Petition — Delli Paoli v. United States

Supreme Court brief1979

Ask Donna

What actually matters in this document.

Text

7 Supreme Cou, US

FILED

JUL 25 1979}

| MICHAEL RODAK,JR., CLERK | |

ee ae ee meee ee eens

In THE

Supreme Court of the United States |

OCTOBER TERM, 1979

No. ....9.9 = 118

ORLANDO DELLI PAOLI,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

LAURENCE JEFFREY WEINGARD

WEINGARD AND BROUDNY

401 Broadway

New York, N.Y. 10013

(212) 226-6820

Counsel for Petitioner

a ——————}

DICK BAILEY SERVICE, INC., P.O. Box X, S.1., N. 7" Y. 10302

Telephone: (212) 447-5358

TABLE OF CONTENTS

Page

Opinion Below...........essseeeeeceeeeeereeeeercecees 1

Jurisdiction ..........6+e+e sees ne eee ee 2

Questions Presented. .........+.+seeeeee seer rere ecneees 2

Statutory Provisions Involved........--+s++eeeseereeees 3

Preliminary Statement............0s+ eee eee reer sence 3

Statement of the Case.......... cece eect eee e eee eeeeees 4

Government’s Case. .......-.ecceeee cree ee cree esreees 4

Testimony on Behalf of Defendants.........--+++++++++ 11

Reasons for Granting the Writ..........--eeeeeer eee eees 19

POINT ONE—

The Court Committed Reversible Error by Permitting

the Government to Demonstrate, Both Through Its

Opening Statement as Well as the Subsequent Testi-

mony of Detective Caracappa, that Co-Defendant

Warme Had Made a Statement to Caracappa

that Petitioner Delli Paoli Had Just Completed

a $50,000 Drug Deal in Miami, Florida, a Highly

Prejudicial Hearsay Statement Which Was Inad-

missible Both Because it Constituted Impermissible

“Other Crimes’? Evidence and, Moreover, Since it

Was a Co-Conspirator’s Hearsay Declaration Which

Failed to Meet the Relevant Pre-Conditions for

Admissibility. .........::0 cece eee eee e ee eeeeees 19

(a) The hearsay declaration of the purported

commission of the ‘‘other crime’’ was improperly

admitted into evidence since it was not relevant

to any issue in dispute at the trial and thus

merely served the impermissible purpose of pre-

judicing Delli Paoli by permitting the jury to

infer that he was a bad man inclined to deal

in narcotics, a circumstance which was exacerbated

by the fact that the court itself held the view

. that the declaration was untrue.................

(b) The admission into evidence pursuant to Rule

801(d)(2)(E) of the declaration regarding the

$50,000 drug deal in Florida, was also violative

of the rule prohibiting hearsay testimony. In that

connection, the declaration failed to comply with

the necessary pre-conditions of admissibility, since

the statement was deemed unreliable by the court

and, moreover, the other non-hearsay evidence

adduced at trial failed to show that the declaration

was either made during the course of the conspi-

racy or that the co-conspirator-declarant had

personal knowledge of the subject of his statement.

POINT TWO—

Reversal Of the Judgment of Conviction is Required

Because of the Misconduct on the Part of the Prose-

cutor in Intentionally Injecting Into the Trial the

Spectre of Organized Crime Without any Legitimate

3 RAPS SIT eee ny es ee

POINT THREE—

The District Court Committed Reversible Error by

Refusing to Invoke Appropriate Sanctions such as

the Striking of Direct Testimony of Various Govern-

ment Witnesses Who Conceded that they Had

Intentionally Destroyed Various Reports of their

Investigations which Material, in all Relevant Instan-

ces, Had a Significant Relationship to the Subject

Matter of Direct Examination...................:. 41

POINT FOUR—

While the Indictment Charged One Narcotics Conspi-

racy, the Proof Established Multiple Narcotics’

Conspiracies. This Variance Between Indictment and

Proof Fatally Prejudiced Substantial Rights of

ee ee 48

POINT FIVE—

The District Court Erroneously Failed to Sua Sponte

Conduct an Evidentiary Hearing in Order to Deter-

mine Whether a Rift Which Had Developed Between

Petitioner Delli Paoli and his Attorney Precluded

Trial Counsel from Providing Effective Assistance

I lS eds oa dees daw senehe on 54

POINT SIX—

The Court Below Was in Error when it Declined

to Grant Petitioner’s Post-Verdict Discovery appli-

cation, since the Items Sought had Been Received

by the Court in Camera, During Defendant’s

Trial and the Information Contained in the Materials

Was Relevant to a Legitimate Object of the Peti-

Cee: RHI. oes Adv Sais ed i nds es 60

Ci iss eo gs Ae wh RVs 00 adS EOE Eten

Appendix A (Opinion and Judgment of Court of

pO Ot Sey eee

App:-ndix B—Judgment and Probation Commitment Order .. .

Appendix C(Fed. R. Crim. P. 8(b)) ....... cece cece eeeeenes

17a

Appendix D (Rule 104(a) & (b)).. 0.2... 2. eee ee eee

Appendix E (Rule 403, Federal Rules of Evidence).....

Appendix F (U.S. Const., Fifth Amendment).........

Appendix G(U.S. Const., Sixth Amendment).........

Appendix H (Title 21 U.S.C. 812).............. eee

Appendix I (Title 21 U.S.C. 841(a)(1) & (b)(1)(A))....

CASES CITED

Berger v. U.S., TG UB. Toi x andes tieeetecis

Chambers v. Mississippi, 401 U.S. 384 (1973)

Cross v. U.S., 392 F. 2d 360, 366-367 (8th Cir. 1968)...

see eee eee eeeeeeee

Davis v. Alaska, 415 U.S. 308 (1974)

Dennis v. United States, 384 U.S. 855, 874 (1966)

Goldberg v. U.S., 425 U.S. 94, 109-111 (1976).........

In re Grand Jury Subpoena Directed Taylor to Appear

and Testify, 567 U.S. 1183, 1188 (2d Cir. 1977)

Kotteakos v. U.S., 328 U.S. 750 (1946)

Lewis v. U.S., 340 F.2d 678, 682 (8th Cir. 1965)

eeeeeeeeeeeeeee

S@ae eves

Smith v. Illinois, 390 U.S. 129, 132 (1968)

U.S. v. Agueci, 310 F.2d 817 (2d Cir. 1962)

21a

U.S. v. Benedetto, 571 F.2d 1246, 1249 (2d Cir. 1978). .

U.S. v. Berger, 73 F.2d 278, 280 (2d Cir. 1934) rev’d on

other grounds, 295 U.S. 78 (1935). .......s.sesseeses

U.S. v. Bertolotti, 529 F.2d 149 (2d Cir. 1975).........

U.S. v. Bufalino, 576 F.2d 446 (2d Cir. 1978).........

U.S. v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969),

cert. denied, 397 U.S. 1028 (1970). ..............005.

U.S. v. Jackson, 536 F.2d 628, 630 (Sth Cir. 1976).....

U.S. v. Leitner, 312 F.2d 107 (2d Cir. 1963)...........

U.S. v. Mallah, 503 F.2d 971 (2d Cir. 1974)...........

U.S. v. Moten, 582 F.2d 654, 660 (2d Cir. 1978).......

U.S. v. Mase, 556 F.2d 671, 676 (2d Cir. 1977)........

U.S. v. Miley, 513 F.2d 1191, 1206-1207 (2d Cir. 1975).

U.S. v. Miranda, 526 F.2d 1319, 1324. n. 4 (2d Cir.

U.S. v. Puco, 476 F.2d 1099, 1107 n. 2 (2d Cir. 1973)

cert. denied, 414 U.S. 844 (1973)... 0... . ccc cee ee eee

U.S. v. Robinson, 544 F.2d 611, 620-621 (2d Cir. 1976)

Gant. Goma, G55 UB. Fe CIID. oc cc ccnccccccccecs

U.S. v. Rosner, 516 F.2d 269, 265 (2d Cir. 1975) cert.

es Ee EG bao cade wendccebvncavewesse

U.S. v. Taylor, 563 F.2d 1345, 1365-1366 (2d Cir. 1977),

cert. denied 432 U.S. 905 (1978)... ccc ccccccccccss

U.S. v. Williams, 577 F.2d 188, 191 (2d Cir. 1978).....

OTHER AUTHORITIES CITED

i ea a as Ra a Sew

Rule 104(a), 104(b) Federal Rules of Evidence.........

Rule 801(d)(2)(E), Fed. Rules of Evidence............

Section 403, Federal Rules of Dvidence...............

Moore’s Federal Practice, Par. 33.05 (3)........ es

Weinstein’s Evidence, paragraph 104[05] page 104-43

PNG wis sera ess vOaSes os soe T eben vee Rae men .

Weinstein’s Evidence, paragraph 404[09] at 404-47

SENS ch 6 CAG n aacu sos DNs Eel ok cea seeaees enn.

Weinstein’s Evidence, paragraph 801(d)(2)(E)[01] page

PRB ee ern my I ee

35.

Se i oe Oe

<b heehee

STATUTES CITED

United States Constitution, Fifth Amendment........

United States Constitution, Sixth Amendment........

Title 21, U.S.C., Section 812, 841(a)(1); 841(b)(1)(A). ..

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No. ;

ORLANDO DELLI PAOLI

Petitioner,

UNITED STATES OF AMERICA

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The petitioner, Orlando Delli Paoli, respectfully

prays that a writ of certiorari issue to review the judg-

ment and opinion of the United States Court of Appeals

for the Second Circuit entered in this proceeding on

June 26, 1979.

OPINION BELOW

The opinion of the Court of Appeals, not yet

reported, appears in the Appendix hereto. No opinion

was rendered by the District Court for the Southern

District of New York.

JURISDICTION

The judgment of the Court of Appeals for the Se-

cond Circuit was entered on June 26, 1979, and this peti-

tion for certiorari was filed within 30 days of that date.

This Court’s jurisdiction is invoked under 28 U.S.C.

§1254(1).

QUESTIONS PRESENTED

1. Did the court commit reversible error by permitting the

government to demonstrate that co-defendant Warme had

made a hearsay statement that Delli Paoli had completed a

$50,000 drug deal in Miami, Florida, in light of the fact that the

statement both constituted impermissible ‘‘other crimes’’

evidence and, moreover, was a co-conspirator’s hearsay

declaration which failed to meet the relevant preeonditions for

admissibility? .

2. Did the prosecutor commit prejudicial misconduct by in-

tentionally injecting into the trial the spectre of organized crime,

without any legitimate purpose?

3. Did the District Court commit reversible error by refus-

ing to invoke appropriate sanctions in light of the fact that

various government witnesses conceded they had deliberately

destroyed reports of their investigation?

4. Was there a fatal variance between indictment and proof

which prejudiced appellant in light of the fact that the indict-

ment charged one narcotics’ conspiracy and the proof establish-

ed multiple narcotics’ conspiracies?

5. Is a hearing required on the question of whether rift

between a petitioner and trial counsel denied petitioner the ef-

fective assistance of counsel?

Oa nee tenatiaall

6. Did the Trial Court Improperly Deny Petitioner’s Post-

Verdict Motion for the Discovery of Materials Received by the

Trial Court Jn Camera?

STATUTORY PROVISIONS INVOLVED

Fed. R. Crim. P. 8 (b)

Rule 104(a) & (b) Federal Rules of Evidence

Rule 403, Federal Rules of Evidence

U.S. Const., Fifth Amendment

U.S. Const., Sixth Amendment

Title 21 U.S.C., 812

Title 21 U.S.C. 841(a)(1) & (b)(1)(A)

PRELIMINARY STATEMENT

Petitioner, Orlando Delli Paoli, appealed from a judgment

of the United States District Court, for the Southern District of

New York, rendered October 12, 1978, convicting him, after a

trial before Judge Gerard L. Goettel and a jury, of conspiracy

to violate Sections 812, 841(a)(1) and 841(b)(1)(A) of Title 21,

United States Code and sentencing him to a prison term of two

years. Moreover, pursuant to Sec. 841 of Title 21, United States

Code, he was placed on Special Parole for a term of ten years,

to commence upon expiration of confinement.

On June 26, 1979, the Court of Appeals for the Second Cir-

cuit unanimously affirmed the judgment of conviction.

STATEMENT OF THE CASE

GOVERNMENT'S CASE

In the afternoon of January 24, 1978, Detective Stephen

Caracappa was introduced to defendant Richard Warme by an

individual named Lorraine who referred to Caracappa by the

name he had assumed in his undercover capacity, to wit,

Frankie (58a-59a*). Warme and Caracappa had some dis-

cussions about the sale by Warme to Caracappa of some cocaine

and Warme indicated that he would supply Caracappa with a

sample of cocaine the following day (59a-60a). On the following

day, January 25, 1978, Warme delivered a small sample of co-

caine and asked Caracappa whether he needed any mix, but

Caracappa told Warme that he had enough mix and what he

needed the most was heroin, in response to which Warme told

Caracappa that he would bring him a sample of heroin the next

day (61a-63a).

However, Caracappa was completely unsuccessful in ob-

taining any further narcotics from Warme for a period of at

least one month, during which period of time Caracappa saw fit

to speak with Warme on many occasions and to discuss the sub-

ject of narcotics with him on at least 8 separate occasions during

that period, indicating to Warme throughout this period that he

was very anxious to obtain narcotics (282a-288a). Moreover,

early in the investigation, sometime in February of 1978,

Warme informed Caracappa that he was not familiar with the

business of narcotics and that he did not know the first thing

about heroin or cocaine (301a-303a).

On February 16, 1978, Caracappa agreed to act as a middle

man in order to dispose of some valuable vases belonging to

Warme, having led Warme to believe that he could be of some

assistance and, in connection with that representation, Carcap-

pa accepted the vases on a contingent basis to see what kind of a

*References are to pages of Co-Appeliants’ Joint Appendix, unless otherwise

indicated. Since Warme and Delli Paoli are represented by the same attorneys

on this application, the factual resume is identical for each. It has been set

forth in full in each petition for the convenience of the reader.

price he could obtain for them (313a-314a). And, when Warme

indicated to Caracappa that he was in need of money, the de-

tective lent Warme the sum of $800 in connection with the ac-

ceptance of the consignment of vases (315a-316a).

Subsequently, on February 21, 1978 Caracappa and

Richard Warme met on 57th Street and 6th Avenue in New

York City and had a conversation in a bar in that vicinity, dur-

ing the course of which Warme informed Caracappa that he was

having difficulty obtaining samples of heroin and cocaine and

they arranged to meet at Warme’s residence that evening in

order to resume discussions about thai subject (64a). Later that

evening, Caracappa and Warme met at Warme’s apartment and

went from that location to a bar in the Bronx where an in-

dividual named Vincent Rungo, an unindicted co-conspirator in

this case, informed Caracappa that another individual who was

speaking with Warme at the time was ‘‘Bobby, the connection”’

(65a-66a). »

The individual called Bobby, whose identity was later

learned by Caracappa to be defendant Robert Bolella, indicated

that he expected some heroin to become available and that

Caracappa would be given first opportunity to purchase it when

it actually arrived (66a-68a). Caracappa also accepted an offer

by Bolella to purchase some cocaine at the price of $1200 per

ounce, but when Caracappa met with Bolella at Warme’s apart-

ment the following day, he was informed by Bolella that the co-

caine they had received was bad and it would take a few more

days before they received any further material (68a-70a).

On February 25, 1978 Caracappa met with Warme, Rungo

and Bolella at Warme’s residence, from which location

Caracappa and Bolella went to a parking lot in Scarsdale where

Bolella and Caracappa discussed the sale of some cocaine and

Bolella handed Caracappa a sample (71a-73a). At that point

Caracappa and Bolella entered into an agreement for the pur-

chase of $1200 worth of cocaine and Bolella left temporarily

and shortly thereafter returned with a white plastic bag contain-

ing cocaine which was given to Caracappa (72a-74a). When

Bolella and Caracappa thereafter returned to Warme’s apart-

ment, Caracappa gave Bolella the balance of the monies due for

the cocaine out of which a $100 bill was given to Warme

(74a-75a).

On March 2, 1978, at about 3:00 in the afternoon, defen-

dant Wayne Petrucha and Warme met with Caracappa at a fur-

niture store in the Bronx owned by Richard Warme’s mother-in-

law (84a-85a, 89a-90a), where a sample of cocaine was given to

Caracappa by Petrucha and a price of $1400 per ounce was ar-

rived at for the sale of cocaine (86a). Caracappa, Warme, and

Petrucha met later that evening at the same location, at which

time Petrucha gave Caracappa a plastic bag containing 5 ounces

of cocaine, in connection with which a total price of $7,000 was

agreed upon, and $5,000 of that purchase price was paid to

Petrucha by Caracappa (94a).

On March 9, 1978 Caracappa, accompanied by his partner,

Detective Petraglia, met in the late afternoon with Richard

Warme, Vincent Rungo, as well as Wayne Petrucha and co-

defendant Victor Isaza (108a-109a). Petraglia, Caracappa and

Warme went to the Cross Town Diner and had a conversation,

during the course of which Warme told the detective that he had

been in touch with some people who were going to supply some

heroin and that there was plenty of heroin available, but that

these people would not deal directly with Caracappa or

Petraglia so that it was necessary'for a marriage to be made bet-

ween Richard Warme and the person who was going to supply

the heroin and that Warme would himself deal the heroin at that

point to Caracappa (11la). Warme indicated that the individual

who would make this marriage was ‘‘an old man and that he

was a made man’”’ and the parties discussed various prices for

heroin, agreeing upon a price of $11,000 for the purchase of 7

ounces of white heroin (11 1la-112a).

