Opposition — DiPalermo v. United States

FILED

FEB 1S 1080

Nos. 79-815 and 79-819

: Ae) a MICHAEL RODAK, JR., CLERK

ce a _ ; a es : 2 eile : be

| an the Supreme Court of the Huited States Veod .

OcTOBER TERM, : 1979 |

JOSEPH D1PALERMO, PETITIONER

Vv.

‘UNITED STATES OF AMERICA

SALVATORE LOMBARDI, PETITIONER

yy.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED. STATES COURT OF APPEALS FOR ,

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

° Wape H. McCree, Jr.

Solicitor General

Puitip B. HEYMANN

: , Assistant Attorney General

Louis M. FIsCHER

Attorney

Department of Justice .

Washington, D.C. 20530

EL A EL I eT EE ED

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INDEX

Page

Opinion below ............. bi Te So epee Meee ae l

PN, hci isdcunnsibbianatrsttanasenoniaceamiomempebiaien 2

CRmMEROG PPCUOTIOIG 8. isan cisiinn cccisscssaphisncissneeceosavisscccosss 2

TE a scatileccciedad cles osncocsanaspetiuarin Spassenpneerteaiocnies 2

PU isis Pa ieicsscadencaness oocnbunticiniiantsateietersecsssbutiens 5

UIE siesendisenccusbccalelucsceaisea sini cicadendenusceians 13

CITATIONS

Cases:

California v. Green, 399 U.S. 149 oo. 11

Cronnon v. Alabama, 587 F. 2d 246, cert.

Gemied, 440 U.S. 974 .o.sii....cccccccssssssccnccoccsscseneee 7

Manson v. Brathwaite, 432 U.S. 98 .........

Mattox y. United States, 156 U.S. 237 ........... 11

McKethan v. United States, cert.

I, Fe Fe IO wcnrhnchnsihieseasisnscccnssnessesinn 11

Moody v. United States, cert. denied,

No. 78-6878 (Oct. 1, 1979).........cceeeceeeceeeeeeeeees 11

Neil v. Biggers, 409 U.S. 188 oo... eee 6

Ottomano v. United States, 468 F. 2d

269, cert. denied, 409 U.S. 1128 ...... 11

Pointer v. Texas, 380 U.S. 400.000... eee 11

United States v. Addonizio, 451 F. 2d

49, cert. denied, 405 U.S. 936 0. ee 11

United States v. Ash, 413 U.S. 300 ........ ee 7

il

Page

Cases—(Continued):

United States v. DeFillipo, 590 F. 2d

1228, cert. denied, No. 78-6411

CP TE NE sicticdctinasnntehtinarhiosedubisniniainkinncnenvecd 8

United States v. Geaney, 417 F. 2d

1116, cert. denied, 397 U.S. 1028 ..........000000... 8

United States v. Glazer, 532 F. 2d 224,

cert. denied, 429 U.S. 844 wooo eee 10

United States v. Mangan, 575 F. 2d

32, cert. denied, 439 U.S. 931 oo... 10

United States v. Nixon, 418 U.S. 683. ............... 9

United States v. Wiley, 519 F. 2d 1348,

cert. denied sub. nom. James v.

United States, 423.U.S. 1058 ............ eee 10

United States v. Williams, 596

Oc: nN 7

Viner v. United States, cert. denied,

SE ie ana circ cn cctieecattbiagcneaminccmecticamiliin 11

Constitution and statutes:

United States Constitution,

SRUMCREN “FRM Sik ccchcicccccsainccevdcncensncvscccedees 10

Jencks Act, 18 U.S.C. 3500 .............................. 12

Be Se ich oe aca acabneaennen 2

CRT ae jaws -*

In the Supreme Court of the Hnited States

OcTOBER TERM, 1979

No. 79-815

JOSEPH D1IPALERMO, PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 79-819

SALVATORE LOMBARDI, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-

10a)' is reported at 606 F. 2d 17.

'The opinion of the court of appeals is reproduced in the

appendix to each petition. For the sake of convenience, all

references here to the appendix will be to that in No. 79-815.

(1)

JURISDICTION

The judgment of the court of appeals was entered on

August 21, 1979, and petitions for rehearing were denied

on October 25, 1979 (Pet. App. B). The petition for a

writ of certiorari in No. 79-815 was filed on November

23, 1979, and the petition in No. 79-819 was filed on

November 24, 1979. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

|. Whether, in the circumstances of this case, an in-

court identification of petitioner DiPalermo was reliable

_ (No. 79-815).

