# Petition — Delli Paoli v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 926

## 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,

V.

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

ii

(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

20

30

37

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
*

?

68

la

17a

iv
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

51

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

23

33

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

65

52

65

26

31

23

35.

Se i oe Oe

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
appellants’ claims to be without merit, weaffirm. © © =”

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

3a

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.

4a

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,

5a

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.

6a

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

ee

nate!

mt oes

Ta

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.

8a

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

oe

9a

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

4
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
hired for that transaction alone, confederates who had no
reason to know that the core group had engaged in similar

12a

thefts elsewhere. Finally, in Kotteakos v. United States,
328 U.S. 750 (1946), only one of the alleged conspirators,
the core or “hub” conspirator, had any knowledge of the
existence and identity of other “spoke” conspirators, or had
reason to know of their existence and identity.

THE $50,000 Heroin DEAL

Warme and Delli Paoli claim as error admission of
Warme’s statement to Caracappa and Petraglia that his
“connection”, Delli Paoli, “was very, very careful because he
had just completed a $50,000 heroin deal in Miami,
Florida.” Both Delli Paoli and Warme contend that this
testimony was inadmissible as mere “other crimes” evidence.
Delli Paoli further argues that as to him this statement was
an inadmissible hearsay declaration by Warme. We find
that this statement was made in furtherance of the con-
spiracy and was direct evidence of the existence of the con-
spiracy. The statement was therefore admissible against all
the co-conspirators, including Delli Paoli.

In admitting this testimony, the district court observed
that no heroin had actually passed during the course of the
conspiracy and that the government was therefore obligated
to prove that “these were earnest negotiations by people
who had the capability of delivering the heroin”. Warme’s
statement that his connection had just completed a $50,000
heroin deal was admissible not only to prove capability and
intent, but also as a classic statement in furtherance of the
conspiracy. Warme intended by this statement to convince
the officers that he had a good connection and meant
business, even though the officers were not permitted to
meet that conn °ction. |

We do not believe that the statement was inadmissible
hearsay as to Delli Paoli. First, the statement was suffi-
ciently reliable, for it was a statement in furtherance of the

Sa ne ea ee a

13a

conspiracy and against penal interest when made. See
United States v. Puco, 476, F.2d 1099, 1107 (2d Cir.), cert.
denied, 414 U.S. 844 (1973). Second, there was sufficient
independent non-hearsay evidence that Delli Paoli was a
member of the conspiracy, as our recitation of the facts
amply shows.

“Fat” Tony SALERNO AND THE PLEASANT AVENUE PEOPLE

Warme and Delli Paoli claim reversible error in the ad-
mission of Caracappa’s testimony that Warme told him on
March 9 that Delli Paoli was “hooked up with ‘Fat’ Tony
Salerno and the Pleasant Avenue People.” Appellants argue
that this testimony unnecessarily injected into the trial the
spectre of organized crime. We disagree.

Caracappa’s passing reference to “ ‘Fat’ Tony Salerno and
the ‘Pleasant Avenue people,” standing alone, was not suf-
ficiently prejudicial to require a mistrial. Appellants’ claim
that the jury necessarily inferred from this testimony that
the defendants were involved in organized crime certainly
overstates any impact this testimony might have had. Even
assuming that appellants may know that “Fat” Tony
Salerno was associated with organized crime, mention of
Salerno’s nickname, by itself, could not convey the same
meaning to the jury. For all the jury knew, “Fat” Tony
could have been a blues singer, a jazz musician, a pool
player, or a wrestler. The district court, furthermore, gave a
cautionary instruction and the government did not pursue
this matter any further.

DESTRUCTION OF RoUGH DRAFTS AND NOTES

Warme and Delli Paoli claim that the district court
should have stricken the testimony of government witnesses
who had destroyed rough drafts and notes of written
reports made during the course of the investigation. The

14a

handwritten notes at issue were made by agents Caracappa
and John Mullen, the surveillance agent who observed many
of the defendants’ meetings. Caracappa testified that he had
made numerous handwritten reports during the course of the
investigation and that, in accordance with the normal pro-
cedure followed at that time, he had discarded his hand-
written notes and drafts after he had checked typewritten
copies for accuracy. Similarly, officer Mullen had discarded
his handwritten notes after he had put all the information
they contained into typewritten final reports. Caracappa’s
and Mullen’s final typewritten reports were disclosed to
defense counsel as § 3500 material.