Later on March 9, 1978 Caracappa and Warme went to his

residence where Wayne Petrucha came up to his apartment with

another individual, defendant Victor Isaza. At that point in

time Isaza and Petrucha sold 5 ounces of cocaine to Caracappa

for the price of $6,000 (114a-115a). After Petrucha and Isaza

had departed, Warme was given $400 by Caracappa purportedly

representing his cut on the deal (116a-117a).

On March 14, 1978 Caracappa and Petraglia met with

Warme in the Cross Town Diner where Warme indicated that

the ‘‘marriage’’ had been made between Warme and the heroin

connection and that the parties should be expecting some heroin

within a few days (122a-123a). Warme also indicated ‘‘that the

old man was hooked up with fat Tony Salerno and the old Plea-

sant Avenue people’’ (124a). At the Cross Town Diner, Warme

engaged in negotiations with Petraglia and Caracappa for the

purchase of 7 ounces of heroin for $11,000 (136a). Two days

later, on March 16, 1978, Caracappa and Petraglia met with

Warme at the Jomar Furniture Store in the Bronx where Warme

informed the two detectives that the deal should be completed

later that evening and that one of the ‘‘bosses was overseeing

the heroin deal and that he was very, very careful because he

had just completed a $50,000 heroin deal in Miami, Florida’’

(137a-144a).

Thereafter, at a time when Caracappa, Petraglia, Vincent

Rungo as well as co-defendant Richard Warme and his wife,

Diane Warme, were in the Jomar Furniture Store, petitioner

Orlando Delli Paoli was observed to enter the store and, with

the assistance of Vincent Rungo, place some chairs in his car

(151a-153a).

On March 19, 1978, Warme met with Caracappa and

Petraglia at the Jomar Furniture Store where Warme informed

the detectives that the deal would be completed that evening,

and when Robert Bolella eventually arrived at about 1:30 in the

afternoon, the detectives gave Warme $11,000, and Warme left

the premises (154a-155a). However, Warme returned an hour

later to indicate that the heroin had not yet arrived. Petraglia,

Caracappa and Bolella went to another location in the Bronx

where Bolella eventually received a phone call which he in-

dicated was from Richard Warme and he informed Caracappa

that the detectives would get the package they were expecting

the following evening (157a-158a). While the detectives were in

the Bronx with Bolella they saw fit to employ hostile gestures,

including the brandishing of Caracappa’s weapon, in order to

convey to Bolella they would employ whatever steps they deem-

ed necessary in order to secure the return of the $11,000 or the

heroin they had been promised (460a. 1-460a.9).

On March 20, 1978 Warme informed Caracappa that there

had been a delay in the delivery of the package and returned

$9,000 to Caracappa, indicating that he was required to leave

$2,000 with the people involved as a binder, and also informed

Caracappa that the heroin was no longer going to be white

heroin, but that on this deal it would be brown heroin

(163a-164a).

On March 23, 1978 Caracappa met with Richard Warme

and Warme apologized for the $2,000 which was still outstan-

ding, but told Caracappa that he should not worry because the

heroin was definitely going to come in over the weekend, that it

was pure heroin, and at that point Warme and Caracappa

negotiated for the purchase of one pound of pure heroin for the

price of $7,000 (182a-183a). However, in light of Caracappa’s

belief that he could not put together that kind of money, the

parties also discussed other means by which to make a smaller

purchase (183a). After negotiating this deal for heroin, Warme

told Caracappa that ‘“‘he would speak to his man’’ (183a).

Warme departed and was observed by a surveillance agent to go

from the location where he had met with Caracappa over to the

Andrea Motel at which latter location he was seen in the com-

pany of petitioner Orlando Delli Paoli (422a-424a).

On March 27, 1978, Warme informed Caracappa that ‘‘the

chairs were in’’ and met with Caracappa at the furniture store in

the Bronx where he was told by Caracappa that before any more

money would be given to Warme that Warme would be required

to inform Caracappa who the parties were doing business with

(184a-186a). Warme said that the person they were doing

business with was ‘‘Bobby London and that he owned the An-

drea Motel on the New England Thzuway”’ (187a). At about

3:00 in the afternoon Petraglia arrived and indicated to

Caracappa and Warme that he had $20,000 with him, at which

point Warme was given the $20,000 and went over to the An-

drea Motel while Caracappa and Petraglia waited at another

nearby motel, called the Town & Country (188a-190a).

About an hour later Warme returned to indicate to the

detectives that everything was going fine and that they should be

receiving the package later on (189a-190a), but a short time

thereafter another party got on the phone and indicated to

Caracappa that he was Bobby, Richie’s friend, and that

Caracappa and Petraglia should take a room in the Town &

Country Motel and wait at that location (190a-191a).

Thereafter, at about 10:30 p.m. Caracappa was informed by

Diane Warme that there would be a further delay and indicated

that a man across the street wanted to talk to them, so the detec-

tives went across the thruway to the Andrea Motel where they

met with petitioner Delli Paoli who introduced himself to

Caracappa as Bobby, Richie’s friend, and said that they should

not get excited, but that there was a problem (192a-193a). Delli

Paoli told Caracappa that a good friend of his, a man that he

had known for 25 years by the name of Sam Shafano had receiv-

ed the money and was supposed to have returned within 45

minutes to deliver the heroin, but that he had not returned and

that Richie was at that time out looking for Shafano

(193a-19Sa).

Delli Paoli further stated to Caracappa that one of three

things may have happened, that Shafano may have been locked

up, that he may not have been able io obtain the heroin, or **we

took a beat’’ (195a), whicii latter phrase, in narcotics parlance,

indicates that he took off with the money. Shortly after this

meeting concluded at about 1:00 a.m., early the next morning,

the parties left the Andrea Motel and Caracappa met with Delli

Paoli at Warme’s residence. Diane Warme went to make some

coffee and Delli Paoli indicated to Caracappa that it looks like

‘they took a beat,’’ because no one has seen Sam Shafano,

although alot of people have been looking for him (196a-197a).

Delli Paoli agreed to pay the interest which was allegedly owed

to the loansharks for making the loan of the said $20,000

(197a).

On March 28, 1978 Caracappa and Petraglia met with

Warme at his residence and were told by him that they had been

looking for Shafano all night but that he had apparently disap-

pered (199a). Delli Paoli arrived at Warme’s apartment and in-

dicated that people were looking for Shafano and that they had

even been looking for him in Florida and the detectives were

given a telephone number at which they unsuccessfully tried to

reach Shafano (200a).

Caracappa indicated that whether Shafano was located or

not, that someone had to make up the $20,000 which was miss-

ing (200a), in connection with which the parties discussed the

acquisition of some cocaine in order to make up for the missing

$20,000, and Delli Paoli offered to obtain some brown heroin in

order to make a deal for the coming Friday (201a-202a). Later

that evening, Petraglia and Caracappa were informed by

Warme that Wayne Petrucha had brought 3 ounces of cocaine

to his store, but that it had been rejected and that tomorrow

night he would have the full 8 ounces required to make restitu-

tion for the missing money (206a). Later that evening, Caracap-

pa informed Warme that he was having trouble with his people

in Brooklyn and that Caracappa’s family were being threatened

so that he inquired of Warme whether instead of obtaining 8

ounces of heroin he could get him 1 pound of cocaine which

would make up for the $20,000, even if it was bad quality

(207a).

On March 29, 1978 Warme, Robert Bolella, Petraglia and

Caracappa met in the area of CoOp City in the Bronx where

Warme gave Caracappa a plastic bag containing cocaine

(217a-223a), which Warme had ripped off from Wayne

Petrucha (316a, 379a, 384a, 391a-394a).

On March 20, 1978 Caracappa and Petraglia met with

defendant Richard Warme in the Andrea Motel in the Bronx

(262a-265a). After some discussion of the aborted $20,000

heroin deal, during the course of which Warme informed the

two detectives of the way in which Warme, Delli Paoli and

Shafano had intended to divide the profits of that transaction,

Warme gave Caracappa 4 tin foil packets containing cocaine

(265a-267a). Of the 4 packages of cocaine, 2 were given to

Caracappa by Warme and in the very late evening hours of

March 30, 1978 the other two were delivered by Warme to

Caracappa after midnight so that the actual delivery of the latter

two packages was March 31, 1978 (268a).

TESTIMONY ON BEHALF OF DEFENDANTS

DIANE WARME, a co-defendant, testified that she was

acquainted with the co-defendants Robert Bolella and Wayne

Petrucha, having met both of those individuals through her hus-

band, Richard Warme (554a-555a). She also was acquainted

with petitioner Delli Paoli, having known him for several years

and in fact having previously resided in a house owned by Mr.

Delli Paoli in the Bronx (556a).

Diane Warme first met Detective Caracappa some time in

February of 1978 in her apartment when Caracappa met with

Richard Warme and engaged in a conversation regarding some

vases (559a-562a). Caracappa, who was known to Diane Warme

in his undercover identity of Frankie Black, told Richard

Warme that he had brought the vases to his people and that he

thinks that he could get about $20,000 for them (562a).

Diane Warme spoke with Caracappa on the telephone about

25 times and also saw him come to her apartment about 25 times

(560a). Caracappa’s partner, Detective Petraglia, was seen by

Diane Warme to come to her apartment about 15 times (561a).

On one occasion early in March, Caracappa expressed a concern

for the health of one of Diane Warme’s children and offered to

purchase a bicycle for him in order to exercise (565a-567a), and

on the very same occasion gave both of Diane Warme’s sons a

few dollars with which to buy candy (567a).

Mrs. Warme recalled an incident which took place on

March 19, 1978 when at about 11:30 in the evening Robert

Bolella, in the company of Caracappa and Petraglia, came to

her apartment looking for Richard Warme (580a). Caracappa

took Diane Warme to the side of one of the rooms in the apart-

ment and told her that Bolella ‘‘had him crazy,’’ and that

Richard Warme had been given some money by Caracappa and

Petraglia but that he didn’t return and that they were looking

for him (580a-581a). At that point Bolella told Diane Warme

that his life was on the line because ‘‘These guys had guns to my

head”’ (581a). Bolella then further pleaded with Diane Warme

to tell them of Richard Warme’s whereabouts, when Caracappa

said ‘‘I don’t want to know nothing. I want my fing money.***

You want to act like a wise guy and you are going to have to

take the consequences like a wise guy because I am out any

money I will blow your fing head right off your shoulders.”’

(518a). In light of all the commotion that was taking place at the

time and because of the late hour, she told Caracappa and

Petraglia that whatever they wanted was between her husband

and them and to leave her house immediately (582a). Petraglia

then told Bolella that they were out a great deal of money which

they wanted and Diane Warme began to holler at Bolella,

Frankie and Pete with the result that her son, Scott Warme,

woke up and inquired if anything was wrong but was told by his

mother to go back to bed (582a-583a).*

On March 27, 1978 Diane Warme received a telephone call

from her husband who asked her to go over to a restaurant and

pick up Caracappa and Petraglia and bring them over to the

Andrea Motel, this phone call having taken place about 5:30 or

6:00 in the evening (590a-591a). She picked up Caracappa and

Petraglia and they went in two cars over to the Andrea Motel

where Orlando Delli Paoli was standing in the office (593a).

Diane Warme told Delli Paoli that Richard Warme had in-

structed her to bring Caracappa and Petraglia over to the An-

drea Motel and at that point in time she introduced Delli Paoli

to Caracappa and Petraglia and the three men went up to a

room in the hotel while Diane Warme waited in the office

(593a-594a).

About 5 minutes later Delli Paoli, Caracappa and Petraglia

came out of the room they had been in, returned to the office

and Diane Warme and Delli Paoli left the Andrea Motel and

went to her house, arriving there at about 7:30 in the evening

(595a). When Delli Paoli and Diane Warme arrived at her

residence they noticed that Caracappa and Petralia were waiting

in front of the house in their car (59Sa).

When all 4 parties arrived in Diane Warme’s apartment she

overheard them tell Delli Paoli that they had given Richard

Warme some money and that he had not returned with it and

that they wanted their oney and both of them seemed extremely

angry (596a). At the same time two of her children, namely

Richard and Vincent, were watching television and her small

*This testimony was confirmed by the testimony of Scott Warme, the

Warme’s twelve year old son, who asserted that Petraglia, Caracappa, Bolella

and Diane Warme were engaged in such an argument (644a-648a).

children were sleeping (596a). Petraglia said to Delli Paoli ‘‘He

ran away with my fring $20,000°’ and Delli Paoli replied

‘Richie didn’t run away with your money, Richie told me that

he didn’t take your money.’” (5974).

Delli Paoli said he sis not know where Richard Warme was

and at that point Petraglia said to Diane Warme ‘‘Listen, you

know what has to be done here, you know what I got to do. I

am taking one of your kids as collateral until I get my fing

$20,000. For every day I wait, I will take a finger from your kid

and if I wait 5 days, I will take the whole fucking arm’’ (597a).

In reply, Diane Warme told them to leave the apartment,

jumped off the table she had been sitting on and obtained a

knife and attempted to stab Petraglia in the chest, but Caracap-

pa grabbed her and she told them she couldn’t care if they were

out $120,000, that they were nothing byt lowlife scum and to get

out of her house (597a). With that, Caracappa removed a pistol

from an ankle holster in his leg and said he was going to kill

Diane Warme and her husband if he didn’t get the $20,000 and

he was going to take her baby’s fingers and hands (598a).

When Diane Warme continued screaming and all of the

parties got embroiled in an argument she asked them again to

leave the house, which they eventually did (599a). Later that

following day, Diane Warme related these events to her hus-

band, Richard Warme (600a).

On March 28, 1978 at about 11:30 Richard Warme met

with Delli Paoli, Caracappa and Petraglia at the Warme’s apart-

ment (60Ca-601a). Diane Warme went to an adjoining room

where she overheard a portion of a conversation during which

Richard Warme and Caracappa said to Delli Paoli that it was

alright and that they had the problem all straightened out to

which Delli Paoli replied that he was glad to hear it (602a).

~ ee

On March 29, 1978 at about 8:00 in the evening, Diane

Warme arrived at her mother’s furniture store where she saw

her husband and Detective Caracappa (604a). She inquired of

her husband what they were doing in the store at that hour and

what he was doing with Caracappa, when Wayne Petrucha ar-

rived at the store (605a). After Richard Warme met briefly with

Petrucha and Caracappa, Warme went to the back of the store

and Wayne Petrucha remained with Diane Warme where they

engaged in a conversation during the course of which he asked

Diane Warme to go back and see how long ‘“‘it’s taking them’’

(606a). Diane Warme went to see what the other parties were

doing, but she saw that they had left the premises, a fact which

she reported to Petrucha (607a). Petrucha ran out into the yard

and came back in screaming ‘‘Oh my God, oh my God, oh God

I just got beat for $10,000 worth of Coke.”’ With that, Pitrache

ran out of the store and returned with 3 other men, all of whom

had pistols out and they commenced to run all around the store

as well as in the backyard and asked Diane Warme where her

husband was (608a). The other men were blaming Petrucha for

the loss of the cocaine, telling him that he wasn’t ‘*supposed to

let it out of his hands unless they showed you the money first’’

(609a). They then instructed Petrucha to stay in touch with

Diane Warme and not to leave until he was able to reach her

husband and they told him that they did not want their cocaine

back, they just wanted their money (610a).

When Richard Warme called Diane Warme later in the day

she asked him why he had robbed Petrucha (61 1a) and in a later

conversation on March 30, 1978 Richard Warme told his wife

that Caracappa had a gun and instructed him that he better get

the packages whatever way he could and he had no choice

(617a). Also on the 30th, in a face to face meeting, Richard

Warme told Diane Warme that if he did not get the package

from Wayne that he would have a lot of problems and that he

had to take the package from Petrucha in order to satisfy

Caracappa and Petraglia because Caracappa’s daughter had

been kidnapped (626a-627a).

ROBERT ORLANDO DELLI PAOLI, called as a witness

in his own behalf, indicated that he was acquainted with the

family of Richard Warme, including his wife, Diane Warme, as

well as his children, having known the family for about two

years inasmuch as the Warme family had resided in a house

which Delli Paoli had owned in the Bronx (649a-65 1a). Delli

Paoli also indicated that he was familiar with Diane Warme’s

mother, having purchased some chairs from her in her furniture

store in the Bronx (653a-654a), and Delli Paoli indicated that on

the day he was seen by Detective Caracappa in the furniture

store in the Bronx that he had gone to the store that day to pick

up some chairs which he had purchased (653a). Referring to

various photographs which had been introduced into evidence

by the government, Delli Paoli testified that on many occasions

he had met with Richard Warme in various locations and talked

to him about various subjects, including the construction

business in which Mr. Warme was engaged at the time

(654a-655a).

On the 27th of March, 1978, Richard Warme had a conver-

sation with Delli Paoli during the course of which Warme in-

dicated to Delli Paoli that he was in serious trouble (with

money) and requested that Delli Paoli speak to the two in-

dividuals with whom he had become embroiled in this trouble to

see whether he could help Warme (655a-658a).

