Carey Stuart Taylor, Ellen Pankey Bolden and others?

III

Did the trial court err in allowing the State, at the close of all the evidence, to amend the indictment, over objection by the appellant, by striking from the indictment the names of indicted co-conspirators?

IV

Did the trial court err in refusing to instruct the jury that the mere distribution of cocaine from Carey Stuart Taylor to Amos Steve Tinker for Mr. Tinker’s personal use, on September 27 and October 1, 1977, by itself, was not sufficient evidence to prove a conspiracy between Carey Stuart Taylor and Amos Steve Tinker? V. Did the trial court err in refusing to instruct the jury that if the jury found multiple conspiracies to exist in the instant case and not a single overall conspiracy, as alleged in ⁶⁴⁶ the indictment, that the jury must return a verdict of not guilty as to the appellant?

VI

Did the trial court err in granting the State’s motion for continuance of trial date, over objection, when the basis for the motion for continuance was to attempt to obtain additional probative evidence against the appellant when the State had not exercised reasonable diligence to secure the evidence prior to trial?

VII

Did the trial court err in refusing to suppress for use as evidence all telephonic communications intercepted between September 30, 1977 and October 3, 1977 when the order of court authorizing the interception of telephonic communications covered telephone number 891-2926 and the evidence reflected that Amos Tinker changed his telephone number to 891-2460 on September 30, 1977?

VIII

Did the trial court err in failing to suppress all wiretap evidence in light of the State’s failure to obtain a sealing order immediately following the expiration of the wiretap orders? I, IV and V The State contends that the alleged conspiracy to violate the Controlled Dangerous Substances Act began in April of 1977. At that time, Amos Tinker had an eighth of a kilogram of cocaine which was “stashed” in the home of Ellen Pankey Bolden, one of the appellants. This cocaine was to be delivered to certain unspecified individuals.

In June, 1977, Ramsey Harris, Jr. (an indicted co-conspirator) was advised by Tinker that Bolden would sell him some cocaine, which Bolden later did. In August of 1977, Harris paid Tinker and Bolden for cocaine which was delivered to him by Tinker. After each of these sales, Harris sold the cocaine obtained from Bolden and Tinker to purchasers unknown to the suppliers. Appellant Taylor became involved in the conspiracy in September of 1977.

On September 27, 1977, Tinker asked Taylor to supply him with some cocaine for his personal use. Taylor engaged one Leonard Lee on the phone, and Tinker gave Lee directions to reach his home. ⁶⁴⁷ In late September of 1977, Tinker was awaiting a shipment of drugs from a supplier in Miami, Florida later identified as Jorge Puga. On September 28, Tinker told Harris he had been unable to contact his supplier. On September 30, Tinker advised Taylor he still had not reached his source and that he needed more drugs for his own use.

The police set up surveillance of Tinker’s home and observed Tinker and Taylor walk to Taylor’s car where he handed a lunch-sized paper bag to Tinker. In early October, Tinker told Bolden that he had not heard from his supplier at that time. Sometime between October 9, 1977 and October 13, 1977, Tinker finally reached his supplier. The State’s theory of the case was that Taylor was the “money man” who supplied the funds to purchase the illegal narcotics.

Tinker advised Taylor he had finally been able to contact “his other brother” and asked Taylor “how far do you want me to go?” Taylor told Tinker he could purchase two kilograms. Tinker then called Bolden and told her he would call his “other brother” that night at about 9:00 p.m. At about 8:00 p.m., Tinker left his own home and drove to the home of Jane Busch (indicted as Jane Busch Johnson) and made two phone calls from her home to a number for Puga in Miami. Later that evening, a collect phone call was made and accepted from a Miami number to the phone in Busch’s home.

At 6:30 p.m. on October 13, Tinker drive to Bolden’s home and gave her $100 for receiving his phone calls. The evidence indicated that Tinker had paid Bolden $600 over a period of time for accepting his phone calls. The following day, Tinker called Taylor and told him he had ordered “it.” Tinker then began his arrangements to pick up the two kilograms of cocaine. On October 14, 1977, he told Denise Hackett (another indicted co-conspirator) to make travel arrangements to Florida for Daniel Tinker (brother of Amos Tinker and an indicted co-conspirator) and herself.

Amos Tinker also instructed her how to dress for the trip to and from Florida. In the course of the conversation between them, he told Denise that Taylor was bringing him some money. Tinker’s arrangement with his brother, Daniel, was that he was to be paid $1,000 for picking up the drugs in ⁶⁴⁸ Miami and returning with them to Washington. On October 14, Amos Tinker got cold feet and notified Hackett and Bolden that he “might go talk to the man and postpone the trip” and after advising Denise he “had his man sitting with him,” aborted the trip to Miami.