In suggesting that the failure to preserve handwritten
notes should require a new trial, appellants rely on our deci-
sion in United States v. Bufalino, 576 F.2d 446 (2d Cir.
1978). In Bufalino, defendants contended that certain tape
recordings should have been suppressed because an agent
had destroyed a duplicate tape which might have shed some
light on numerous gaps and inaudible passages in the tape
recordings admitted at trial. Both we and Judge Lasker
sharply criticized the FBI practice of destroying such
material. Because the evidence of guilt was substantial,
however, we affirmed the convictions. We nevertheless
stated that we would look “with an exceedingly jaundiced
eye upon future efforts to justify non-production of a Rule
16 or Jencks Act ‘statement’ by reference to ‘department
policy or ‘established practice’ or anything of the like... . .
Where, as here, destruction is deliberate, sanctions will nor-
mally follow . . . unless the Government can bear the heavy
burden of demonstrating that no prejudice resulted to the
defendant.” 576 F.2d at 449. We do not, however, believe
that Bufalino requires a new trial or dismissal of the indict-
ment here. Bufalino was filed on May 10, 1978, after the
investigation in this case was completed and all rough

15a

drafts and notes destroyed. No useful deterrent purpose
would be served by penalizing the government for having
followed a policy which we understand has since been aban-
doned.

ENTRAPMENT

Warme contends that the district court’s refusal to give
an entrapment charge as requested was reversible error. To
be entitled to an entrapment charge, the defendant must

produce some credible evidence tending to show that
government agents induced him to commit the crime.

United States v. Henry, 417 F.2d 267, 269 (2d Cir. 1969),
cert. denied, 397 U.S. 953 (1970). Although Warme had suffi-
cient opportunity to introduce such evidence if he had it, he
made no attempt to introduce evidence of inducement. As a
result, there was no evidence from which the jury could infer
inducement or entrapment. The district court was clearly cor-
rect in refusing to give any entrapment charge.

LORRAINE

Warme argues that the district court should have ordered
the government to disclose whether the woman named Lor-
raine, who introduced Caracappa to Warme, was a govern-
ment informant. Lorraine was not called as a witness.
Warme’s counsel wanted to know more about Lorraine’s
precise relationship with the government in the hope that
such information might help an entrapment defense. The
district court indicated when counsel first demanded
disclosure of Lorraine’s status that it would not order
disclosure until counsel brought forth some evidence tend-
ing to support an entrapment defense. Counsel never in-
troduced any evidence tending to support an entrapment
defense. As Lorraine's relationship with the government

‘was therefore irrelevant to the issues presented by the

defendant at trial, the district court properly refused to

16a

order the requested disclosure. See United States v. Ed-
monds, 535 F.2d 714 (2d Cir. 1976); United States v. Soles,
482 F.2d 105 (2d Cir.), cert. denied, 414 U.S. 1027 (1973).
Cf. Roviaro v. United States, 353 U.S. 53 (1957).

THE MarcH 30 CONVERSATION

Defendant Isaza argues that the district court erred when
it admitted into evidence portions of a March 30, 1978
tape-recorded telephone conversation between defendant
Wayne Petrucha and undercover officer Caracappa. This
conversation tended to show that Isaza had acted with
Petrucha in selling cocaine to Caracappa.

The March 30 conversation occurred after Warme had
taken from Petrucha several ounces of cocaine without pay-
ing for it. During the first part of the conversation, Diane
Warme told Caracappa that the “spics’ had sent a
“message” that “me and Wayne are ‘dead’ if this thing ain’t
straightened out by tomorrow evening.” Petrucha then told
Caracappa that Isaza was connected to the source for the
cocaine that Warme had taken, that Isaza was the person
who had done business before with Caracappa, and that
Isaza’s friends had threatened to get Petrucha if he did not
pay for the cocaine that had been stolen. The government
introduced this conversation as one made in furtherance of
the conspiracy.

Although this conversation clearly had probative value,
Isaza contends that any probative value was substantially
outweighed by its prejudicial impact. The district court
balanced the probative value and the prejudicial impact
and concluded that the evidence was admissible. We find
no abuse of discretion in that conclusion. Cf. United
States v. Tramunti, 513 F.2d 1087 (2d Cir.), cert. denied,
423 U.S. 832 (1975) (death threat evidence).