Delli Paoli agreed that he would try to help resolve the pro-

blems over money that Richard Warme was having with these

individuals, as a result of which later in the day Diane Warme

brought two men over to meet with Delli Paoli, which two men

later turned out to be the undercover detectives involved in the

matter, namely Detectives Caracappa and Petraglia

(658a-661a). Delli Paoli went into a room at the Andrea Motel

where he met with Petraglia and Caracappa without anybody

else being present at the time (665a). Caracappa said to Delli

Paoli ‘‘that there is an awful lot of money involved in here, and

iene tat ASI i ns

if you say you are interested in Richie you f’ing old man, old

bastard, something has got to be done’’ (666a). Delli Pool told

Caracappa not to get excited, but when someone made a rattlin

aad ee door, Caracappa and Petraglia both jumped up te

ir guns out and inquired who was at the door

iste ot When Caracappa and Petraglia realized that the

e was only being caused by a maid who was cleaning the

room, they asked where Richard Warme was, but Deili li

refused to tell them of Warme’s wiiatuelhate, even mont a he

knew that Warme was hiding in another conn of the aie

(668a). Caracappa indicated to Delli Paoli that he could hel

Warme because he owned a motel and had money, but Dell

Paoli said he didn’t know what he could do until te found

what the whole problem related to (668a-669a). Delli Pa

thereafter went to Diane Warme’s house, arriving there ab sm

7:30 in the evening, where he met Diane Warme, Caracappa . :

Petraglia, and the officers inquired of Delli Paoli pra ‘Sic

was, indicating that they did not believe that Delli Paoli was n

aware of his whereabouts at the time; however, Delli tae

oe for Warme’s safety so he refused to tell them where

arme was (671a-673a). The detectives indicated that one of

the children of the two undercover detectives had been kidn

ped at which point Delli Paoli said ‘‘My God, this sounds il

very serious deal here, kidnapping kids’’ (674a). Delli Paoli

| testified that he was reluctant to relate the remainder of this in-

cident, indicating that the testimony Diane Warme had given

with respect to the threats made regarding her children was ex-

actly what occurred at that time (674a-675a).

Delli Paoli denied that he ever tol

Petraglia that it looked like there had been sep cp —

named Sam Shafano whom he had known for 25 years had

taken the money and not made a delivery of heroin (676a). Delli

Paoli also testified that he did not know anyone by the mate of

Sam Shafano (676a-677a). Directing his attention to an address

book which was seized at the time of his arrest, petitioner’s

lawyer asked him some questions with reference to a telephone

number, namely, 914-423-4143, appearing in the book and in-

dicated that the number belonged to ‘‘Debbie Sani, a hooker’’

who was known to Delli Paoli (680a-682a). However, after ob-

jection by other counsel, Mr. Delli Paoli’s attorney withdrew

the offer of the telephone book and the prosecutor indicated

that he intended to offer it upon his case (686a).

On March 28, 1978 Richard Warme called Delli Paoli at his

motel and Delli Paoli informed him that he was scheduled to

meet with Caracappa and Petraglia, but Warme indicated that

he did not wish to meet with them (691a-692a). At about 12:30

Delli Paoli met with Caracappa and Petraglia, in the company

of Diane Warme at her residence (692a). Caracappa again in-

dicated that a lot of money was involved and then told Delli

Paoli that ‘‘we got this all solved. It’s half solved.’’ (693a).

Caracappa began to use profanity and indicated that Delli

Paoli would have to-help them solve their problem, at which

point Delli Paoli inquired to Caracappa what the problem had

to do with him (694a). When Delli Paoli further emphasized

that he was not aware of what the problem had to do with him,

Caracappa said to him ‘‘Did you know about this coke thing,

about coke?’’ (695a). When Caracappa mentioned the word

coke Delli Paoli ‘‘jumped up from the table’’ and said ‘‘I don’t

want to talk about this for a million dollars, this kind of a sub-

ject. I want to get out of here. I’m a legitimate businessman. I

want to get out of here.’’ (695a).

When Caracappa persisted that Delli Paoli would have to

see what he could do to get some money, Delli Paoli indicated

that if Caracappa went to a shylock that in that event Delli Paoli

would pay the interest which was all that he was willing to do at

that point (676a). When Caracappa insisted he couldn’t get the

kind of money involved, Delli Paoli got up and walked out of

the apartment (696a-697a). From that point on, he never met

en ee

with any of the men again (697a), although he did have a

telephone conversation with Caracappa (697a-698a). Delli Paoli

denied that he had agreed to be a source of supply of a large

quantity of heroin (707a).

Delli Paoli also testified that in light of the incident which

took place on March 27, 1978, during which threats had been

made on Diane Warme’s life, that petitioner was fearful of her

safety (702a).

REASONS FOR GRANTING WRIT

In affirming the judgment of conviction, the Court of Ap-

peals decided numerous federal questions in ways in conflict

with applicable decisions of this Court, and contrary to deci-

sions in other circuits. Additionally, the Court of Appeals has

so far sanctioned departures by the District Court from the

usual course of judicial proceedings as to call for an exercise of

this Court’s power of supervision.

POINT ONE

THE COURT COMMITTED REVERSIBLE ERROR BY

PERMITTING THE GOVERNMENT TO

DEMONSTRATE, BOTH THROUGH ITS OPENING

STATEMENT AS WELL AS THE SUBSEQUENT

TESTIMONY OF DETECTIVE CAACAPPA, THAT

CO-DEFENDANT WARME HAD MADE A STATE-

MENT TO CARACAPPA THAT PETITIONER DELLI

PAOLI HAD JUST COMPLETED A $50,000 DRUG

DEAL IN MIAMI, FLORIDA, A HIGHLY PRE-

JUDICIAL HEARSAY STATEMENT WHICH WAS

INADMISSIBLE BOTH BECAUSE IT CONSTITUTED

IMPERMISSIBLE ‘OTHER CRIMES” EVIDENCE

AND, MOREOVER, SINCE IT WAS A CO-

CONSPIRATOR’S HEARSAY DECLARATION

WHICH FAILED TO MEET THE RELEVANT PRE-

CONDITIONS FOR ADMISSIBILITY.

(a) The hearsay declaration of the purported commission

of the “other crime’’ was improperly admitted into evidence

since it was not relevant to any issue in dispute at the trial and

thus merely served the impermissible purpose of prejudicing

Delli Paoii by permitting the jury to infer that he was a bad man

inclined to deal in narcotics, a circumstance which was exacer-

bated by the fact that the court itself held the view that the

declaration was untrue.

The government was permitted by the Court to commence

the development of a highly prejudicial line of proof that peti-

tioner Delli Paoli had engaged in a heroin transaction complete-

ly unrelated to the crimes charged in the indictment at the very

inception of the trial when the prosecutor, in his opening state-

ment, alerted the jury that he intended to prove during the trial

that co-defendant Richard Warme had informed Detective

Caracappa, the primary witness for the government in the pro-

secution herein, that petitioner Delli Paoli had recently com-

pleted a $50,000 drug deal in Miami, Florida. In the

prosecutor’s relevant remarks on that subject during the course

of his opening statement, it was made crystal clear to the

members of the jury that the government intended to prove that

the individual who had allegedly completed this major drug

transaction in Miami, Florida was in fact petitioner Delli Paoli

(51a-55a). In so doing, the prosecutor was able to portray Delli

Paoli at a juncture in the trial when none of the relevant

evidence had yet been adduced, as an individual who had

allegedly committed a serious narcotics’ crime which was totally

unrelated to the prosecution which was about to commence,

and thus fatally infected the minds of the jurors in connection

with their evaluation of the evidence which was about to unfold

during the course of the trial itself.

een

“ mde uta tetisnwee Dubin tte wet

It is significant to note at the very outset that the court

below failed to heed the recent admonition of the court ‘‘that

admission of such strongly prejudicial evidence should normally

await the conclusion of the defendant’s case, since the court will

then be in the best position to balance the probative worth of,

and the government’s need for, such testimony against the pre-

judice to the defendant [United States v. Benedetto, 571 F.2d

1246, 1249 (2d Cir. 1978).

Shortly after the government’s opening statement, during

the testimony given by the government’s very first witness,

Detective Caracappa, it was elicited by the prosecutor that the

individual who was ‘‘overseeing the heroin deal was very, very,

very careful and that he didn’t want to meet anybody because he

had just completed a $50,000 ... .”” (137a-138a), at which

point in the testimony objection was raised by trial counsel for

Delli Paoli who obviously was aware of what the prosecutor was

driving at in light of the clear fact developed during his opening

statement that he intended to bring out during the course of the

trial that Delli Paoli had completed a $50,000 drug deal in

Miami, Florida. This projected line of testimony was made even

more damaging by certain other allusions which took place im-

mediately preceding its development by the prosecutor, during

the course of which Caracappa testified that Richard Warme

had indicated to him that ‘‘the old man was hooked up with fat

Tony Salerno and the old Pleasant Avenue people’’ (124a) a line

of testimony which itself was objected to by counsel for Delli

Paoli and Warme on the grounds that its only purpose was to

indicate an alleged link between Delli Paoli and organized

crime.

In connection with the objection by counsel to the develop-

ing line of testimony concerning the alleged $50,000 drug deal

engaged in by Delli Paoli in Miami, Florida, the court heard

argument on the question of the relevance of the so-called

*‘other crimes’’ testimony on the issues which were framed in

the trial itself, at the conclusion of which the court determined

that it would permit this line of testimony as to the alleged other

crime committed by Delli Paoli, in order to demonstrate that

the defendants were capable of delivering heroin to Detective

Caracappa and the other undercover agent. This theory of pur-

ported relevance was predicated upon the prosecutor’s assertion

that there would be no proof during the course of the trial that

any heroin ever was transferred from any of the defendants to

the government’s undercover agents (138a-149a). Of course, as

already pointed out, in permitting the introduction of this other

crime evidence at that very early stage of the trial, the court fur-

ther exacerbated its failure to heed the admonition in United

States v. Benedetto, supra, about the prejudicial impact of per-

mitting such evidence, even assuming its relevance, at a juncture

in the trial when it was virtually impossible to determine the pro-

bative worth of, or the government’s necessity for, such

testimony as balanced against the clear prejudice to the defen-

dant.

The failure on the part of the trial court to defer a con-

sideration of the propriety of admitting such other crimes

evidence until the proper stage of the trial, is only the first of

numerous hurdles standing in the way of a demonstration by the

government that the court below did not commit reversible er-

ror in admitting this highly prejudicial testimony relating to the

drug deal in Florida. Indeed, there are at least 3 other major

reasons for this court to declare that the admission of this pre-

judicial testimony of other crimes was reversible error. In

analyzing the reasons spelling out inadmissibility, it is important

to focus upon the theory upon which the District Court judge

based his decision to admit the other crimes evidence, since Se-

cond Circuit has recently indicated the inappropriateness of

retroactively sanctioning lower court rulings on an issue involv-

ing so-called ‘‘other crimes’’ evidence on theories not utilized at

the time the evidence is adduced by the government, especially

since the protective limiting instructions the court saw fit to

Oe ee ee ae

render in this prosecution would be meaningless if the admission

of the evidence relating to the heroin deal in Miami, Florida

could be upheld by the Court of Appeals on grounds other than

those adopted by the trial judge [United States ». O’Connor,

580 F.2d 38, 42 (2nd Cir. 1978)}.

Before turning to the question of whether the so-called

other crimes evidence was relevant to any issue in dispute at the

trial, we note that this inquiry into relevance may not even be

necessary in this case inasmuch as there is a substantial indepen-

dent ground for the exclusion of the other crimes evidence since

the testimony embodying the alleged drug deal engaged in by

Delli Paoli in Miami, Florida was based exclusively upon a hear-

say declaration made by co-defendant Warme to Detective

Caracappa, and is totally unsupported by any evidence what-

soever tending to indicate that such other crime was ever com-

mitted by Delli Paoli, who emphatically denied during the

course of the trial that he had ever engaged in such a course of

criminal conduct (712a). As pointed out by a highly regarded

commentator in the field of evidence, ‘‘Doubt about whether

the other crime took place and the serious time and prejudice

problems which can arise when such a subsidiary issue is con-

tested often provides strong independent grounds for the exclu-

sion of such other crime evidence’? [Weinstein’s Evidence,

paragraph 404[09] at 404-47 (1977)].

In the case at bar, the District Court judge did not even

trouble himself to instruct the jury that there was serious doubt

as to whether such a crime had ever been committed as

underscored by the fact that the court itself held the view that

Warme’s statements were ‘‘puffery’’ (Sentencing remarks,

816a.2-816a.3). Nevertheless, the court merely alluded in pass-

ing that the jury should consider whether the other crimes

evidence was truthful (145a). As a result, in light of the court’s

own view that the ‘‘puffery’’ showed an absence of truth, and in

light of the later denial by Delli Paoli that he had ever engaged

in such a drug deal, the admission of the highly prejudicial

evidence, in the face of a total lack of proof that it had ever

taken place, in and of itself constitutes reversible error warran-

ting a reversal of Delli Paoli’s conviction [see United States v.

Leitner, 312 F.2d 107 (2d Cir. 1963) (Court saw fit to give strong

charges involving the fact that serious doubt existed about the

so-called other crime)}.

Even if there had been proof positive in the case that Delli

Paoli had engaged in a $50,000 drug deal in Miami, Florida, the

evidence of this so-called other crime would nonetheless have

been inadmissible in light of the fact that it utterly failed to meet

the prerequisites for admissibility set forth in Sections 404(b)

and 403 of the Federal Rules of Evidence. To begin with, in

order to pass muster under the first branch of admissibility test

which is set forth in Section 404(b) it was necessary that the

evidence be substantially relevant to some issue in the trial itself

[United States v. Benedetto, supra, at 1248}. Absent such a

showing of significant relevance to an issue in dispute at the

trial, the statement made by Warme about Delli Paoli could on-

would thus have been likely to have engaged in the conspiracy

charged in the indictment in Count One thereof to improperly

distribute heroin in violation of the relevant sections of the

United States Code.

An evaluation, however, of the theory upon which both the

prosecutor and the District Court judge sought to justify the aa-

missibility of the evidence con ined in the statement by Warme

that Delli Paoli had allegedly involved himself in a $50,000

heroin transaction in Miami, Florida is not even remotely rele-

vant to any issue which had been framed at the trial itself. The

only count of the indictment which involved a consideration by

the jury of whether the defendant Orlando Delli Paoli was in

some fashion involved in heroin traffic was Count One of the

+ ee oe alll

Wirt rttem nt

indictment involving the charge of conspiracy. Inasmuch as the

basis for the District Court judge’s ruling of the admissibility of

the other crimes evidence was that it was relevant to the ques-

tion of whether the defendants were capable of consummating

the delivery of heroin to the undercover agents, the apt inquiry

is whether petitioner Delli Paoli’s capability of actually consum-

mating the heroin transaction which his co-defendant Warme

was discussing with the undercover agents, was a relevant issue

at the trial of the indictment.

As to that, it is the position of appellant Delli Paoli that not

only is that not a substantially relevant issue at the trial herein,

as required by United States v. Benedetto, but that the question

of petitioner’s ability to actually consummate the heroin tran-

saction being discussed by Warme and the undercover agents

was no issue at all at the trial. Careful analysis of the rationale

underlying the District Court judge’s admission of the other

crimes evidence spells out rather clearly that the court deemed

the evidence relevant to show an ability to deliver heroin

because the prosecutor had indicated that there would be no

proof forthcoming during the trial that any heroin transaction

ever was actually consummated between the undercover agents

and the respective co-defendants.

Even if we were to proceed for the sake of argument upon

an assumption that the question of whether the co-defendants

actually possessed the capability of consummating the heroin

transaction with Detectives Caracappa and Petraglia may have

loomed in the judge’s mind as a potentially relevant issue at the

time at which the prosecutor first called the jurors’ attention to

the other crimes evidence at the very inception of trial, later

developments made it abundantly clear that any such issue

could not really have been in dispute at the trial. The judge’s in-

ability to properly evaluate the relevance of the other crimes

evidence underscores the ratio decidendi of the admonition in

Benedetto that the type of strongly prejudicial evidence

presented by allusions to other crimes by a defendant is best

held back by the government for introduction after the conclu-

sion of the defendant’s case, at which time the court is best able

to balance the probative worth of the evidence against the clear

potential for prejudice to the defendant which it presents.

In a more recent case which also serves to highlight the

necessity for waiting until the end of the defendant’s case before

introducing so-called other crimes evidence, the court had occa-

sion to elaborate upon the purpose of the rule in terms of poin-

ting up the difficulty of determining whether the issue upon the

prosecution offers the other crimes evidence is actually in

dispute, until it becomes clear whether the defendant is going to

take the stand and, if he actually opts to testify, what his

defense is going to be [United States v. Williams, 577 F.2d 188,

191 (2d Cir. 1978)].

In the trial in this case, Detectives Caracappa and Petraglia

gave testimony which, if accepted by the jury, would place Delli

Paoli right in the midst of a heroin transaction being negotiated

by co-defendant Warme with Detectives Caracappa and

Petraglia. To that end, the government adduced testimony from

Detectives Caracappa and Petraglia relating to a meeting on

March 27, 1978, during the course of which Delli Paoli in-

dicated to Caracappa that a good friend of his named Sam

Shafano had received the $20,000 delivred by Caracappa to

Warme in order to purchase heroin (192a-194a).

Caracappa further testified that Delli Paoli had indicated

to him that Shafano had not yet returned with the heroin, thus

indicating that he may have been locked up or that he couldn’t

obtain the heroin or that perhaps ‘‘we took a beat,’’ which lat-

ter phrase, in narcotics parlance, indicates that Shafano may

have taken off with the money (194a-195a). Caracappa further

testified that on a subsequent occasion on the following day he

had another meeting with Delli Paoli during the course of which

Delli Paoli indicated that he had been looking for Shafano but

couldn’t find him, but that he agreed to make up the missing

$20,000 (197a). Delli Paoli also allegedly informed Caracappa

that he was going to try and get in touch with another connec-

tion for some brown heroin to make another deal for the com-

ing week (202a). That line of testimony by Detective Caracappa

regarding Delli Paoli’s discussion with him of not one but two

heroin transactions, as well as Deli Paoli’s apparent involve-

ment, on the basis of Caracappa’s testimony, with the actual

source for the heroin, namely Sam Shafano, when considered in

conjunction with the surveillance testimony which tended to in-

dicate that Delli Paoli met with defendant Warme at some

critical points during the investigation, presented an evidentiary

foundation which, when considered in the light of Delli Paoli’s

subsequent testimony, abundantly demonstrates the utter lack

of probative value of the question of whether petitioner was

capable of delivering heroin to the detectives.