At this point in the evidence the State introduced testimony which showed Bolden’s further involvement in Tinker’s drug activities. The witnesses testified that Bolden was employed as a police officer in the Metropolitan Police Department and that during the period of time pertinent to this case was assigned as a dispatcher for the Department. One of the State’s witnesses testified that the Department had access to a Naddis computer which stored information about past and present narcotic distributors. On October 14, 1977, during a telephone conversation Tinker asked Bolden to “find out if there’s something on me.” The following day Tinker was advised by Bolden that there was nothing there.

Two hours later Bolden assured Tinker she could not have been mistaken in the information she gave him because she had used the computer. On October 16, Tinker again asked Bolden to check before he committed himself to the drug venture. Several additional conversations ensued between Bolden and Tinker in which she assured Tinker there was nothing1 on him in the computer. Tinker, in the latter part of October, began to reschedule the trip to Florida.

He set up the plan with Daniel Tinker and Denise Hackett and called Taylor to “get my belongings that you brought me by mistake last week.” Taylor agreed to supply Tinker with $44,000 toward the purchase of a quantity .of cocaine. On October 31, 1977, Daniel and Amos Tinker and Denise Hackett traveled by air to Miami, Florida where they were met by an unidentified male at the airport who drove them to his house. There Denise and Daniel changed into other clothes for the return bus trip. Prior to their departure from the house, Amos gave Daniel a zippered travel bag containing cocaine.

Daniel and Denise then boarded a bus for the return trip to Washington, D.C. On November 1,1977, Amos Tinker called Ramsey Harris, Jr. and advised him he had a quantity of drugs ready for ⁶⁴⁹ distribution and suggested Harris come to his home to complete a deal. Tinker then called Taylor and advised that “he was all right” and that the deal had been made in Florida. Later that evening, Denise called Amos to advise him that she and Daniel were home. Daniel was advised to pick up the cocaine and take it to Daniel’s apartment.

At about 2:00 a.m. on November 2, Daniel, Amos and Denise met at Daniel’s apartment. Amos took four large bags, each containing one kilogram of cocaine, out of the locked zippered bag. Amos separated the cocaine from two of the larger bags into smaller quantities and placed the smaller quantities into other plastic baggies. He placed the smaller bags and the two large bags into the zippered travel bag.

He placed the strainer and several spoons into a brown grocery bag. He then gave Daniel the small quantities of cocaine which Daniel placed in his refrigerator. Hackett and Amos then left. The next morning Amos called Denise and asked her to meet him at Taylor’s meat market.

Amos took the zippered travel bag from Denise and told her he would meet her later. Amos was under surveillance by an agent of the Drug Enforcement Administration when he took the bag into the market. Two hours later Amos left the market without the bag. There was no evidence that Taylor ever got possession of any of the cocaine brought from Florida or that Taylor ever distributed any of it.

On November 3,1977, Amos gave some baggies containing cocaine to Denise with instructions she was to deliver a bottle containing cocaine to Tommy Tate (an indicted co-conspirator) and one of the baggies each to Harris and “Jerry” when they came for it. Harris picked up his share and drove to Oxon Hill where he was arrested by the police. The police found a small quantity of cocaine on his person. The same day, Daniel was arrested in his apartment and the police found cocaine in his refrigerator.

There was expert testimony by one of the detectives that a kilogram of cocaine in the fall of 1977 would have cost between $35,000 and $42,000 and that cutting the kilogram could produce about 4.5 kilograms for street sale at a total price of $322,000. We have detailed the facts contained in the record in this ⁶⁵⁰ case because the appellants have raised a defense with which the Maryland Courts have never previously dealt; i.e., the distinction to be made between a single conspiracy and multiple conspiracies for purposes of determining whether a variance in proof exists when an indictment charges a single conspiracy and proof at trial discloses multiple conspiracies. Appellants contend that the State obtains an unfair advantage if it is permitted to transform several separate transactions into one conspiracy; Under those circumstances, the State is permitted to introduce the acts and statements made by co-conspirators in. a transaction against individuals involved in an entirely separate transaction by relying upon the co-conspirators’ exception to the hearsay rule. While our Courts have not been required previously to consider this issue, it has been raised in a number of federal jurisdictions.

The multiple conspiracy defense has been most often analyzed in terms of “chain” and “wheel” conspiracies. See Note, Federal Treatment of Multiple Conspiracies, 57 Colum. L. Rev. 387 (1957); Tarlow, Defense of a Federal Conspiracy Prosecution, 4 National Journal of Criminal Defense 225-39 (1978). A “wheel” conspiracy is shown when a number of people (the spokes) are engaged in similar relationships with the same individual (the hub).