_ The appellants’ remaining contentions do not merit
discussion.

Affirmed.

oe eintek a

mee.

17a

APPENDIX ‘‘B”’
JUDGMENT AND PROBATION/
COMMITMENT ORDER

UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK

ORLANDO DELLI PAOLI a/k/a Bobby London
Docket No. 78 Cr. 00264(1) GLG

In the presence of the attorney for the government,
Thomas Sear, AUSA the defendant appeared in person on this
date: October 12, 1978.

With Counsel: Daniel Greenberg, Esq.
FINDING & JUDGMENT

There being a verdict of guilty on Count 1. Defendant has
been convicted as charged of the offense(s) of a Schedule II nar-
cotic Drug Controlled substance. (Title 21, United States Code,
Sections 812, 841(a)(1) and 841(b)(1)(A); Title 18, United States
Code. (Title 21, United States Code, Section 846).

SENTENCE OR PROBATION ORDER

The court asked whether defendant had anything to say
why judgment should not be pronounced. Because no sufficient
cause to the contrary was shown, or appeared to the court, the
court adjudged the defendant guilty as charged and convicted
and ordered that: The defendant is hereby committed to the
custody of the Attorney General or his authorized repre-
sentative for imprisonment for a period of TWO (2) YEARS on
Count 1. Pursuant to the provisions of Section 841 of Title 21,

18a

United States Code, the defendant is placed on SPECIAL
PAROLE for a term of TEN (10) YEARS on Count 1, to com-
mence upon expiration of confinement.

SPECIAL CONDITIONS OF PROBATION
Bail Pending Appeal.

s/Gerard L. Goettel
GERARD L. GOETTEL, U.S.D.J.

Date: 10/12/78

APPENDIX ‘‘C”’
RULE 8. JOINDER OF OFFENSES AND OF DEFENDANTS

(a) Joinder of offenses. Two or more offenses may be
charged in the same indictment or information in a separate
count for each offense if the offenses charged, whether felonies
or misdemeanors or both, are of the same or similar character
or re based on the same act or transaction or on two or more
acts or transactions connected together or constituting parts of
a common scheme or plan.

(b) Joinder of defendants. Two or more defendants may be
charged in the same indictment or information if they are alleg-
ed to have participated in the same act or transaction or in the
same series of acts or transactions constituting an offense or of-
fenses. Such defendants may be charged in one or more counts
together or separately and all of the defendants need not be
charged in each count.

(Dec. 26, 1944 eff. Mar. 21, 1946).

om mer oy

a

19a,

APPENDIX ‘‘D”’
FEDERAL RULES OF EVIDENCE, RULE 104

Preliminary Questions

(a) Questions of Admissibility Generally. Preliminary ques-
tions concerning the qualification of a person to be a witness,
the existence of a privilege, or the admissibility of evidence shall
be determined by the court, subject to the provisions of subdivi-
sion (b). In making its determination it is not bound by the rules
of evidence except those with respect to privileges.

(b) Relevancy Conditioned on Fact. When the relevancy of
evidence depends upon the fulfillment of a condition of fact,
the court shall admit it upon, or subject to, the introduction of
evidence sufficient to support a finding of the fulfillment of the
condition.

APPENDIX ‘‘E’’
Federal Rules of Evidence, Rule 403

Exclusion of Relevant Evidence on
Grounds of Prejudice, Confusion,
or Waste of Time

Although relevant, evidence may be excluded if its pro-
bative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.

20a

APPENDIX ‘“‘F”’
U.S. CONSTITUTION, AMENDMENT 5

Criminal actions—Provisions concerning—
Due process of law and just compensation clauses.

No person shall be held to answer for a capital, or other-
wise infamous crime, unless on a presentment or indictment of a
Grand Jury, except in cases arising in the land or naval forces,
or in the Militia, when in actual service in time of War or public
danger; nor shall any person be subject for the same offense to
be twice put in jeopardy of life or limb; nor shall be compelled
in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use, without
just compensation.

APPENDIX ‘‘G’’
U.S. CONSTITUTION, AMENDMENT 6

Rights of the Accused.

In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law, and
to be informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defense.