Delli Paoli actually testified at the trial below and denied

that he had ever engaged in the incriminating conversations with

Detectives Caracappa and Petraglia insisting that, quite to the

contrary, he had refused to talk to them about any drug transac-

tions whatsoever in which Warme may have himself been in-

volved (694a-697a). Delli Paoli did not even remotely suggest in

his testimony that he had engaged in the conversations adverted

to by Caracappa, and certainly did not create any issue about

whether he really meant business or was instead misleading the

undercover agent in order to perpetuate the theft of $20,000.

His absolute denial, pursuant to which he asserted that he did

not commit the alleged acts adverted to by Detectives Caracap-

pa and Petraglia relating to a narcotics transaction would have

completely removed from the case any question of whether he

was capable of consummating the heroin transactions being

discussed by the undercover agents and Warme even if we were

to assume for the sake of argument that it was ever a relevant

issue in this case. Thus, just as the prosecutor’s justification for

other crimes evidence was repudiated by the court in United

States v. Williams because the defendant Williams took the

stand and as his sole defense, claimed that he did not commit

the alleged acts in question at all [United States v. Williams,

supra, at 191], so too, when Delli Paoli took the stand in this

case and as his sole defense claimed that he did not commit any

of the acts underlying the charges in Count One of the indict-

ment, the true issue for resolution as to Delli Paoli’s guilt or in-

nocence on Count One of the indictment was whether Delli

Paoli was telling the truth or whether the jury should instead re-

ject Delli Paoli’s relevant testimony and accept the contrary

testimony of Detectives Caracappa and Petraglia.

In no conceivable. way could the question of whether the

defendants actually were capable of delivering narcotics be

deemed a relevant issue in this prosecution in light of the way in

which the true issue was framed after Delli Paoli gave his

testimony. Of course, since the court had erroneously permitted

the introduction of the devastating other crimes evidence at a

point in time considerably prior to the conclusion of the defen-

dant’s case, and in fact even permitted the prosecutor to allude

to this type of prejudicial evidence in his very opening state-

ment, the court foreclosed itself from being in a position to pro-

perly evaluate the admissibility of the statement by Warme that

Delli Paoli had engaged in a $50,000 drug deal in Miami,

Florida, at such later time during the trial when he could have

properly evaluated all of the relevant evidence on that particular

issue.

In so failing to properly handle the other crimes evidence, :

the District Court judge not only violated the rule requiring that

he await the resolution of this issue until after the defendant has

completed the presentation of his case, but in the context of this

prosecution thus permitted the jury to be alerted from the very

outset of the trial of the so-called heroin transaction in Maimi,

Florida. The inexorable consequence of this conduct by the

OO cc tac

court was to fatally infect the jurors’ minds throughout the trial

against the defendant Delli Paoli by conveying to them that he

was the type of a ‘‘bad man’’ who had engaged in a completely

unrelated heroin transaction which might conceivably suggest to

the jurors at an early junction of this proceeding that Delli Paoli '

would thus also be the type of bad man who might commit the

crimes with which he was charged in the indictment at trial

herein.

Finally, as pointed out by United States v. Benedetto and

other recent cases such as Williams and O’Connor, involving

the government's use of other crimes evidence in a criminal pro-

secution, even if the trial judge had been able to conclude in this

case that the other crimes evidence was somehow relevant, that

is not the end of the inquiry because Section 403 of the Federal

Rules of Evidence also required the judge to weigh the probative

value of the evidence against the harmful consequences

presented by such highly prejudicial evidence of another

unrelated narcotics crime. In the prosecution at bar, even if the

other crimes evidence could somehow be deemed relevant to an

actual issue in the trial, any such relevance would have been so

remote and the necessity for the evidence so minimal, that the

court would have been required to exercise its power under Rule

403 to exclude the evidence because of the tremendous potential

for prejudice.

This alarming potential for prejudicing the defendant Delli

Paoli takes on even added significance in light of the other

hurdles barring admissibility in this case in the form of both the

fact that there was no proof whatsoever that Delli Paoli had ac-

tually committed the crime in question, as well as the significant

consideration that the court improperly permitted the jurors to

reflect upon this devastating other crimes evidence from the

very inception of the trial through both the prosecutor’s open-

ing statement as well as the testimony of the first witness called

by the government, thus irretrievably infecting the minds of the

jurors against Delli Paoli.

(b) The admission into evidence pursuant to Rule

801(d)(2)(E) of the declaration regarding the $50,000 drug deal

in Florida, was also violative of the rule prohibiting hearsay

testimony. In that connection, the declaration failed to comply

with the necessary pre-conditions of admissibility, since the

statement was deemed unreliable by the court and, moreover,

the other non-hearsay evidence adduced at trial failed to show

that the declaration was either made during the course of the

conspiracy or that the co-conspirator-declarant had personal

knowledge of the subject of his statement.

It has already been argued in Subpoint One (a) of this peti-

tion, supra, that the court committed reversible error in admit-

ting the statement by Caracappa that Warme had informed him

that his connection, namely Delli Paoli, had engaged in a

$50,000 drug deal in Miami, Florida, since the admission of that

piece of evidence relating to the alleged commission by Delli

Paoli of another unrelated crime violated the prohibition

against the admission of such ‘‘other crimes’’ evidence for a

variety of reasons, all turning upon the conclusion that the only

purpose of the admission of this testimony would be to seriously

prejudice the interests of Delli Paoli by demonstrating that he

was a bad person, thus inclined to commit the drug transactions

alleged in the indictment.

In this subpoint, we turn to another independent ground

for the exclusion of that piece of evidence, namely that the

statement by Caracappa as to the remark made by Warme con-

stituted inadmissible hearsay testimony not subject to the excep-

tion relied upon by the District Court judge involving

statements by co-conspirators made during the course of and in

furtherance of the conspiracy, as that exception is set forth in

Rule 801(d)(2)(E) of the Federal Rules of Evidence.

In analyzing the hearsay nature of the statement in ques-

tion, it is preliminarily necessary to point up once again that the

ne een ee vee

court admitted the relevant testimony by Caracappa ‘‘to

establish the fact that these were earnest negotiations by people

who had the capability of delivering the heroin and I take it that

this is designed to prove that they had such abilities’’ (140a).

And, in that connection the jury was instructed that they could

only consider the evidence on the issue of whether the defen-

dants had such an ability to deliver heroin if they first found

that the transaction actually had occurred and that the

testimony of Caracappa was truthful (145a). It is thus clear that

the evidence was admitted by the court for purposes of

establishing the truth of the statement allegedly made by Warme

to Caracappa that Delli Paoli had engaged in the drug deal in

Miami, Florida, albeit for the limited evidentiary inquiry of

considering the fact that Delli Paoli engaged in that drug deal, if

the jury indeed had found that to be a fact, on the question of

whether the defendants were capable of delivering heroin to

Detectives Caracappa and Petraglia.

Before admitting a statement of a co-conspirator pursuant

to Rule 801(d)(2)(E) it was necessary that the condition of fact

set forth in the Rule be fulfilled, to wit, that the statement by

co-conspirator Warme be made ‘‘during the course and in fur-

therance of the conspiracy.” It has long been the law that the

trial judge may not ‘‘abdicate his traditional duty to decide

those issues of fact which determine the applicability of a

technical exclusionary rule,’’ a requirement which clearly ap-

plies to hearsay utterances by co-conspirators and which man-

dates that the trial judge be assured that ‘‘the prosecutor has

proved participation in the conspiracy, by the defendant against

whom the hearsay is offered, by a fair preponderance of the

evidence independent of the hearsay utterances’’ [United States

v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969), cert. denied, 397

U.S. 1028 (1970)]. That rule requiring the determination of the

conditions of fact relating to the admission of co-conspirator’s

statement has been maintained in accordance with provisions of

Rule 104(a) of the new Federal Rules of Evidence [Weinstein’s

Evidence, paragraph 104[05], page 104-43 (1977)].

Indeed, as pointed out by th i

tator in his treatise on evidence: ner irr rr ame

ait atagiaie SH te a letter respecting Rule 104(b) in 1970 to

es of Practice and Procedure, relating to

hearings before the Special Sub-committee on Reform of

Federal Criminal Laws of the Committee on the Judiciary of th

House of Representatives, in which he expressed his view tien

trial judges should be required to make a predetermination of -

whether such a condition of fact has been fulfilled [Weinstein’s

Evidence, paragraph 104[05] page 194-41 at footnote 12].

in the District Court below, the judge, when confronted |

with the relevant hearsay objection b

eethe | y counsel (138a-141

no indication as to whether the court had pe made Ph

mination as to whether the conditions of fact had been fulfilled

but merely saw fit i ting i i

nfo y it to give the following limiting instruction to

‘“‘Moreover, the testimony which is -

I » the being received

mentioned earlier, the statement of one dedi a

conspirator concerning the

conspirator. They aren’t admissible against the other.

- co-conspirator until the existence of the conte an

me participation of the other alleged co-conspirator have

n established by extrinsic evidence: (150a).

An examination of the record of the trial

the fact that ihe'tliel Judge did ct ‘se0 the so‘evertammioen fiat

determination of his own as a pre-condition to permitting the

statement by Caracappa that Warme had told him about Delli

| Paoli’s involvement in a drug transaction in Florida. This viola-

| ‘tion of the judge’s responsibility imposed by Rule 104(a) as well

as relevant decisions such as United States v; Geaney, sup

‘resulted in a turn of events which in and of itself constitutes

grounds for a reversal of the judgment of conviction in light of

the fact that the isntructions actually given at the time the te

ment was admitted into evidence, were Clearly insuffici al

well as confusing and misleading. re

Before turning to an examination of the manner in which

the court erred in giving the isntructions it deemed appropriate

in connection with the co-conspirator’s declaration, we first. ex:

amine the numerous other reasons which appear in the record

which demonstrate the inadmissibility of the declaration. by

Warme as violative of the hearsay rule, in light of the clear inap-.

plicability of the co-conspirator declaration exception set forth

in Rule 801(d))2)(E), as that exception has been interpreted. by;

this court. - )

_ In determining whether the pre-conditions set forth in Rule.

801(d)(2)(E) have been fulfilled, it is now clear that the court is:

not only required to find, on the basis of the non-hearsay

evidence adduced at trial, that the declaration is in furtherance:

of the,conspiracy, but the court must also make a “‘determina-

tion that there is sufficient other evidence to establish that the

defendant against who the declaration is offered was a member

of the conspiracy when the declaration was made”’ [United

States, y. Puco, 476 F.2d 1099, 1107 n. 2 (2d Cir. 1973) cert.

denied, .414 U.S. 844 (1973)}. w cratement’|

The Puco court also clearly underscored yet another pre-

condition which requires that in addition to a determination of

whether the Rule 801 pre-conditions have been met, the court

must also determine whether the ‘‘statement bears sufficient in-

dicia of reliability to assure the trier of fact an adequate basis

for evaluating the truth of the declaration in the absence of any

cross-examination’’ [United States v. Puco, supra at 1107]. This

additional requirement imposed by Puco, that “‘the trial court

must, despite the fact that it may have already determined that

the extra-judicial statement falls within an exception to the hear-

say rule, specifically determine, prior to deciding whether to ad-

mit the statement, that *** the statement must bear sufficient

indicia of reliability to assure an adequate basis for evaluating,

the truth of the declaration,’’ has recently been reaffirmed by

this court [United States v. Oates, 560 F.2d 45, 81 (2d Cir.

1977)].

Even the most cursory evaluation of the other non-hearsay

evidence adduced at trial, readily demonstrates that the admis-

sion by the trial court of the hearsay statements regarding the

Miami drug deal pursuant to Rule 801(d)(2)(E) was violative in

two separate regards of the principles discussed in United States

v. Puco. To begin with, there was no evidence whatsoever ad-

duced at trial which was indicative of the reliability of the state-

ment. Delli Paoli himself vehemently denied that he had engag-

ed in any such narcotics transdction in Florida, and the court

itself recognized, and made it crystal clear at the time of Delli

Paoli’s sentence, that it was the court’s own personal view of

the facts that the statement by Warme to Caracappa relating to

Delli Paoli’s involvement in the Miami drug deal was nothing

more than ‘‘puffery’’ (816a.2-816a.3). Inasmuch as it was the

court’s responsibility to determine, prior to deciding whether to

admit the statement, whether the statement bore sufficient in-

dicia of reliability, there is absolutely no room for argument in

light of the court’s own view that the statement was untrue and

was merely voiced by Warme as ‘“‘puffery’’ on his part, that the

statement should have been excluded on that ground alone,

especially in light of the absolute dearth of any evidence in the

record which would otherwise tend to indicate the reliability of

the statement.

Additionally, one of the other pre-conditions for ad-

missibility, as underscored by the Puco court, required that the

District Court make a pre-determination that there was suffi-

cient other evidence to establish ‘‘that the defendant against

whom the declaration is offered was a member of the conspiracy

when the declaration was made”’ [United States v. Puco, supra,

at 1107]. As to that, the record reveals that apart from the hear-

say declarations of co-defendant Warme to undercover agents,

there was no ‘‘other evidence’ adduced at the trial which would

tend to demonstrate that Delli Paoli was a member of the con-

spiracy ‘‘when the declaration was made’’ on March 16, 1978

(136a-144a). All of the other non-hearsay evidence in the record

Se wall

pertaining to Delli Paoli relates to occurrences which transpired

subsequent to March 16, 1978, and all of that other evidence

falls woefully short of the mark in demonstrating in any fashion

that Delli Paoli had become a member of the conspiracy alleged

in-the indictment prior to March 16, 1978.

Yet another reason for excluding the statement is

predicated upon the obvious fact that Richard Warme, the co-

conspirator declarant, had no personal knowledge of the sub-

ject’ of his statement relating to the purported drug deal in

Miami, Florida. As pointed out by Judge Weinstein in his

treatise on the subject, there is a great ‘‘possibility of prejudice

*** in admitting statements whose reliability is suspect. To ob-

viate this possibility *** Rules 805 and 403 should be interpreted

as requiring the declarant to have personal knowledge of the

facts to which his statement relates’’ [Weinstein’s Evidence,

paragraph 801(d)(2)(E) [01] page 801-158 (1977)}.

Finally, it seems clear that further error was committed by

the court below when, in opting to submit the question of the

admissibility of the co-conspirator Warme’s declaration to the

jury, the court both seemingly abdicated its own responsibility

to finally determine the question of admissibility and, in so do-

ing, also gave erroneous instructions on the subject.

To begin with, the instruction given by the trial judge at the

time the statement was first admitted into evidence was insuffi-

cient as a matter of law inasmuch as the court failed to instruct

the jury that it was necessary that the statement be made in

‘‘furtherance of the conspiracy,’’ as required by Rule

801(d)(2)(E).

Moreover, the court’s attempts to instruct the jury that the

rule required that the co-conspirator’s declaration could not be

considered until such time as the conspiracy had first been

established to their satisfaction by independent non-hearsay

evidence fell far short of the mark and was somewhat confus-

ing. Instructing the jury that the statements ‘‘aren’t admissible”’

until the existence of the conspiracy and the participation of

Delli Paoli ‘‘have been established by extrinsic evidence (150a),

could only have tended to obfuscate the situation. There is no

conceivable way the jurors could have known what the court

meant by ‘‘extrinsic evidence’’ in the absence of a far more

detailed exposition on that point, and the other instruction that

the statements ‘‘aren’t admissible’ certainly does not tend to

admonish the jurors that they should not consider the co-

conspirator’s declarations until they have first determined that

there was sufficient independent non-hearsay evidence of the

other relevant factors.

Moreover, having seen fit to give the question of whether

the declarations regarding the Florida drug deal by co-

conspirator Warme were admissible to the jury at a point, in

time when no other evidence had yet been adduced of either

Delli Paoli’s part of the conspiracy or indeed any evidence at all

proving a conspiracy between Warme and Delli Paoli, the

danger of bootstrapping, especially since the jury was actually

given the issue of admissibility, required a proper cautionary in-

struction and, an instruction given at the end of the trial is not

deemed to correct the erroneous refusal to give the proper cau-

tionary instruction when it was first required [United States v.

Jackson, 536 F.2d 628, 630 (Sth Cir. 1976)}.

While the court did eventually see fit to again give the ques-

tion of admissibility to the jury during its formal charge at the

conclusion of the trial (763a-764a), it seems clear to us that the

judge’s abdication of his responsibility to decide the question of

admissibility himself as well as his giving of faulty jury instruc-

-tions when the evidence was first introduced, renders the later

instructions nugatory and does not in any fashion detract from

the conclusion that reversible error was committed in that con-

text.

nee aatin_tan

POINT TWO

REVERSAL OF THE JUDGMENT OF CONVICTION

IS REQUIRED BECAUSE OF THE MISCONDUCT ON

THE PART OF THE PROSECUTOR IN INTEN-

TIONALLY INJECTING INTO THE TRIAL THE

SPECTRE OF ORGANIZED CRIME WITHOUT ANY

LEGITIMATE PURPOSE.