The “chain” conspiracy is characterized by different activities carried on with the same subject of a conspiracy in such a manner that each conspirator in a chain-like manner performs a separate function which serves in the accomplishment of the overall conspiracy. United States v. Perez, 489 F.2d 511 (5th Cir. 1973). If we accepted appellants’ contention that this was in fact a “wheel” conspiracy, the prosecution, pursuant to federal case dictates, would be required to prove that the existence of the other spokes was known to a particular defendant, and that that defendant did something in furtherance of a single, illegal enterprise in order that he be found to have conspired with the other spokes of the wheel. United States v. Levine, 546 F.2d 658 (5th Cir. 1977); United States v. Manarite, 448 F.2d 583 (2nd Cir.), cert. denied, 404 U.S. 947 , 92 S. Ct. 303 (1971).

The classic case is Kotteakos v. United States, 328 U.S. 750 , ⁶⁵¹ 66 S. Ct. 1239 (1946), in which thirty-two defendants were charged with conspiring to obtain government loans by fraud. The proof at trial showed one central figure (the hub) who acted as broker for all the other loans and at least eight separate loan transactions. No other connection was shown among those procuring the loans (the spokes). The Court analogized this to a wheel without a rim to enclose the spokes and reversed the convictions because of the prejudicial variance in proof.

A close examination of Kotteakos , however, discloses that it is factually inapposite to the case sub judice. The evidence produced by the Government in Kotteakos proved eight or more different conspiraciés by separate groups of defendants who had no connection with each other except that all utilized one broker to handle fraudulent applications for loans. The trial court instructed the jury that only one conspiracy was charged, and that the acts and declarations of one conspirator bound all. In addition, the Government conceded that the appellants were convicted of a single general conspiracy by evidence which the Government admitted proved not one conspiracy but eight or more different ones of the same sort executed through a common key figure. 328 U.S. at 752 .

Under these circumstances, the Supreme Court reversed on the grounds that the appellants suffered substantial prejudice from being convicted of a single general conspiracy. In the case at bar, it is clear to us that the evidence showed that the conspiracy had only one objective — to acquire cocaine for the purpose of distribution. It is clear that appellant Taylor acted with Amos Tinker to accomplish this end by providing the money for the purchase, and that Bolden, the other appellant, acted as the agent of Tinker to accomplish the same end by serving as a messenger for Tinker and by attempting to discover the existence of possible telephone surveillance. As we have carefully detailed in the recitation of the facts in this case, each of the other persons was involved in furthering the same general conspiracy.

There was no proof of multiple conspiracies, and therefore no variance. The evidence produced by the State was more than ⁶⁵² sufficient to permit the jury to find beyond a reasonable doubt that Amos Tinker, Bolden and Taylor had reached a meeting of the minds, a unity of design and purpose. As the Court of Appeals noted in Greenwald v. State, 221 Md. 245, 250 , 157 A.2d 119 (1960): “If it be proved that the Defendants sought the same objective and that one performed one function and the other another in the attainment of that objective, the inference that they were engaged in a conspiracy will be justified.” The Supreme Court in United States v. Perez, supra, at 62, said: [tjhere is no requirement that every defendant must participate in every transaction in order to find a single conspiracy.... With respect to the objectives of the conspiracy, it can be said that the prohibited activity must be committed in furtherance of a common objective.... [N]ot only must the objectives of all charged under one conspiracy be common, but there must be one objective, or set of objectives, or an overall objective to be achieved by multiple actions.

In Blumental v. United States, 332 U.S. 539, 557 , 68 S. Ct. 248 (1947), the Court said: “[T]he law rightly gives room for allowing the conviction of those discovered upon showing sufficiently the essential nature of the plan and their connection with it, without requiring evidence of knowledge of all its details or of the participation of others.” Appellant Taylor in his fourth issue contends that the trial court erred in refusing to grant his specific instruction to the jury that the distribution of cocaine from Taylor to Tinker on two occasions was not sufficient evidence, by itself, to prove a conspiracy between appellant and Tinker. We find no merit in this contention. The trial court properly covered the requested instruction in the general instructions it gave to the jury on the law of conspiracy. The instruction as given was clear, specific and concise, and more than adequately advised the jury as to the proof required to find the appellants guilty beyond a reasonable doubt.

It correctly advised the jury that it was required to weigh all the evidence, that it must consider ⁶⁵³ the acts of all the co-conspirators, and that an association of two parties is not itself sufficient to prove conspiracy. See Bartholomey v. State, 260 Md. 504 , 273 A.2d 164 (1971), vac. in part, 408 U.S. 938 , 92 S. Ct. 2870 (1972). In his related fifth issue, appellant Taylor argues that the trial court erred in