21a

APPENDIX ‘“‘H”’
21 U.S.C. §812

Schedules of controlled substances

(a) There are established five schedules of controlled
substances, to be known as schedules I, II, III, IV, and V . Such
schedules shall initially consist of the substances listed in this
section. The schedules established by this section shall be up-
dated and republished on a semiannual basis during the two-
year period beginning one year after the date of enactment of
this title [Oct. 27, 1970] and shall be updated and republished
on an annual basis thereafter.

(b) Except where control is required by United States
obligations under an international treaty, convention, or pro-
tocol, in effect on the effective date of this part [Oct. 27, 1970],
and except in the case of an immediate precursor, a drug or
other substance may not be placed in any schedule unless the
findings required for such schedule are made with respect to
such drug or other substance. The findings required for each of
the schedules are as follows:

(1) SCHEDULE I.— -

(A) The drug or other substance has a high potential
for abuse.

(B) The drug or other substance has no currently ac-
cepted medical use in treatment in the United States.

(C) There is a lack of accepted safety for use of the
drug or other substance under medical supervision.

(2) SCHEDULE II.—
(A) The drug or other substance has a high potential
for abuse.
(B) The drug or other substance has a currently ac-
cepted medical use in treatment in the United States or a

—

ss ne .

= —

22a

currently accepted medical use with severe restrictions.
(C) Abuse of the drug or other substances may lead to
severe psychological or physical dependence.

(3) SCHEDULE III.—

(A) The drug or other substance has a potential for
abuse less than the drugs or other substances in schedules I
and II.

(B) The drug or other substance has a currently ac-
cepted medical use in treatment in the United States.

(C) Abuse of the drug or other substance may lead to
moderate or low physical dependence or high
psychological dependence.

(4) SCHEDULE IV.—

(A) The drug or other substance has a low potential
for abuse relative to the drugs or other substances in
schedule III.

(B) The drug or other substance has a currently ac-
cepted medical use in treatment in the United States.

(C) Abuse of the drug or other substance may lead to
limited physical dependence or psychological dependence
relative to the drugs or other substances in schedule III.

(5) SCHEDULE V.—

(A) The drug or other substance has a low potential
for abuse relative to the drugs or other substances in
schedule IV.

(B) The drug or other substance has a currently ac-
cepted medical use in treatment in the United States.

(C) Abuse of the drug or other substance may lead to
limited physical dependence or psychological dependence
relative to the drugs or other substances in schedule IV.

23a

v

following drugs or other substances, by whatever official name,
common or usual name, chemical name, or brand name
designated:

[SCHEDULES OMITTED FROM APPENDIX]

APPENDIX ‘“‘I’’
TITLE 21, U.S.C. 841(a)(1) & (b)(1)(A)

OFFENSES AND PENALTIES
§841. Prohibited acts A-Penalties

(a) Except as authorized by this title, it shall be unlawful
for any person knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or possess
with intent to manufacture, distribute, or dispense, a con-
trolled substance; or

(2) to create, distribute, or dispense, or possess with
intent to distribute or dispense, a counterfeit substance.

(b) Except as otherwise provided in section 405 [21 USCS
§845], any person who violates subsection (a) of this section
shall be sentenced as follows:

(1)(A) In the case of a controlled substance in schedule
I or II which is a narcotic drug, such person shall be
sentenced to a term of imprisonment of not more than 15
years, a fine of not more than $25,000, or both. If any per-
son commits such a violation after one or more prior con-
victions of him for an offense punishable under this
paragraph, or for a felony under any other provision of

(c) Schedules I, II, III, IV, and V shall, unless and until
amended pursuant to section 201 [21 USCS §811], consist of the

this title or title III or other law of the United States
relating to narcotic drugs, marihuana, or depressant or

ee ae oe ee. ee

A. Ss ae eee

a ean ee 5 A i ces

24a

stimulant substances, have become final, such person shall
be sentenced to a term of imprisonment of not more than
30 years, a fine of not more than $50,000, or both. Any
sentence imposing a term of imprisonment under this
paragraph shall, in the absence of such a prior conviction,
impose a special parole term of at least 3 years in addition
to such term of imprisonment and shall, if there was such a
prior conviction, impose a special parole term of at least 6
years in addition to such term of imprisonment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0609%3A1. Public record. Not legal advice.