When the prosecutor announced at the very outset of the

trial, during his opening statement, that he intended to

demonstrate that the defendant Delli Paoli had been involved in

a $50,000 drug transaction in Miami, Florida, it had not yet

become clear that the government intended to utilize not only

this highly prejudicial piece of ‘“‘other crimes’’ evidence in its ef-

fort to convict the respecive defendants, but that they liad also

fully intended from the very outset, to adduce yet another hear-

say declaration from the lips of Richard Warme for the ex-

clusive purpose of persuading the jury that Orlando Delli Paoli,

who was referred to during the trial as the ‘*old man’’ (46a,

111a-112a), was connected to organized crime. This reference to

the purported association of the defendants to an organized

crime syndicate had the unavoidable impact of seriously pre-

judicing the rights of the petitioner to a fair trial with the result

that the judgment of conviction must be reversed.

It has already been demonstrated in Point One, supra, that

the introduction of the hearsay declaration by co-conspirator

Richard Warme pertaining to Delli Paoli’s alleged involvement

in a Miami drug transaction in and of itself constituted reversi-

ble error on a variety of substantial grounds. Moreover, it is

patently clear that the government saw fit to adduce the

testimony of Caracappa pertaining to Warme’s hearsay declara-

tion of the Miami drug deal (137a) directly on the heels of two

other related pieces of testimony relating to hearsay statements

by Warme that his heroin connection was ‘‘an old man and a

made man’ and that ‘‘the old man was hooked up with Fat

Tony Salerno and the old Pleasant Avenue people”’ (124a).

An examination of the segments of the record containing

the remarks of counsel after objections had been raised to both

the statement pertaining to Delli Paoli’s alleged involvement in

a Miami drug deal, as well as the statement suggesting that Delli

Paoli was ‘“‘connected’’ to Fat Tony Salerno, who has on many

occasions been portrayed in the press and by various law en-

forcement agencies as a high profile member of organized

crime, readily reveals the prosecutor’s purpose in adducing

those items of testimony. In fact, the prosecutor urged the court

to permit him to demonstrate that Delli Paoli was ‘‘connected,

he is heavy, he is a high level drug dealer’’ (128a), so that he

could later argue in summation that ‘‘in fact Mr. Delli Paoli is

connected, he is not an innocent person***’’ and that he was a

‘‘made man’’ (128a-130a).

When the District Court judge pointed out to the pro-

secutor that the name Fat Tony Salerno ‘‘sounds like somebody

in organized crime,’’ and underscored the highly prejudicial

nature of the remark, the prosecutor finally relented and agreed

not to refer to Fat Tony Salerno ‘‘anymore’”’ (130a-131a).

However, it is our view that irretrievable damage had already

been suffered by petitioner.

The District Court judge quickly repudiated the pro-

secutor’s attempt at persuading the court that his endeavor to

demonstrate to the jury that the defendants were connected to

organized crime was a legitimate line of inquiry, and the court

gave what it deemed to be an appropriate instruction to the jury

directing them to disregard the testimony pertaining to the

‘connection of one of the members of this alleged conspiracy

with certain other persons’’ (144a).

ae ee ee

me dectuaten aan th oce

Ae ee ace sno Hes a nn aya S it os wel Be

There is no longer any room for argument about the pro-

position that an attempt by a prosecutor to inject the spectre of

organized crime into a criminal prosecution for no legitimate

purpose constitutes reversible error [United States v. Love, 534

F.2d 87 (6th Cir. 1976)]. Moreover, because of the highly pre-

judicial nature of such evidence tending to associate a criminal

defendant with organized crime, which becomes indelibly etch-

ed upon the minds of the jurors and precludes them from fairly

judging the remainder of evidence presented, it has also been

held that the rendering of a cautionary instruction directing a

jury not to consider evidence that a defendant in a criminal case

is connected to organized crime will not necessarily serve to

remedy the irreparable harm so as to save the prosecution from

reversal just because such an instruction is given to the jury

[United States v. Love, supra at 89].

In the case at bar, the egregious conduct on the part of the

prosecutor certainly cannot be characterized as harmless. We

are not dealing with one isolated reference to the connection of

Delli Paoli to an organized crime figure, but to a concerted

endeavor by the government to portray Delli Paoli as a well con-

nected individual with high level connections in both the sphere

of organized crime as well as in the narcotics’ business.

While the judge did render a cautionary instruction relating

to the testimony that Delli Paoli was connected to Fat Tony

Salerno and the Pleasant Avenue people, he failed to recognize

that the other reference to the alleged drug deal in Miami,

Florida in and of itself served to prejudice the rights of the peti-

tioner in a very similar regard. Considered in tandem, the

references to Delli Paoli’s purported involvement with both

organized crime figures as well as unrelated narcotics’ transac-

tions along with the reference that he was a ‘*made man,”’ serv-

ed to permeate the record with undue prejudice which could not

possibly have been neutralized by the court’s instructions to the

jury to merely disregard the remark relating to Fat Tony Salerno

and the Pleasant Avenue people.

The jury was permitted to hear all of these prejudicial

statements from the mouth of the same witness during the

course of the very line of testimony designed by the government

to portray Orlando Delli Paoli as a well connected ‘‘made man’’

who had engaged in a major unrelated narcotics transaction in

Miami, Florida, and who was ‘‘hooked up’”’ with Fat Tony

Salerno, a reference which the court itself viewed as an effort by

the prosecutor to inject into the case the spectre of organized

crime. Quite apart from the obvious impact that the

prosecutor’s intentional injection of the organized crime spectre

must be deemed to have had upon the members of the jury, the

reversible dimension of the misconduct is further underscored

by the fact that the jury saw fit to return a verdict of not guilty

on Counts Five, Six, Seven and Eight of the indictment despite

the fact that the very same government witnesses whose

testimony was designed to support the first four counts of the

indictment also provided the testimonial foundation for the lat-

ter counts which resulted in acquittal.

In light, therefore, of the jury’s apparent willingness to

repudiate certain aspects of the testimony of the government’s

primary witnesses and to instead accept the conflicting

testimony adduced on behalf of the defendant, it is impossible

to conclude that the impression left by the prosecutor’s

endeavor to adduce the evidence portraying Delli Paoli as a well

connected individual in organized crime did not serve to pre-

judice the rights of the defendant to a fair trial, guaranteed to

him by the due process clause of the Fifth Amendment.

POINT THREE

THE DISTRICT COURT COMMITTED REVERSIBLE

ERROR BY REFUSING TO INVOKE APPROPRIATE

SANCTIONS SUCH AS THE STRIKING OF DIRECT

TESTIMONY OF VARIOUS GOVERNMENT

WITNESSES WHO CONCEDED THAT THEY HAD

INTENTIONALLY DESTROYED VARIOUS

REPORTS OF THEIR INVESTIGATIONS WHICH

MATERIAL, IN ALL RELEVANT INSTANCES, HAD

A SIGNIFICANT RELATIONSHIP TO THE SUB-

JECT MATTER OF DIRECT EXAMINATION.

During the course of the trial, it became clear that

numerous witnesses for the government had deliberately

destroyed handwritten reports pertaining to their investigation

of the relevant events which led up to the indictment in this case.

In all of the instances, the witness disclosed that the subject .

matter of his handwritten reports or notes, as the case may be,

was subsequently transformed into the actual typewritten

reports which were furnished to the defendants as ‘‘3500”’

material. Consequently, from the standpoint of relevance in

terms of possible usage for cross-examination during the course

of the trial, there is no dispute over the fact that all of the fac-

tual material which had been contained in the handwritten

reports or notes prepared by the agents constituted producible

material under Section 3500 of Title 18 of the United States

Code.

Before turning to an examination of the actual material

which was deliberately destroyed by the various governmental

witnesses, all of whom were law enforcement agents, it is

necessary to direct our attention to pronouncement in United

States v. Bufalino [576 F.2d 446 (2d Cir. 1978)], where the Se-

cond Circuit indicated that it would look with an ‘‘exceedingly

jaundiced eye’’ upon future efforts to justify non-production of

a Rule 16 or Jencks Act ‘‘statmeent’’ by reference to ‘‘depart-

mental policy’’ or ‘‘established practice’’ or ‘‘anything of the

like.’? The Bufalino court went on to indicate in no uncertain

terms that where, as in the case at bar, ‘‘destruction is

deliberate, sanctions will normally follow, irrespective of the

perpetrator’s motivation, unless the government can bear the

heavy burden of demonstrating that no prejudice resulted to the

defendant’’ [United States v. Bufalino, supra, at 449]. Finally,

Bufalino made the observation that inasmuch as courts are not

in a position to speculate whether such statements could have

been utilized effectively at trial, the harmless error doctrine

must be strictly applied in such cases involving deliberate

destruction [ibid., at 449]. Bufalino was the aftermath of several

earlier decisions by the Second Circuit in which law enforcement

agencies were admonished that they should ‘‘retain the hand-

written notes until the prosecution is terminated’’ [United States

v. Mase, 556 F.2d 671, 676 (2d Cir. 1977)]. Despite these warn-

ings, the agents in this case proceeded to destroy their notes.

Even the most cursory analysis of the manner in which

every government witness who took notes in this case saw fit to

deliberately destroy their handwritten reports in the prosecution

at bar, will readily underscore that the imposition of ap-

propriate sanctions by the District Court, in accordance with

Bufalino, which decision of the Court of Appeals was pointed

out to the District Court at the time that the destruction of the

material became obvious during the examination of the

witnesses, was wrongfully repudiated by the District Court and

the Second Circuit on the ground that Bufalino was filed after

the investigation in this case was completed.

Turning to the relevant testimony of Detective Caracappa

on the subject of the deliberate destruction of his handwritten

notes, it appears that this witness had prepared 24 separate

reports pertaining to his activities during the course of the 3

month investigation leading up to the indictment of the defen-

dant herein (396a). In that connection, 25 separate typewritten

reports were furnished to counsel for the defendant, which

reports were numbered 3501A to 3501Y, and which were deem-

ed by the government to constitute 3500 material (396a).

Caracappa indicated that he did not himself type any of the

3500 reports which actually were turned over to counsel for the

defendant, but had instead handwritten all of those 25 reports

on yellow note paper, either on the day of the occurrence or the

next day (397a), which handwritten reports were eventually

turned over to a typist in order to be committed to a typewritten

report, which typewritten reports were submitted to the defen-

dants asa 3500 material (397a).

As further made clear by Detective Caracappa’s testimony,

these reports not only contained his relevant observations dur-

ing the course of the investigation, but also reflected conversa-

tions he had engaged in with the defendants who were brought

to trial (40la-409a). Caracappa indicated that after he had

received the typed copy which eventually became the 3500

material furnished to defense counsel, he destroyed his hand-

written reports which had been given to the typist (409a).

Inasmuch as Detective Caracappa was the most significant

witness to give testimony in the case against the defendant, and

his handwritten reports reflected the entire investigation, in-

cluding the statements allegedly made by the defendant Delli

Paoli without which there was no possible way that the prosecu-

tion could have spelled out a prima facie case, it does not seem

conceivable that the government can even begin to bear their ex-

tremely heavy burden of demonstrating that no prejudice could

have resulted to Delli Paoli as a result of the non-availability of

all of Caracappa’s 25 separate and distinct handwritten reports

of his investigation in this case.

Another important witness who also admitted he had

destroyed certain handwritten notes he had made of his

surveillance of the defendant Delli Paoli was Agent John

Mullen, who provided some rather significant surveillance

testimony pertaining to the crucial events which took place on

March 27, 1978, the date upon which $20,000 was allegedly

given to co-defendant Warme by Detectives Caracappa and

Petraglia.

Mullen testified that on March 27, 1978 he was conducting

a surveillance of the respective defendants in the case at bar in

the vicinity of the Andrea Motel, where many of the more

significant events pertaining to the trial took place (470a). It was

Agent Mullen’s testimony that he had made handwritten notes

contemporaneously with his observations on March 27, 1978

pertaining to the events which he had observed while on duty in

connection with the investigation (472a-475a). Mullen also con-

ceded that it was not until two weeks after having made the

obsevations that he utilized those notes to prepare the 3500

report which eventually was turned over to the defendant and

which pertained to his observations on March 27, 1978, making

the significant admission in that regard during a voir dire ex-

amination that the 3500 report pertaining to that day’s observa-

tion ‘‘depended exclusively and wholly upon the notations that

[Mullen] had in [his] possession at the time [he] prepared the

report”’ (476a). Finally, Mullen conceded that it would have

been extremely difficult to ever have prepared the 3500 report

which had been typewritten from his notes if he did not have ac-

cess to the notes which he eventually destroyed (477a).

The nature of the testimony given by Detective Mullen

underscores the tremendous prejudice which flowed towards the

petitioner Delli Paoli as a result of the destruction of the notes

without which Mullen could not possibly have prepared his final

typewritten 3500 reports. In that connection, it is important to

bear in mind that in acquitting Delli Paoli of Counts Six, Seven

Ee. ee

SRE

and Eight, the jury seemingly refused to credit any of the

testimony given by Detectives Caracappa and Petraglia as to

those substantive narcotics counts against Delli Paoli, but

nevertheless convicted Delli Paoli of the conspiracy count of the

indictment, the proof of which also relied in significant part

upon certain testimony given by Detectives Caracappa and

Petraglia.

The reason for this seems somewhat clear, inasmuch as the

prosecutor himself during his summation, sought to have the

jury accept the testimony of Detectives Caracappa and Petraglia

against Delli Paoli by indicating that in certain regards that

testimony was corroborated by the observations made by

surveillance agents (722a-730a). In that regard, the prosecutor

asked the jury to believe that Caracappa and Petraglia in fact

met with Delli Paoli at the Andrea Motel on March 27, 1978 at

or about 11:00 p.m. of that evening despite the contrary

testimony of defendants Delli Paoli, Diane Warme, as well as

defense witness Fiorentino, that no such meeting ever took

place, but that quite to the contrary, the only meeting between

those parties at the Andrea Motel was much earlier in the after-

noon of March 27, 1978 at about 5:30 (590a-595a, 673a,

714a-718a).

Inasmuch as it is clear that the jury repudiated the

testimony of Detectives Caracappa and Petraglia pertaining to

the substantive counts against Delli Paoli, in connection with

which there was no testimony by any surveillance agents which

would tend to corroborate the testimony given by Caracappa

and Petraglia, it is reasonable to conclude that the cor-

roborating surveillance testimony of Agent Mullen as to the

events of March 27, 1978 played a significant role in persuading

the jury to convict Delli Paoli of conspiracy predicated upon

Caracappa’s version of the events of March 27 which provided

the most damaging evidence against appellant Delli Paoli.

If the jury had believed the testimony of Delli Paoli and

Diane Warme that they had met with agents Caracappa and

Petralgia at the Andrea Motel at about 5:30 p.m., which was a

relatively short time after Caracappa had given the $20,000 to

Richard Warme, the testimony related by Caracappa about

Delli Paoli having dealt with Sam Shafano in order to purchase

$20,000 worth of heroin would have been irreparably undercut.

Only through the device of telling the jury that Delli Paoli had

some six hours, between about 5:00 p.m. until 11:00 p.m. on

March 27, 1978, within which to allegedly engage in his con-

voluted dealings with Shafano which, according to Caracappa,

involved the passage of $20,000, the subsequent non-

appearance of Shafano, and the search for his whereabouts, was

the prosecution able to present a palatab'e factual picture regar-

ding Delli Paoli’s involvement in the most crucial segment of the

prosecution against him.

The notes which were deliberately destroyed by Agent

Mullen pertaining to his observations made on March 27, 1978,

which notes were made contemporaneously with the observa-

tions, at a time prior to Mullen having any opportunity to con-

sult with any of the other members of the team conducting this

investigation, including Caracappa and Petraglia, were

destroyed, thus depriving the defense of the opportunity to

utilize them in connection with the cross-examination of Mullen

as to the crucial issue of what time the meeting between Delli

Paoli and the agents at the Andrea Motel took place on March

27, 1978. That deprivation alone constituted enormous pre-

judice and, of course, stands in the way of the government sus-

taining their burden of demonstrating that the deliberate

destruction by Mullen of his notes did not prejudice Delli Paoli.

In light of the fact that Delli Paoli was acquitted of the

substantive narcotics counts in the indictment, it seems fair to

conclude that the testimony given by Agent Mullen as to his

observations of Delli Paoli on the day in question, namely

sane ie

March 27, 1978, played a very large role in persuading the jurors

to convict Delli Paoli of the crime of conspiracy. Inasmuch as

counsel for Delli Paoli was deprived of an opportunity to mean-

ingfully examine Agent Mullen in order to determine whether

his testimony as to his relevant observations of Delli Paoli on

March 27, 1978 was accurate and truthful, there seems little

question but that the government cannot possibly demonstrate

to this court that Delli Paoli was not prejudiced by the destruc-

tion by Agent Mullen of his notes.

It has been well settled for some time now that ‘‘notes and

reports of agents of the government, made in the course of a

criminal investigation, are the proper subject of inquiry and

subject to production under the Jencks Act’’ [Lewis v. United

States, 340 F.2d 678, 682 (8th Cir. 1965) and cases cited

therein]. Indeed, in the recent case of Goldberg v. United States

[425 U.S. 94, 109-111 (1976)], the Supreme Court of the United

States had occasion to observe that the government itself had

conceded in that case that the handwritten statements of a

government witness represent ‘‘statements’’ pursuant to 18

U.S.C. §3500(e)(1). It seems clear to us that all of the various

reports by Caracappa, as well as the contemporaneous notes of

surveillance agents which had been deliberately destroyed by the

government witnesses in this case clearly constitute

‘“statements’? within the purview of the aforementioned seg-

ment of section 3500 and, in the case of those segments of

Caracappa’s report containing statements made by defendants,

also constituted discoverable Rule 16 material.

