United States v. Sandini

888 F.2d 300, 1989 WL 127084
Court of Appeals for the Third Circuit·Decided October 30, 1989·No. No. 89-3057·Published·Cited by 83 cases

Opinion

OPINION OF THE COURT

GREENBERG, Circuit Judge.

BACKGROUND

David Thomson appeals to this court from the judgment of conviction and sentence entered on December 28, 1988, in the district court following his conviction for two narcotics offenses. This proceeding was originated when a multi-count indictment was returned on June 28, 1985, against Thomson, George Kost and 19 other defendants in the Western District of Pennsylvania. Thomson was charged in two counts of the indictment. In count one he, along with 14 of the other defendants, including Kost, was charged with participation in a conspiracy to possess with intent to distribute and to distribute cocaine from August 1981 until May 1984 in violation of 21 U.S.C. § 846. In count eleven he was charged with aiding and abetting the possession of cocaine with intent to distribute on May 3,1982, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Kost was also charged in five other counts of the multi-count indictment and, in addition, was charged in a separate indictment, with conducting a continuing criminal enterprise from the summer of 1981 until May 1985, contrary to 21 U.S.C. § 848(a).1

Thomson and Kost were not immediately apprehended following the indictment. However, certain of the other defendants were tried and convicted in 1985 and others entered pleas of guilty. Thomson was arrested in Manheim Township, Pennsylvania, on an unrelated state burglary charge on April 25, 1987, and was held in state custody until early April 1988. On April 7, 1988, the district court issued a writ of habeas corpus and prosequendum to the warden of the Lancaster County jail where Thomson was being held and Thomson then passed to federal custody. Kost also became available for trial at about the same time. Thomson and Kost pleaded not guilty to all charges.

Thomson served and filed numerous pretrial motions, including a motion for severance which, after oral argument, was denied on May 18, 1988. Subsequently, Thomson and Kost were jointly tried before a jury and, on July 6, 1988, Thomson was found guilty on both counts against him. Kost was convicted on the separate indictment of conducting a continuing criminal enterprise and of four of the six counts in which he was charged in the multi-count indictment, the conspiracy count and three counts of possession of cocaine with intent to distribute, including count eleven in which Thomson was also charged.

On December 28, 1988, Thomson was sentenced to a term of 15 years on the conspiracy count, and to a consecutive term of five years on count eleven for aiding and abetting the possession of cocaine with intent to distribute. In addition, a term of 15 years’ special parole was imposed on him. Thomson appeals, contending that he did not get a fair trial because the court denied his pretrial motion to sever his trial from Kost’s and Kost’s attorney in his closing argument admitted that Kost was guilty of conspiracy and implicated Thomson in the conspiracy. In addition, Thomson contends that the evidence was insufficient to prove him guilty beyond a reasonable doubt on count eleven. Finally, Thomson urges that he was denied effective assistance of counsel because his trial counsel refused, notwithstanding Thomson’s request that he do [303] so, to file a motion to dismiss the indictment against him on the ground that he was denied a speedy trial.

THE FACTS

The facts of this case were established at the trial by numerous witnesses, all called by the government, some of whom had themselves been charged in the indictment. The evidence clearly established that there was a large scale conspiracy, including Thomson and Kost, to possess and distribute cocaine commencing around October 1981 and lasting until May 1984, a few months after a disgruntled participant, James McAuliffe, began acting as an informant for the Federal Bureau of Investigation. Thomson’s involvement in the conspiracy centered on his role as Kost’s bodyguard and may be traced to the late 1970’s, when he was an occasional cocaine customer of Ernest Rockwell, a wholesale cocaine dealer in the Pittsburgh area, who was also a defendant in the multi-count indictment and who testified for the government. At that time, Rockwell was purchasing cocaine in kilo lots from Richard Dunlap, who maintained drug connections with dealers in Florida. Kost was one of Rockwell’s regular customers, purchasing cocaine in increasingly larger amounts.

In 1980 Rockwell grew dissatisfied with Dunlap and moved to Florida to establish new sources for cocaine. There he formed an association with Lauren Lee, from whom he purchased individual kilos of cocaine for distribution in the Pittsburgh area. In the course of his dealings with Lee, Rockwell became acquainted with Hil-mer Sandini, who later became a conspirator in the drug ring and was named in the multi-count indictment.

Rockwell’s relationship with Lee terminated in the summer of 1981. Around that time, Rockwell and Sandini formed the partnership which became the hub of the conspiracy. Rockwell testified that he and Sandini agreed that Sandini would obtain large quantities of cocaine in Florida for transportation by courier to Rockwell in Pittsburgh. Rockwell then would sell the cocaine to dealers in the Pittsburgh area with profits to be split equally between Rockwell and Sandini. After setting up this operation with Sandini, the volume of cocaine Rockwell distributed in Pittsburgh increased dramatically. Kost became Rockwell’s largest purchaser, as described by Rockwell, his “number one man,” and as such was entitled to a volume discount.

In 1981 or 1982, Thomson questioned Rockwell about Kost because Thomson was working for persons who claimed that Kost owed them approximately $30,000. Thomson intended to collect this debt by kidnapping Kost or his daughter. Rockwell, however, was anxious to have a confrontation avoided so he introduced Thomson to Kost, who convinced Thomson that these alleged creditors were merely competitors in the cocaine business endeavoring to usurp his clientele. At the conclusion of this meeting, Thomson agreed to work for Kost as a personal bodyguard. Thereafter, Thomson obtained cocaine from both Rockwell and Kost in quantities ranging from 4 to 10 ounces per month.

Thomson’s former girlfriend, Sharon Spuganich, testified that Thomson normally carried guns when he worked for Kost and that she observed a sawed-off shotgun and two handguns in Thomson’s apartment. She and other witnesses testified that Thomson collected money from cocaine transactions for Kost. For example, Ronald Urban, one of Kost’s distributors and a defendant in the multi-count indictment, testified that Thomson handcuffed James McAuliffe to the steering wheel of a car after he sold a quantity of Kost’s cocaine without Kost’s knowledge, an unusual but effective collection procedure which caused McAuliffe to pay what he owed to Kost. Overall, the evidence of Thomson’s participation in the conspiracy was overwhelming and, indeed, he does not challenge the sufficiency of the evidence on that count.

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United States v. Sandini, 888 F.2d 300, 1989 WL 127084 (3d Cir. 1989).

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