560 F.2d 45 (2d Cir. 1977)
In April 1972, Special Agent Garfield Hammonds of the Bureau of Narcotics and Dangerous Drugs observed appellant Paul Oates at the Detroit Metropolitan Airport.1 Oates was conversing with Isaac Daniels before both boarded American Airlines Flight 440 to New York.2 Oates, whom Hammonds knew from prior intelligence as a reputed major narcotics dealer in Detroit, sat in first class while Daniels sat in coach.3 During the flight, Hammonds observed Daniels displaying physical signs of addiction including swollen hands, needle track marks on the back of his right hand, and a constantly running nose.4
After the flight arrived at LaGuardia Airport, Oates and Daniels rejoined and met Willie McMillan, a person Hammonds knew to be associated with the drug culture.5 McMillan entered a telephone booth, dialed, and handed the receiver to Oates.6 Hammonds ended the surveillance because he feared McMillan might recognize him and because he lacked a government vehicle to continue tailing the group.7 The next morning, April 27, 1972, Hammonds and four other agents returned to the terminal.8 They observed Oates and Daniels sitting about fifteen feet apart in the departure lounge despite nearby empty seats.9 Visible bulges appeared in Daniels' right coat pocket and inner right thigh.10
Two Customs Security Officers approached Oates and Daniels on the boarding line.11 The officers asked them to accompany the officers to a nearby American Airlines office.12 After both men denied being armed and consented to a frisk, Officer DeAlfi discovered an overstuffed wallet in Daniels' coat pocket.13 He then found a brown manila envelope containing two plastic packages of white powdery substance taped to Daniels' right thigh.14 BNDD agents immediately arrested both Oates and Daniels for federal narcotics violations.15 The white powdery substance was retained by Customs officers.16
Oates moved before trial to suppress the seized substance.17 After the district court denied the motion, a six-day jury trial was held in the United States District Court for the Eastern District of New York.18 At trial the government introduced the official typewritten report and handwritten worksheet of Customs chemist Milton Weinberg, who had become unavailable due to illness, through another Customs chemist.19 These documents stated that the substance was heroin.20 Oates was convicted of possession of heroin with intent to distribute and of conspiracy to commit that offense.21 He appealed the judgment of conviction to the United States Court of Appeals for the Second Circuit.22
Whether appellant had automatic standing to challenge the search and seizure of evidence from his co-defendant Daniels?23
Under the doctrine of automatic standing from Jones v. United States, a defendant charged with a possessory crime has standing to contest a search and seizure when possession at the time of the search is an essential element of the crime charged.24 Aiding and abetting is not a separate offense but merely describes participation in the substantive crime.25 Therefore, the crime charged remains the underlying possessory offense.26
Yes. The ESTABLISHED FACTS state that Oates was charged with aiding and abetting possession of heroin with intent to distribute and conspiracy to commit that offense.27 Because aiding and abetting under 18 U.S.C. § 2 is not a separate crime, the substantive offense of possession with intent to distribute is the crime charged, and possession is an essential element of that offense.28 The white powdery substance was seized from Daniels during the encounter at LaGuardia Airport on April 27, 1972, directly implicating the possessory count for which Oates was tried and convicted.29
Appellant had automatic standing to challenge the search and seizure of evidence from Daniels.30
Whether the initial encounter between Customs officers and Oates and Daniels constituted a permissible Terry stop supported by specific and articulable facts?31
A Terry stop is permissible when an officer has specific and articulable facts that, together with rational inferences, reasonably warrant a temporary detention for investigative purposes.32 The reasonableness of the stop is determined by balancing the gravity of the suspected offense and the need for immediate action against the degree of intrusion on individual liberty.33
Yes. The ESTABLISHED FACTS show that Agent Hammonds observed Oates, a reputed major narcotics dealer, traveling with Daniels who displayed clear signs of addiction, meeting a person associated with the drug culture, and then sitting apart yet within sight of each other in the departure lounge with visible bulges in Daniels' clothing that had not been present the previous evening.34 These facts, viewed through the eyes of an experienced narcotics agent, supplied the specific and articulable suspicion required to justify the officers' approach on the boarding line and request that Oates and Daniels accompany them to the nearby office for questioning.35
The initial encounter constituted a permissible Terry stop supported by specific and articulable facts.36
Whether the pat-down frisk of Daniels was justified by a reasonable belief that he might be armed and dangerous?37
During a lawful Terry stop, an officer may conduct a limited pat-down frisk for weapons only when the officer has reason to believe the suspect may be armed and dangerous.38 The presence of unexplained bulges in a suspect's clothing, combined with the nature of the suspected criminal activity, can supply the requisite reasonable belief.39
Yes. The ESTABLISHED FACTS establish that Customs officers observed a prominent bulge in Daniels' right coat pocket and another bulge on the inside of his right thigh, that both men appeared nervous and jittery, and that Agent Hammonds had informed the officers of his belief that the suspects were armed and carrying narcotics.40 These observations, together with the serious nature of suspected large-scale narcotics trafficking, justified the protective pat-down that led to the discovery of the wallet and the manila envelope containing the white powdery substance.41
The pat-down frisk of Daniels was justified by a reasonable belief that he might be armed and dangerous.42
Whether the Customs chemist's official report and worksheet were admissible under the Federal Rules of Evidence?43
Federal Rule of Evidence 803(8) excludes from the public records exception in criminal cases factual findings resulting from an investigation made pursuant to authority granted by law when offered against the accused.44 The legislative history demonstrates that Congress intended to bar law-enforcement and evaluative reports from admission against criminal defendants under any hearsay exception, including Rule 803(6).45
No. The ESTABLISHED FACTS show that the government introduced the official typewritten report and handwritten worksheet of Customs chemist Milton Weinberg through another chemist after Weinberg became unavailable.46 These documents were the only evidence that the seized white powdery substance was heroin.47 Because the reports constitute evaluative findings by law-enforcement personnel in a criminal case, they fall squarely within the exclusion of Rule 803(8)(B) and (C) and cannot be admitted through the back door of the business records exception.48
The Customs chemist's official report and worksheet were not admissible under the Federal Rules of Evidence.49
Whether the district court's jury charge on the presumption of innocence contained reversible error?50
Appellant's assignment of error regarding the trial court's charge on the presumption of innocence was without merit.51
No. The ESTABLISHED FACTS indicate that after a six-day jury trial Oates was convicted on both counts.52 The Court of Appeals expressly concluded that the assignment of error did not warrant reversal of the convictions.
The district court's jury charge on the presumption of innocence did not contain reversible error.53