Turning to the question of whether sanctions should be im-

posed, we note that an application was made on behalf of all the

defenants to strike the direct testimony of each witness who

destroyed his notes (409a, 459a, 474a).* At the very least, the

deliberate destruction of the material mandates ‘‘the exclusion

or suppression of other evidence concerning the subject matter

of the undisclosed material’ or, in the context of this case, since

*The court had permitted any of the defense lawyers to make an objection on

behalf of all defendants to whom the objection was applicable

(648a. 1-648a.2).

all of the important government witnesses destroyed their notes,

the indictment should be dismissed [United States v. Miranda,

526 F.2d 1319, 1324, n. 4 (2d Cir. 1975)].

POINT FOUR

WHILE THE INDICTMENT CHARGED ONE NAR-

COTICS CONSPIRACY, THE PROOF ESTABLISHED

MULTIPLE NARCOTICS’ CONSPIRACIES. THIS

VARIANCE BETWEEN INDICTMENT AND PROOF

FATALLY PREJUDICED SUBSTANTIAL RIGHTS OF

PETITIONER DELLI PAOLI.

In the trial of this indictment, the District Court Judge

himself manifested a substantial concern about whether the

government’s proof had established several conspiracies, in

violation of the relevant precedents of this court. Indeed, at the

time of sentencing, the court stated that ‘‘there is a substantial

issue about the possibility of a double conspiracy in there, and

we discussed it at great length during the trial’’ (816a. 1). Turn-

ing to the relevant law on the subject of multiple conspiracies, it

is clear that whenever a conviction has ‘‘been obtained on the

theory that all defendants were members of a single conspiracy

although, in fact, the proof discloses multiple conspiracies, the

error of variance has been committed’’ [United States v. Ber-

tolotti, 529 F.2d 149 (2d Cir. 1975), citing Berger v. United

States, 295 U.S. 78 (1935); Kotteakos v. United States, 328 U.S.

750(1946)]. In analyzing the multiple conspiracy argument rais-

ed in Bertolotti, the Court of Appeals took note of the fact that

the Second Circuit had gone to substantial lengths in finding

single conspiracies in narcotics cases. Judge Van Graafeiland,

writing for the court, went on to note that “(T]he common

thread running through these cases is treatment of them as

general, albeit illegal business ventures. United States v. Mallah,

503 F.2d 971 (2d Cir. 1974) supra, at 976.’’ [United States v.

Bertolotti, supra at 154-155]. As in many cases decided on this

point it seems clear that in the indictment at bar, the govern-

ment ‘‘has merely merged several conspiracies for the sake of

convenience’? [United States v. Bertolotti, supra at 155, and

cases cited therein]. Careful analysis of the evidence in the trial

below demonstrates beyond question that the several narcotics

transactions centering around Richard Warme ‘‘could hardly be

attributed to any real organization, even a ‘loose-knit’ one’

[Ibid., citing United States v. Miley, 513 F.2d 1191, 1206-1207

(2d Cir. 1975)j. Just as in Bertolotti and Miley, there was no

evidence whatsoever in the case at bar to show that Warme and

his respective co-conspirators in the various narcotics transac-

tions alleged in the indictment ‘‘were conducting what could

seriously be called a regular business on a steady basis’” [Id.}.

The only common denominator in all of the several conspiracies

demonstrated at trial was that defendant Richard Warme was

seeking to obtain narcotics sources who could sell drugs to

Detective Caracappa and Petraglia, which various sources were

named by the government as co-conspirators. However, it 1s

clear that the one separate conspiracy between Richard Warme

and defendants Isaza and Petrucha, embodying Counts Three

and Four of the indictment and relating to narcotics transac-

tions which transpired on March 2 and March 9, 1978, were

totally unrelated to the alleged transaction embodied in the

substantive counts found in Counts Six, Seven and Eight of the

indictment relating to alleged drug transactions which took

place on March 29, March 30 and March 31 of 1978.

And while the government had seen fit to charge Wayne

Petrucha and Victor Isaza in Count Six of the indictment with

the substantive crime involving the narcotic drug of cocaine, not

only is there no evidence whatsoever in the record at trial which

would tend to support any conspiracy between Warme, Delli

Paoli, Isaza and Petrucha regarding the events of March 29th,

but quite beyond that, on the basis of the testimony adduced by

the government it is clear that on March 29th Warme ripped

Petrucha and Isaza off for the cocaine (36la, 379a, 384a,

391a-394a) involved in the substantive count relating to the

alleged transaction of March 29, 1978.

The impact of the proof at trial of multiple conspiracies,

one between Warme, Isaza and Petrucha, another between

Warme and Delli Paoli and still another between Bolella and

Warme, relating to Count Two, requires that this court take

special cognizance of the fact that none of the defendants were

convicted of any of the substantive narcotics counts embodied

by Counts Six, Seven and Eight of the indictment. As a conse-

quence, petitioner Delli Paoli was only convicted of the con-

spiracy charge found in Count One of the indictment. Since the

acquittals of Delli Paoli on all of the substantive counts very

strongly suggests a rejection by the jurors of the pertinent

testimony given by Caracappa and Petraglia relating to the

alleged conversations between Delli Paoli and the undercover

officers, and since there was no evidence whatsoever that Delli

Paoli had transferred any narcotic drugs to any individual in-

volved with this case, it is impossible for ‘the government to

demonstrate to this court that Delli Paoli was not seriously pre-

judiced by the proof of the other conspiracy between Warme,

Isaza and Petrucha during the course of which drugs were

transferred to the undercover agents and which incidents

resulted in convictions on the substantive counts involving those

individuals. This is especially so in light of the hearsay evidence

by Victor Isaza to Caracappa, that Isaza and Petrucha would

get Caracappa a source for heroin (115a), a hearsay declaration

which may well have seriously prejudiced Delli Paoli, who was

later characterized by Warme as his heroin source [United States

v. Miley, supra, at 1208].

Since it is clear that a variance was demonstrated between

the indictment and the evidence, multiple conspiracies having

been proven, the inquiry must proceed to one of whether the

variance is material—that is, whether it affected the substantial

rights of Delli Paoli [Berger v. United States, 295 U.S. 78, 82

(1935); United States v. Agueci, 310 F.2d 817 (2d Cir. 1962);

United States v. Miley, supra).

In United States v. Berger, 73 F.2d 278, 280 (2d Cir. 1934)

rev'd on other gds., 295 U.S. 78 (1935), the court discussed the

way in which substantial rights could be sufficiently affected in

order to make the variance material and thus require reversal.

More specifically, the court wrote in Berger that the variance is

materiai where surprise hampers the presentation of the defense

or where, as in the case at bar, ‘‘It will allow the production of

evidence not competent or material to the crime he [the defen-

dant] had committed.”’ Here, all of the evidence involving the

transactions which were consummated between Warme,

Petrucha and Isaza and which relevant testimony was credited

by the jury which convicted on substantive Counts Three and

Four were all placed before the jury for their consideration. In

United States v. Miley, supra, the court cited Berger v. United

States, supra, for the proposition that where multiple con-

spiracies were proved, the true inquiry becomes whether —

substantial rights of the accused were affected [see also United

States v. Bertolotti, supra at 155-158}.

In the instant case, the jury was charged that even if more

than one conspiracy was proved the defendants could never-

theless be convicted, providing the jury concluded that the

single conspiracy charged in the indictment was proved (763a).

Under this charge, the jury was permitted to view all the

evidence including, of course, the drug transactions between

Warme, Isaza and Petrucha, and the hearsay utterances by

Isaza that he and Petrucha would obtain a heroin source for

Caracappa.

{n light of the verdict, it is fair to say that the ample proof

of the other conspiracies were, therefore, attributable to Delli

Paoli and he was convicted. It seems dangerous to speculate as

to the basis of a jury verdict under any circumstances. Here,

where the verdict is a general one and the charge is conspiracy,

involving several co-defendants, such a practice should be

employed only with extreme caution [cf. United States v.

Rosner, 516 F.2d 269, 275 (2d Cir. 1975) cert. den. 427 U.S. 911

(1976)].

An alternative mode for determining the prejudicial impact

of the variance is by analyzing the spill-over effect which may be

found in joint trials [United States v. Bertolotti, supra, at 156}.

Here, the trial lasted nearly three weeks. In terms of the ac-

tivities testified to, while the alleged conspiracy spanned three

months, from January, 1978, through the end of March, 1978,

the non-hearsay evidence against Delli Paoli related to three

meetings between Delli Paoli and the undercover agents on

March 27 and March 28, 1978.

The trial here involved three other defendants as to whom

proof was adduced that narcotics was actually delivered to the

undercover agents in stark contrast to Delli Paoli’s situation,

and was a case where ‘“‘[t]he dangers of transference of guilt

from one to another across the line separating conspiracies, sub-

conscious or otherwise, are so great that no one can really say

prejudice to a substantial right has not taken place.’’ [Kotteakos

v. United States, 328 U.S. 750, 774 (1946)].

Under the circumstances reversal is mandated and a new

trial is required.

Before concluding, however, we deem it appropriate to ad-

dress some additional observations to a closely related matter.

After jury selection but prior to the government’s opening state-

ment, counsel for appellant alerted the trial court to the fact

that Delli Paoli was entitled to a severance on the ground of mis-

joinder and addressed the fact that the instant indictment im-

properly joined multiple unrelated conspiracies (51a-52a).

The court’s refusal throughout the trial to grant a

severance grounded upon the misjoinder of the multiple con-

spiracy count, viewed in light of the prejudice to the petitioner

created by the joinder herein, as already discussed in detaill

above, warrants reversal as a matter of law [cf. United States v.

Miley, supra at 1209-1210).

As aptly observed by Judge Friendly in Miley, wherein, it

must be recalled, all of the appellants had been charged in the

very same conspiracy count:

‘Absent the conspiracy count, we doubt that the joinder

requirement of Fed. R. Crim. P. 8(b) could be met, since

not all the appellants were otherwise ‘alleged to have par-

ticipated in the same act or transaction or in the same series

of acts or transactions constituting an offense or offenses

(Emphasis supplied)”’. [Supra at 1209; see also the cases

and authorities cited therein.]

The court in Miley went on to ntoe that since the joinder

therein was technically proper because of the existence of the

conspiracy count and since there was insufficient prejudice to

make the variance fatal, the denial of severance was not deemed

a basis for reversal. However, in the case at bar, the manifest

prejudice to Delli Paoli requires ar eversal because of the court’s

refusal to grant a severance.

In that connection, the Miley court issued the following ad-

monition:

‘‘Accordingly, since we have been unable to discern any

prejudice from the joinder, we are unwilling to reverse

because of denial of the motions for severance, as we sure-

ly would under the circumstances of this case if any pre-

judice had been shown. We trust that heed by prosecutors

in this circuit to our observations in United States v. Sperl-

ing, supra, 506 F.2d at 1340-41, will prevent such vexing

problems from arising in the future.’’ [United States v.

Miley, supra at 1210).

The strong admonition contained in Miley, which was

decided by the court well before the commencement of Delli

Paoli’s trial, must be adhered to, with the result that his convic-

tion should be reversed.

POINT FIVE

THE DISTRICT COURT ERRONEOUSLY FAILED TO

SUA SPONTE CONDUCT AN EVIDENTIARY HEAR-

ING IN ORDER TO DETERMINE WHETHER A RIFT.

WHICH HAD DEVELOPED BETWEEN PETITIONER

DELLI PAOLI AND HIS ATTORNEY PRECLUDED

TRIAL COUNSEL FROM PROVIDING EFFECTIVE

ASSISTANCE TO HIS CLIENT.

On the very morning of August 2, 1978, the day Delli Paoli

was slated to take the stand to give testimony in his own behalf,

the following colloquy took place:

‘“‘MR. GREENBERG: Your Honor, I think Mr. Delli

Paoli has something he wants to say to the court.

‘‘DEFENDANT DELLI PAOLI: I don’t know what

to say. He doesn’t want to represent me, unless I give him

the balance of h is money today, this minute. How am I

going to do that? After the day is over, I said my son is try-

ing to make arrangements. He said he doesn’t want to

know anything, he threatened me.

‘*I don’t know what to do, your Honor. I told him to

wait until tonight. My family is trying to make ar-

rangements to get some initial funds that he has coming to

him, and that is all I can say, your Honor.

‘‘MR. GREENBERG: I have no comment to make,

your Honor.

‘*THE COURT: I have nothing to rule on. Do you

have an application, Mr. Sear [the prosecutor]?’’

(642a-643a).

It is the position of petitioner that the District Court judge

failed to recognize his obligation to undertake an inquiry as to

whether the allegation made by Delli Paoli that his attorney had

threatened him in a dispute over the payment of the balance of

his legal fee and, in that connection, to have conducted a fur-

ther inquiry into the question of whether, presuming the state-

ment of Delli Paoli to have been accurate, his trial counsel was

thereby precluded from rendering effective assistance to Delli

Paoli during the crucial remaining portions of the trial. Needless

to say, the allegation made by Delli Paoli that his attorney had

threatened him over the subject of the payment of his fee and

had indicated to Delli Paoli that he no longer wished to repre-

sent him, constituted a very serious charge which should have

instantaneously inspired the court to conduct a far more exten-

sive inquiry than it chose to do in the circumstances.

Even if the court held the view that at the time that the

allegation was made by Delli Paoli his counsel had been ade-

quately representing Delli Paoli’s interest, the court still would

have been obliged in light of the remarks by Delli Paoli to have

conducted an evidentiary hearing in order to determine whether

the dispute between lawyer and client over the subject of the fee

arrangements in and of itself created the potential for the denial

to Delli Paoli of the effective assistance of counsel guaranteed

to him by the Sixth Amendment [Cross v. United States, 392

F.2d 360, 366-367 (8th Cir. 1968)].

In the Cross case, the 8th Circuit Court of Appeals noted

that ‘‘the trial was certainly not a sham or a mockery of justice

and in fact was probably, as Judge Young noted, the best tried

criminal case of that term [Cross v. United States, supra, at

367]. Nevertheless, the Cross court determined that an eviden-

tiary hearing was necessary to evaluate the question of whether

the dispute which had arisen over the payment of the attorney’s

fee served to deny his client the assistance of counsel, indicating,

in that regard, that while the court sympathized with the at-

torney’s desire to collect his fee, ‘‘his lack of success in this

respect is no reason for his pique disrupting the judicial

process’’ [Cross v. United States, supra, at 367].

Of course, in the event that this court agrees with petitioner

that there are numerous other grounds which have been set

forth in the other points of this petition and of themselves re-

quire a reversal of the judgment of conviction, it will not be

necessary to inquire any further into the question presented in

this point regarding the court’s obligation to have inquired fur-

ther on the matter of the effective assistance of counsel. If it

does become necessary for this court to review the arguments

contained in this point, it is ncessary that several potential items

of evidence to be adduced upon remand be underscored for this

court’s consideration. We feel it appropriate to make the

following observations, by way of an offer of proof, in light of

the unique nature of this case.

To begin with, this firm has been informed by petitioner

Delli Paoli that in the midst of the dispute over the payment of

fees, which occurred shortly before the colloquy quoted above,

the lawyer indicated that if the balafce of his fee was not paid

immediately he would merely have to ask ‘‘one question’’ of the

petitioner during his trial testimony scheduled for that day, with

the result that he would spend ‘‘the rest of your life in jail.’’* ~ :

In that connection, this firm has been apprised by another

attorney who participated in the trial in the District Court, that

if he were called to give testimony at an evidentiary hearing, he

would be in a position to confirm the foregoing statement made

to Delli Paoli by his attorney.

It should also be pointed out that an occurrence which took

place during the direct examination of petitioner Delli Paoli lat-

ter that day should have further underscored the obligation con-

fronting the court to have conducted an evidentiary hearing into

the question of the effective assistance of counsel. More

specifically, counsel for Delli Paoli saw fit to offer into evidence

an address book which had been seized from Delli Paoli at the

time of his arrest which contained certain information which

*Mr. Delli Paoli’s affidavit detailing this incident will be made available to this

court upon request.

later proved helpful to the prosecution. At the time that the

book was first offered into evidence, the prosecutor objected to

its admission, but after counsel for the other defendants

vehemently objected to its introduction on the grounds that it

would serve to prejudice their clients, Mr. Delli Paoli’s attorney

withdrew the offer of the telephone book and the prosecutor,

who had been alerted to the helpful nature of the information to

the government’s case, indicated that he would offer it himself

upon the government’s case (680a-686a), which, of course, he

did.

Moreover, on January 12, 1979, the District Court judge

granted an application made by Laurence Jeffrey Weingard,

Delli Paoli’s appellate counsel, for post-verdict discovery of a

sealed affidavit submitted by petitioner’s trial counsel as Court

Exhibit 4 on July 31, 1978 (19sa).* 7

It is our view that the statements contained in trial

counsel’s affidavit, dated July 31, 1978, which perpetuated the

divulgence to the prosecutor and court of a confidential com-

munication made by Delli Paoli to his lawyer, are of con-

siderable relevance in connection with the occurrence which

took place on August 2, 1978. As indicated in the sealed af-

fidavit, the confidential communication was made by Delli

Paoli to his trial attorney on July 26, 1978, and the substance of

the communication directly related to the trial then in progress.

The affidavit further reveals that at the close of business on that

date, trial counsel saw fit to divulge the confidential com-

munication, in camera, to both the prosecutor and the trial

judge.

In this regard, it is our purpose to point up to this court

that the occurrence of July 26, 1978, which was later embodied

*The affidavit was submitted to the Second Circuit, under seal, as Exhibit B to

motion papers dated January |, 1979, seeking leave of the Court to file a sup-

plemental brief. References prefixed by sa are to pages of a supplemenial ap-

pendix filed with the Court of Appeals.

in the affidavit of July 31, 1978, was most assuredly quite fresh

in the District Juge’s mind when Delli Paoli sought the court’s

assistance on August 2, 1978 because of threats which had been

made by trial counsel. While it is our view that the statements

made by Delli Paoli on August 2, 1978, in and of themselves

obligated the District Court judge to sua sponte initiate an in-

quiry as to whether the difficulties regarding the fee which had

created a rift between attorney and client was precluding the ef-

fective assistance of counsel, the manifest need for such an

evidentiary hearing was certainly further underscored by the

events of July 26, 1978. ;

The affidavit submitted by trial counsel on July 31, 1978 is

indicative of the fact that the breakdown in communications

which clearly surfaced on August 2, 1978 had actually first

become evident several days prior to August 2, 1978, and that

the District Court judge had been made aware of some dif-

ficulties regarding the lawyer-client relationship as early as July

26, 1978.

The affidavit clearly indicates that on July 26, 1978, Delli

Paoli’s trial counsel divulged to the prosecutor and court the

substance of a confidential communication made to him by his

client during the midst of a criminal trial to which the confiden-

tial communication directly related. In so doing, trial counsel

breached one of the most fundamental obligations owed by a

lawyer to his client.

While this firm is sensitive to the need to further elaborate

upon the manner in which the contents of the affidavit dated

July 31, 1978 should have further underscored to the District

Court judge that he had a responsibility to conduct an eviden-

tiary hearing as to whether the difficulties being experienced by

trial counsel in collecting his fee had created the type of rift

which precluded effective assistance of counsel, we are likewise

not unmindful of the fact that the confidential nature of the

‘

statmeents contained in that affidavit precludes a more in-depth

type of argumentation.

It is essential, however, that we request that this court bear

in mind the significant facts that the District Court judge had

participated in an in camera conference on July 26, 1978 at

which time the confidential communication contained in the Ju-

ly 31, 1978 affidavit was first brought to his attention.

Moreover, when the affidavit was actually submitted to him on

July 31, 1978, the District Court judge was again alerted to the

fact that Delli Paoli’s trial attorney had seen fit to breach his du-

ty to preserve the confidences conveyed to him by Delli Paoli.

As a consequence, when on August 2, 1978, a few short days

thereafer, Delli Paoli pointed out to the court that his lawyer

had threatened him, the events of the preceding week relating to

the facts asserted in the affidavit of July 31, 1978 which pertain-

ed to the confidential communication divulged on July 26, 1978,

should have played a significant role in the judge’s evaluation of

the remarks made by Delli Paoli.

It is our view that based upon the court’s knowledge that

trial counsel had divulged the confidential communication dur-

ing the in camera conference of July 26, 1978—to which

divulgence he should have been acutely sensitive when Delli

Paoli informed him on August 2, 1978 that he had been

threatened by his lawyer—the court’s relevant responsibilities as

to whether an evidentiary inquiry should have been conducted,

should have been dramatically influenced by what was then

fresh in his mind regarding the situation contained in trial

counsel’s affidavit dated July 31, 1978.

In conclusion, it is submitted that on the basis of the

arguments herein, in conjunction with the contents of the af-

fidavit sealed on July 31, 1978 as Court Exhibit 4, the District

Court judge committed reversible error in not taking it upon

himself to conduct a sua sponte evidentiary inquiry on August

2, 1978 as to whether the threats brought to his attention at that

time by Delli Paoli had created a situation which made it im-

possible for his trial lawyer to provide effective assistance to

petitioner.

POINT SIX

THE DISTRICT COURT WAS IN ERROR WHEN IT

DECLINED TO GRANT PETITIONER’S POST-

VERDICT DISCOVERY APPLICATION, SINCE THE

ITEMS SOUGHT HAD BEEN RECEIVED, BY THE

COURT IN CAMERA, DURING DEFENDANTS

TRIAL AND THE INFORMATION CONTAINED IN

THE MATERIALS IS RELEVANT TO A LEGITIMATE

OBJECT OF THE DEFENDANTS’ INQUIRY.

Prior to the commencement of trial, counsel for co-

defendant Warme issued a subpoena for the personnel records

of Detectives Caracappa and Petraglia, the Government’s prin-

cipal witnesses. After an extended colloquy on that subject

(23a-36a), the court suggested that the Assistant United States

Attorney should peruse the relevant material to see whether

there was any ‘‘Brady or 3500 materials in there’’ (37a). While

counsel objected to the procedure which would permit an ad-

vocate for the government to preliminarily peruse the materials

in question (39a), it appears from the record that such pro-

cedure was employed upon the basis that the prosecutor was

directed to transmit to the court anything that was even remote-

ly relevant so that the court could thereupon conduct its own

review (39a).

Thereafter, the court indicated that he had reviewed the

relevant files and had found nothing resembling 3500 material

therein (47a). However, the court indicated that there indeed

was ‘‘Brady’’ material within one of the files which related to

one of the police witnesses, which officer the court did not iden-

tify, and which concerned a period of time preceding his police

employment. The pertinent information, according to the

court, appeared in his application to the Police Department

(47a-48a). In that connection, the court viewed the so-called

Brady material to be privileged and thus inadmissible on two

unspecified separate grounds. In light of the foregoing, the

government’s motion to quash the subpoena was granted by the

court (48a), and the materials referred to by the trial judge were

extracted and sealed to make them a part of the record for pur-

poses of appellate review (48a; see Court’s Exhibit 2). This, of

course, was over the objection of counsel for all defendants,

which objections were based upon the grounds that suppression

of the information would violate defendant’s right to confront

and cross-examine the witnesses against them.

Thereafter, prior to the opening statement of the prose-

cutor, a further application was made by counsel for Warme

seeking additional 3500 material in the form of Detective

Caracappa’s reports, as well as his Grand Jury testimony per-

taining to amphetamine conspiracy and distribution charges (In-

dictment No. 78 Cr. 263) then pending against Warme;* which

charges arose out of transactions with Caracappa. In that

regard, the court indicated that it would review the relevant por-

tions of the Grand Jury transcript relating to the amphgetamine

charges, as well as certain reports pertaining thereto (46.9a).

Thereafter, the court indicated that he was not going to release

certain portions of the Grand Jury transcript or the relevant

reports pertaining to the amphetamine transactions and marked

them as part of Court Exhibit 2 (49a-50a), which, as indicated,

had been sealed (see also 12sa-14sa).

During the course of the ensuing trial, Detectives

Caracappa and Petraglia testified extensively, and gave ex-

tremely damaging testimony against each of the defendants.

*This indictment was dismissed on the motion of the government following

Warme’s conviction herein.

Following the jury’s verdict and defenants’ sentencing,

counsel for Warme and Delli Paoli, by notice of motion return-

able January 12, 1979 moved, pursuant to Rule 33 of the

Federal Rules of Criminal Procedure for post-verdict discovery

of a variety of items which were submitted to the trial court, in

camera (30sa et seq.).

Following oral argument, the District Court denied the

petitioner’s requests for access to the so-called ‘*Brady”’

material contained in the police personnel files and further

refused access to Caracappa’s Grand Jury testimony and his

reports relating to the amphetamine charges; this, despite the

fact that the court was apprised of the dismissal of Warme’s

related indictment (78 Cr. 263) (23sa-29sa).

From a purely procedural standpoint, it seems well settled

that a defendant contemplating an application pursuant to Rule

33 for a new trial has the right to apply to the trial court for a

discovery order seeking disclosure of materials which relate to in

camera proceedings which occurred during the course of his

criminal trial; this, despite any express authority contained in

Rule 33 for such disclosure [see, United States v. Moten, 582

F.2d 654, 660 (2d Cir. 1978)]; Moore’s Federal Practice,

paragraph 33.03((3}}.

In a recent holding granting post-verdict disclosure pur-

suant to Rule 33 of the Federal Rules of Criminal Procedure of

a variety of in camera materials which related to incidents which

occurred during the course of the defendants’ trial, the Second

Circuit had occasion to reaffirm its prior holdings indicating

that there is a presumption against the use of in camera pro-

ceedings and that they may only be permitted and justified by

compelling state interests [Jbid. at 661; In Re Grand Jury Sub-

poena Directing Taylor to Appear and Testify, 567 F.2d 1183,

1188 (2d Cir. 1977)]. The court went on to note in Moten that

every defendant has a valid interest in knowing precisely what

i RS a St

PO ae i Ne ~

occurred during the course of his trial and indicated further that

“*[t]he interests of a defendant in obtaining disclosure is ade-

quately established when it appears that (1) the in camera pro-

ceedings occurred during his trial and (2) the inforamtion con-

tained in the materials is relevant to a legitimate object of his in-

quiry.’’ [United States v. Moten, supra at 661]. In other words,

all a defendant need do is demonstrate that in camera pro-

ceedings occurred during his trjal and that the information con-

tained therein is relevant to some legitimate object of his inquiry

and he is entitled to disclosure unless the government sustains it

burden of proving sufficiently compelling state interests requir-

ing continued secrecy [/bid. at 660-662]. Additionally, ‘‘{i]f the

materials are relevant, the District Judge’s estimation of their

lack of helpfulness does not justify withholding them from the

defense.’’ [/d. at 662]. Applying the Moten standards to the

District Court’s denial of post-verdict discovery, it is plain to see

that the petitioner had met his preliminary obligation of

demonstrating that the in camera incidents (the personnel files

subpoenaed relating to the undercover agents and the Grand

Jury testimony and reports of Detective Caracappa bearing

upon his dealings with Warme) occurred during the petitioner’s

trial and, the information contained in the materials were rele-

vant to a legitimate object of the petitioner’s inquiries (poten-

tially crucial impeachment material relating to the undercover

agents upon whose testimony the government’s case rested).

With respect to Detctive Caracappa’s Grand Jury

testimony bearing upon the closely related and now dismissed

amphetamine charges, we recognize that the Moten court an-

alyzed those cases suggesting that in that circuit the burden is

on the party seeking disclosure to show a ‘‘particularized need’’

that outweighs the need for secrecy generally attaching to Grand

Jury proceedings and concluded that there was no need in

Moten to reexamine that particular doctrine [/d. at 662]. It

should be pointed out that the petitioner herein was indeed able

to demonstrate a ‘‘particularized need’’ which outweighed the

need for continued Grand Jury secrecy. In that regard, and as

pointed out in the affidavit of Jeffrey Weingard which was an-

nexed to the Notice of Motion seeking post-verdict discovery

below, it is significant to recall that the jury in this case refused

to credit a substantial portion of the testimony of the under-

cover agents as that testimony related to various incidents bear-

ing upon the defendants’ claim of coercion. Each of the defen-

dants was acquitted of all charges which related to that defense.

It must be noted, therefore, that this case was indeed a truly

close one with respect to the question of the credibility of the

government’s main witnesses. Had the additional material

sought by the defense at trial been made available at that time, it

might well have proved significant in cross-examination and, to

that end, could well have shifted the balance on the issue of

credibility in favor of the petitioner who presently stands con-

victed upon the testimony of these detectives.

Additionally, Moten appears to have been concerned with

whether the Grand Jury investigation which was central to the

theme of that case remained active [Jd. at 662]. By analogy, it

should have been of significance to the District Court that the

criminal proceeding to which the Grand Jury testimony

withheld from the defense related [78 Cr. 263] has been dismiss-

ed by the government. Under the circumstances, no valid reason

can possibly be claimed for continued suppression of the rele-

vant portions of the Grand Jury testimony which was requested

below.

Moreover, and quite apart from the petitioner’s post-

verdict discovery claims discussed above, it is clear that the trial

court improperly concluded that the detectives’ personnel files

should-not have been released to the defense at trial. To begin

with, and as noted above, the court itself concluded that the

files contained some ‘‘impeachment matter’? which was

‘‘derogatory’’ to one of the officers and which ‘‘could be con-

sidered Brady material’’. Nevertheless, he refused to permit

defense counsel access to it on the grounds that it was both

nhl acca i react Tae DT nw on tee oe

privileged and inappropriate for use on cross-examination. In

this regard, the District Court was clearly in error.

An accused’s constitutional right to confront and cross-

examine the witnesses against him is at the foundation of our

system of justice [See Smith v. Illinois, 390 U.S. 129, 132

(1968)]. Even assuming that the information in the file was

privileged, the privileged status of evidence cannot justify its

suppression where to do so results in an interference with the ac-

cused’s right of confrontation [Davis v. Alaska, 415 U.S. 308

(1974); Cf. Chambers v. Mississippi, 410 U.S. 384 (1973). (Rule

of evidence precluding cross-examination by accused of his own

witness held to violate confrontation clause)]. The claimed

privilege, therefore, was an erroneous bases for the lower

court’s ruling. As for the District Judge’s finding that the infor-

mation was inappropriate for use on cross-examination, the

concealment of the information precluded counsel from making

any presentation as to the propriety of the ruling and resulted in

the denial of petitioner’s right to the effective assistance of

counsel [see United States v. Taylor, 562 F.2d 1345, 1365-1366

(2d Cir. 1977), cert. denied 432 U.S. 909 (1978); United States v.

Van Meerbeke, 548 F.2d 415, 418 (2d Cir. 1976), cert. denied

430 U.S. 974 (1977); United States v. Robinson, 544 F.2d 611,

620-621 (2d Cir. 1976), reh. en banc, 560 F. 2d 507, 516 (2d Cir.

1977), cert. denied 435 U.S. 905 (1978); see also Dennis v.

United States, 384 U.S. 855, 874 (1966)].

In Davis v. Alaska, supra, the defense was denied the use

of damaging impeachment material in its cross-examination of a

crucial prosecution witness. In holding that an accused’s right to

the effective cross-examination of the witnesses against him

superseded countervailing inte: ests of privilege, the Davis Court

stated, at 356:

‘‘The State’s policy interest in protecting the confidentiali-

ty of a juvenile offender’s record cannot require yielding

of so vital a constitutional right as the effective cross-

examination for bias of an adverse witness. The State

could have protected Green from exposure of his juvenile

adjudication in these circumstances by refraining from us-

ing him to make out its case; the State cannot, consistent

with the right of confrontation, require the petitioner to

bear the full burden of vindicating the State’s interest in

the secrecy of juvenile criminal records.”’

The situation in Davis was analogous to the one presented

here. In both cases a claim of privilege with respect to impeach-

ment material resulted in its suppression by the trial court. In

both cases suppression resulted in an interference with an accus-

ed’s right of confrontation. The holding in Davis compels the

conclusion that the District Judge here was clearly in error when

he withheld the information in the personnel file on the ground

that it was privileged.

A second ground asserted by the lower court for

withholding the information in the file from counsel was that it

was inappropriate for use on cross-examination. Never advised

as to the content of the information, defense counsel were

rendered impotent to offer any argument on the subject or con-

test in any way the legal propriety of the District Judge’s ruling.

Petitoner was thus placed in the intolerable position of having

counsel who had been relegated by the court to the role of

vestigial functionary. Petitioner was, as a result, denied his con-

stitutional right to the effective assistance of counsel.

In a series of recent cases, federal courts have repeatedly

recognized that trial counsel in our system are intended to serve

an important role, and that that role is not fulfilled when they

are rendered mere ornamentation or window dressing. In

United States v. Taylor, supra, United States v. VanMeerbeke,

supra, and in United States v. Robinson, supra, this Court was

confronted with situations in which trial judges refused or failed

to make known to counsel facts or circumstances that could

have effected the course of a defendant’s trial. Taylor is typical

of the cases cited. There, the trial judge did not reveal to counsel

a communication it had received from a juror in which the juror

sought to withdraw from deliberations to make funeral ar-

rangements for a family member. Addressing itself to the pro-

priety of the trial judge’s failure to inform counsel of the com-

munication, the Court stated, at 1366:

“*Before deciding to deny the juror’s request to be excused

from the trial, the court should have had ‘an informed

discussion [with counsel] on the proper course to follow’

United States v. Van Meerbeke, 548 F.2d 415, 418, (2d Cir.

1976). The fact that the court might then have similarly

denied the request, we recently stated in a related context,

‘is irrelevant to the right of the appellant[s] to be informed

. . . and also ignores the benefits which informed discus-

sion and debate between court and counsel rm iy produce

even where a court may be aware in the abstract of its own

alternatives.’ United States v. Robinson, 544 F.2d 611, 621

(2d Cir. 1976), rehearing en banc granted, No. 76-1153

(Feb. 17, 1977).”’

Based upon the cases cited, there can be little question but

that the District Judge here committed error by refusing to at

least reveal the content of the file so that counsel could have in-

telligently addressed themselves to the question of whether it

was appropriate for use on cross-examination. The trial court

erroneously usurped counsel’s function, and what was said in

Dennis, supra, in a related context, is equally applicable here:

‘In our adversary system, it is enough for judge’s to judge.”’

[Dennis v. United States, supra, at 874]. To the extent that

revelation to defense counsel might have caused the Detective

embarrassment or the like, ‘‘A slight degree of potential embar-

rassment faced by a [witness] is of little moment when compared

to the potential loss of liberty faced by a defendant.’’ [United

States v. Taylor, supra, at 1366].

APPENDIX “‘A”’

CONCLUSION | DECISION

| UNITED STATES COURT OF APPEALS

FOR THESE REASONS, A WRIT OF CERTIORARI

SHOULD ISSUE TO REVIEW THE JUDGMENT AND | For THE SECOND CiRcUIT

OPINION OF THE SECOND CIRCUIT. | |

Respectfully submitted, | No. 647-9—August Term, 1978.

(Argued March 20, 1979 Decided June 26, 1979.)

LAURENCE JEFFREY WEINGARD

WEINGARD AND BROUDNY | Docket No. 78-1395-7

401 Broadway |

New York, N.Y. 10013

Unitep STaTEs OF AMERICA,

Appellee,

—against—

ORLANDO DeELLI PAoLi, RicHARD WARME, and Victor Isaza,

Appellants.

ee ee eee es

Before:

LumBarD and OakEs, Circuit Judges, and

BRIEANT, District Judge.*

Appellants appeal from judgments of conviction for

distribution of cocaine and conspiracy to distribute heroin

and cocaine, in violation of 21 U.S.C. §§ 812, 841(a\1),

841(bX1XA), and 846, in the Southern District of New York,

Goettel, J., on the grounds that the government failed to

prove the existence of a single conspiracy and that the

district court made erroneous evidentiary rulings.

Of the Southern District of New York, sitting by designation.

Affirmed.

> wre

Roy Broupny, Esq.,..and Laurence Jrrrrey

WEINGARD, Esq., New York, N.Y. (Weingard

& Broudny, New York, N.Y.), for appel-

lants Orlando Delli Paoli and Richard

Warme. :

STUART HoitzMAN, Esq., New York, N.Y., for

appellant Victor Isaza. bree

Tuomas H. Sear, Assistant United States Attor-

ney (Robert B. Fiske, Jr., United States

Attorney for the Southern District of New

f York, of counsel), for appellee.

—~<-__

LuMBaARD, Circuit Judge:

Orlando Delli Paoli, Richard Warme, and Victor Isaza ap-

peal from judgments of conviction’ entered September 27,

1978, October 6, 1978, and October 12, 1978, respectively,

after a three-week jury trial before Judge Gerard L. Goettel

in the Southern District of New York on an indictment

charging distribution of cocaine and conspiracy to distribute

heroin and) cocaine, in violation of 21 U.S.C. §§ 812,

841(aX1), 841(bX 1A), and 846. On appeal, appellants con-

tend that the government’s proof at trial established mul-

tiple conspiracies, and that each appellant was seriously

prejudiced by the proof of other conspiracies in which he

was ‘not involved. Appellants also contend that the district

court made several erroneous évidentiary rulings: Finding

The central question on appeal is whether the jury could

find that the evidence supported the charge of a single con-

spiracy. From: an examination of ‘the record, ‘we conclude:

ee eT ene mares cee ttteinwe a cENEA: abet

that the evidence showed that over a period of several

weeks in early 1978, the defendants were acting together

~ and knew they were acting together to distribute heroin

and cocaine. The mastermind was Richard Warme, who

sought to obtain for resale a steady supply of heroin and co-

caine from a number of suppliers. Warme obtained quanti-

ties of cocaine from a partnership composed of defendants

Isaza and Wayne Petrucha for resale to New York narcotics

agents.' The proof also showed that Warme advanced

$20,000 to defendant Delli Paoli for ‘2 pound of heroin,

$20,000 which later disappeared into the pocket of a

trusted confederate who absconded to parts unknown with-

out delivering the heroin. Most of the important activity

took place at three places in the Bronx: at Warme’s resi-

dence, at a furniture store owned by Warme’s mother-in-

law, and at the Andrea Motel which was owned by the

family of Delli Paoli.

On January 24, 1978, Detective Steven Caracappa of the

New York Drug Enforcement Task Force went to an apart-

ment in the Bronx. There a woman named Lorraine intro-

duced Caracappa to Warme. Warme offered t6 sell Caracap-

pa two kilograms of cocaine. Caracappa agreed. The follow-

ing day, Warme again met with Caracappa at the same

apartment, provided him with a sample of cocaine, and

promised to provide him with heroin.

1 Warme also purchased narcotics from defendant Robert Bolella,

who pled guilty prior to trial and who was sentenced to 312

days imprisonment and five years special parole. Defendant

Petrucha also pled guilty prior to trial and was sentenced to one

year and a day imprisonment and five years special parole.

After their convictions at trial, defendant Delli Paoli was sen-

tenced to two years imprisonment and three years special parole,

defendant Warme was sentenced to four seven-year concurrent

sentences and ten years special parole, and defendant Isaza was

sentenced to an indeterminate term of imprisonment to be fol-

lowed by three years special parole. Diane Warme, wife of

defendant Richard Warme, was also charged with conspiracy but

was acquitted after trial.

Warme was not able to deliver any drugs at that time.

Caracappa, however, maintained contact with Warme who

repeatedly promised that he would shortly have both heroin

and cocaine. Thus on February 2, 1978, Warme explained in

one of many tape-recorded conversations that he had not .

been able to supply the promised narcotics because a con-

federate had not done the “right thing on the other ‘end.”

When Caracappa replied that he did not want to pressure

Warme, Warme indicated that he wanted to go through

with the deal but that he would have to “go there myself.”

Later, on February 14, 1978, when Warme indicated that

there were still supply problems, Caracappa replied, “If

there's a problem, you know I rather like back away from

the thing. . . . if you don’t want to do it, I don’t want to

push it.” In later conversations, Warme continued to urge

Caracappa to be patient because he expected to solve his

supply problems shortly.

_ Finally, on the evening of February 21, 1978, Warme

took Caracappa to the Twilight Longue in the Bronx. There

Warme introduced Caracappa to defendant Robert Bolella,

whom Warme said was the man responsible for “hanging

him up” on the deal. Although Bolella had already com-

mitted his heroin to someone else, he agreed to sell four

ounces of cocaine to Caracappa.

On February 25, Warme, Bolella, and Caracappa met at

Warme's house. Caracappa then drove Bolella to the home

of Bolella’s “connection” in Scarsdale to pick up one ounce

of cocaine for $1,000. When Caracappa returned to

Warme’s house with Bolella, Caracappa paid Bolella for his

help an additional $200, $100 of which Bolella paid to

Warme.

On March 2, 1978, Delli Paoli met Warme at a furniture

store belonging to Warme’s mother-in-law, located at 3434

Tremont Avenue in the Bronx. After Delli Paoli left,

Caracappa arrived. Thereafter, defendant Wayne Petrucha

arrived with a sample of cocaine, which he gave to Warme

and which Warme then gave to Caracappa. After receiving

the sample, Caracappa agreed to purchase through Warme

three or four ounces of cocaine at $1,400 per ounce later

that night. Caracappa gave Warme $1,200 “front” money

toward the purchase price and Warme turned the money

over to Petrucha. That afternoon, defendant Bolella also

visited the furniture store where he and Warme discussed

with Caracappa a sale of heroin and additional amounts of

cocaine. That evening, Caracappa, Warme, and Petrucha

met again at the furniture store. Petrucha sold to Cara-

cappa five ounces of cocaine for a total price of $7,000.

Caracappa paid Warme $50 for his help.

On the evening of March 9, 1978, Caracappa, accom-

panied by undercover officer William Petraglia, drove with

Warme to Warme’s apartment at 1101 Throgs Neck Boule

vard in the Bronx. Shortly after their arrival, defendant

Wayne Petrucha came to the apartment, accompanied by

defendant Victor Isaza. Petrucha told Caracappa that Isaza

was “the connection.” Caracappa then purchased from

Petrucha and Isaza five more ounces of cocaine, this time at

$1,200 per ounce. Isaza said that this cocaine was the same

material Caracappa had purchased March 2, and that he

and Petrucha could obtain for Caracappa large quantities of

both heroin and cocaine. After Petrucha and Isaza left,

Caracappa paid Warme $400 for his “cut on the deal.”

On March 14, 1978, Warme, Caracappa, and Petraglia

met again at the Crosstown Diner in the Bronx. There

Warme told Caracappa and Petraglia that he had a heroin

connection (Delli Paoli) who was associated with “Fat” Tony

Salerno and the “Pleasant Avenue People”, and that he

would soon be able to provide seven ounces of white heroin

for $11,000.

On March 16, 1978, Warme met Caracappa and Petraglia

at the furniture store to discuss further the proposed heroin

deal. His connection, he said, had just completed a $50,000

heroin deal. Later that night, Warme met with Caracappa

and Petraglia at Damien’s Bar in the Bronx. Delli Paoli

arrived for a brief visit, during which time he looked at but

did not speak with Caracappa. After Delli Paoli left, Warme

informed the officers that the heroin deal had fallen

through. Warme then assured them that he would have

heroin available on Sunday, March 19, 1978.

On March 19, 1978, Caracappa and Petraglia travelled to

the furniture store owned by Warme’s mother-in-law. The

officers gave Warme $11,000 front money for the seven

ounces of heroin which he promised would arrive that eve-

ning. Warme then drove to the Andrea Motel in the Bronx,

which was owned by Delli Paoli’s family. After meeting

- with Delli Paoli, Warme returned to the officers and re-

ported that the heroin had not yet arrived. He told them to

meet him at the Colonial Inn in the Bronx. Bolella iater

picked up the officers at the Colonial Inn and brought them

to Caesar’s Restaurant in the Bronx, where he received a

call from Warme reporting that the heroin had still not ar-

rived.

Warme met with the undercover officers during the early

morning hours of March 21, 1978 at his apartment. Warme

returned $9,000 to the officers and explained that he had

left $2,000 with his connection as a binder on the heroin

which had still not arrived. Later that day, Warme asked.

for $9,000 back so that he could pay for the heroin, which

he expected momentarily. Caracappa refused, telling Warme

that he would have to receive something for his $2,000

before he advanced any more money.

On March 23, 1978, Warme again met with the under

cover officers at the furniture store. After Warme explained

nate!

mt oes

his connection’s pricing policies, Caracappa and Petraglia

agreed-to pay $20,000 “up front” and $15,000 after delivery

for a % pound of heroin, which Warme expected to receive

over the weekend. Warme then left to see his “man”—Delli

~ Paoli.

‘SOn the morning of March 27, 1978, Warme called

Caracappa and told him that the heroin had arrived.

Petraglia put the $20,000 package of money together while

Caracappa drove to the furniture store. Later that day,

Warme took the two undercover officers to a restaurant

near the Andrea Motel. Warme then drove over to the An-

drea Motel with the $20,000. After he arrived at the motel,

he was observed conferring with Delli Paoli. Later in the

afternoon, Warme once again assured the officers that the

heroin would arrive momentarily. He then drove back to the

motel for further discussions with Delli Paoli. After a fur-

ther delay, Warme’s wife Diane Warme finally responded to

the officers’ impatience by escorting Caracappa and

Petraglia to a room at the motel where the officers met

Delli Paoli for the first time. Delli Paoli explained to the of-

ficers that there was “a little problem.” According to Delli

Paoli, he had given the $20,000 to an old friend of his, Sam

Schifano, whom he had known for 25 years. Schifano had

taken the $20,000 to buy the heroin and had disappeared.

Delli Paoli said that he had told Warme to search for

Schifano. He then told the officers to meet him at Warme’s

house in an hour.

The undercover officers met with Delli Paoli at Warme’s

house during the early morning hours of March 28, 1978.

Delli Paoli informed the officers that it looked like the

money was gone for good. Delli Paoli then indicated that he

would pay the money back with interest either with cash

payments or with payrrénts of drugs.

The officers met with Warme at his apartment on the

afternoon of March 28. Warme said that he had been up all

night looking for Schifano and that he would try to make

up the loss with eight ounces of cocaine. Delli Paoli then ar-

rived and said that he had other people looking for Schifano

as well. He confirmed Warme’s promises that they would

pay the officers back with drugs.

On March 29, Caracappa and Warme discussed Warme’s

efforts to get what cocaine he could to make up the

$20,000. Warme was relying heavily upon Petrucha. That

night, Warme met Caracappa and Petraglia outside

Warme’s residence, told them to wait, and went to the fur-

niture store where Petrucha was waiting with a package of

cocaine. Warme took the cocaine from Petrucha and

stepped into the back of the store, purportedly to get the

money to pay Petrucha. In fact, Warme never had any in-

tention of paying Petrucha. He continued out the back door

and jumped over a fence. Bolella picked him up in his car

and they drove past the undercover officers, signaling for

them to follow. Bolella and Warme stopped near the Bar-

tow exit on the New England Thruway and there gave the

officers five ounces of cocaine. Later than night, Caracappa

called Delli Paoli to tell him that the five ounces of cocaine

only partially compensated him for the lost $20,000. Delli

Paoli replied that he would try to make up the difference

with heroin.

On March 30, Caracappa spoke several times with

Warme and Petrucha. In one conversation, Petrucha

specifically identified Isaza as a major participant in his co-

caine dealing. That night, the undercover officers met with

Warme at the Andrea Motel. Warme emphasized that Delli

Paoli was at least as responsible as he was for the $20,000

loss, since Schifano was his friend and had put his “bless

ing” on the deal. Warme also gave the officers another

ounce of heavily cut cocaine. Later, Warme gave them an

additional four ounces of this low-quality cocaine. Although

Warme said that he received this cocaine from a new

source, the available evidence strongly suggests that he

merely took the five ounces of cocaine stolen from Petrucha

and added enough quinine to make it into ten ounces.

The following day, March 31, Warme and Delli Paoli

were again observed and photographed together outside the

Andrea Motel just before their arrest brought the con-

spiracy to a close.

THE DEFENSE

The only defendants who testified were Diane Warme

and Delli Paoli. Delli Paoli testified that he had known

Warme since 1976, and that Warme had come to him on

March 27 because he needed Delli Paoli’s help. Warme told

Delli Paoli that he “was in some kind of a problem, serious

trouble.” Delli Paoli said that Warme refused to tell him

what the problem was. Delli Paoli further testified that he

spoke to the undercover officers later that night on

Warme’s behalf. Delli Paoli testified that he did not know

what the officers were talking about when they mentioned

the drug deal, and that his conversations with Warme out-

side the Andrea Motel concerned construction problems and

not narcotics.

A SINGLE CONSPIRACY

Defendants claim that the government’s proof at trial

established multiple conspiracies, and that each defendant

was seriously prejudiced by the proof of other conspiracies

in which he was not involved. Defendant Isaza also argues

that his single sale of cocaine on March 9, 1978 was insuffi-

cient to support a conspiracy conviction.

The government charged a conspiracy to distribute nar-

cotics beginning in January, 1978, and continuing until the

10a

time when the various defendants were arrested. From the

proof at trial, the jury could have found the existence of an

ongoing narcotics business run by Richard Warme, who was

the core participant and who brokered sales of cocaine by

defendants Delli Paoli, Isaza and Petrucha. Each of the

defendants knew of Warme’s general plan and of the role

each played in the attempt to bring that plan to fruition.

We believe that there was suffficient evidence to permit the

jury to find the single conspiracy charged in the indictment.

The proof at trial showed that these defendants became

acquainted with Warme’s plan and his strategy for carrying

it out by March 2, 1978, at the latest. On that day, Delli

Paoli, Warme’s vaunted “connection”, visited Warme at the

furniture store belonging to Warme’s mother-in-law. The

jury could infer that Delli Paoli did not travel to the fur-

niture store on any legitimate business, but that he visited

Warme to discuss their narcotics dealings.

Soon after Delli Paoli left the furniture store, Caracappa

and then Petrucha arrived. That night, Petrucha returned

to the furniture store and delivered to Caracappa five

ounces of cocaine for $5,000. On March 9, 1978, Petrucha

identified Isaza to Caracappa as his “connection.” Instead of

objecting, Isaza confirmed his relationship with Petrucha

and his covert involvement in the March 2 deal by telling

Caracappa that the cocaine delivered on March 9 was the

same material as the March 2 cocaine, and that he and

Petrucha could obtain plenty more. Accordingly, the jury

could infer that Isaza and Petrucha worked together, that

Isaza participated in the March 2 transaction, and that both

Petrucha and Isaza were members of the conspiracy as of .

that time.

Having become integral parts of Warme’s supply network

as early as March 2, defendants Delli Paoli, Petrucha, and

Isaza inevitably came to know that they were not the only

OE mr ps

lla

suppliers. When Warme discussed with them his plan to sell

large amounts of narcotics to the undercover officers, the

other defendants must have known that he would obtain

narcotics wherever he could. Thus Delli Paoli, Petrucha, and

Isaza knew that whenever they could not meet Warme’s

needs, he would try to fill them elsewhere. In addition,

when Warme and Delli Paoli planned partially to compen-

sate Caracappa by stealing cocaine from Petrucha, Delli

Paoli planned to smooth things over by talking to

Petrucha’s father. Thus the jury could infer that Delli Paoli

knew Petrucha and probably Isaza as well. Where co-con-

spirators know with certainty that other suppliers and

dealers exist, even if they are not known personally, this

court has recognized the existence of a single conspiracy.

See, e.g., United States v. Moten, 564 F.2d 620 (2d Cir.

1977) (narcotics conspiracy involving numerous defendants

in Florida, New York, Washington, D.C., and Illinois);

United States v. Taylor, 562 F.2d 1345 (2d Cir.), cert.

denied, 432 U.S. 902 (1977) (narcotics conspiracy involving

numerous defendants in New York and Washington, D.C.).

The cases appellants rely upon are distinguishable. In

United States v. Miley, 513 F.2d 1191 (2d Cir.), cert.

denied, 423 U.S. 842 (1975), a former drug dealer

cooperating with the government in the hopes of receiving

some clemency led the agents on drug buying trips which

involved several sellers. None of the sellers had any reason

to be aware of the other sellers. In United States v. Ber

tolotti, 529 F.2d 149 (2d Cir. 1975), a core group of nar

cotics traffickers engaged in four separate drug transactions

whereby they either stole drugs without paying for them, or

failed to deliver drugs for which they had received payment

in cash. In each transaction they employed confederates

hire

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.