2. Whether there was sufficient evidence independent

of the in-court identification to support petitioner

DiPalermo’s conviction (No. 79-815).

3. Whether co-conspirator statements were properly

admitted against petitioner Lombardi (No. 79-819).

4. Whether the prosecutor’s closing argument deprived

petitioner Lombardi of a fair trial (No. 79-819).

5. Whether the trial court, in sentencing petitioner -

DiPalermo, properly considered hearsay evidence of

petitioner's involvement in organized crime (No. 79-815).

STATEMENT

After a jury trial in the United States District Court

for the Eastern District of New York, petitioners were

convicted of conspiracy to manufacture and_ possess

methaqualone with intent to distribute it, in violation of

21 U.S.C. 846. Petitioner DiPalermo was sentenced to

seven years’ imprisonment, to be followed by a lifetime

special paroie term, and was fined $10,000, Petitioner

Lombardi was sentenced to five years’ imprisonment, to

be followed by a five-year special parole term, and was

fined $10,000. The court of appeals affirmed (Pet. App.

la-10a).

1. The evidence at trial, which is described in the

opinion of the court of appeals, showed that petitioner

DiPalermo was at the center of a methaqualone

manufacturing operation that included petitioner Lom-

bardi and co-defendants George Gillette and Alan

Kassebaum.? Briefly, the evidence showed that in April

1977 defendant Gillette told Vincent Marchese, a

government informant, that he had a friend named

“Herman” (later determined to be petitioner Lombardi)

who had manufactured quaaludes previously but needed

an assortment of new chemicals in amounts totalling

about 490 pounds (Pet. App. 3a). Marchese agreed to

find a source, but instead he contacted the DEA, which

in turn secured the chemicals legally. “Herman” agreed

to the $10,000 purchase price; Marchese and Gillette

picked up the chemicals on June 23, 1977, and moved

them to a secure warehouse in New Jersey (ibid.).

Petitioner Lombardi, who had been identified as

“Herman” through DEA surveillance, failed for some

four months to find a suitable location for a laboratory.

Finally, in mid-September 1977, petitioner DiPalermo

and two associates visited 135 Ellis Street on Staten

Island. That location contained a house and dock and

was quite isolated (Pet. App. 3a-4a). About a month

later, Gillette was seen at the same location and was then

observed by surveilling agents in a rendezvous with

petitioner DiPalermo in lower Manhattan. A week later,

these actions were repeated (id. at 4a).

2Gillette and Kassebaum were also convicted at trial on charges

arising from the methaqualone manufacturing operation. Gillette was

sentenced to five years’ imprisonment and Kassebaum to three years’

imprisonment.

Some five days later, Marchese and Gillette moved the

chemicals from the New Jersey warehouse to petitioner

Lombardi’s residence. Later that day, petitioner Lombar-

di was seen driving a truck on a route to the Ellis Street

location, but he apparently became concerned about

being followed and returned to his home (Pet. App. 4a-

5a). Later that night, the truck was observed at 135 Ellis

Street, where the chemicals were unloaded. Gillette later

told Marchese that “Herman” had successfully delivered

the chemicals despite his awareness of DEA surveillance

(id. at Sa). Gillette also told Marchese that he would

have to report the DEA’s presence to his “friend in New

York,” one “Joe Beck,” an alias for petitioner DiPalermo

(ibid.).

Kassebaum, a licensed New York pharmacist, was

recruited to do the actual manufacturing of the

methaqualone. He was observed on a number of

occasions at 135 Ellis Street and was overheard reporting

on his progress (Pet. App. 5a). Kassebaum was arrested

on November 14 a short distance from the laboratory.

He broke free and attempted to flush some of the

methaqualone down the toilet, but he was subdued. A

more thorough, warranted search of the laboratory

revealed quantities of methaqualone and the chemicals

that Marchese had provided the conspirators (id. at 6a).

2. At petitioner DiPalermo’s sentencing, he contested

the pre-sentence report’s conclusion that he was a high-

ranking member of the Luchese crime family. As a

result, the trial court held a hearing at which the

government presented the testimony of three FBI agents

who collectively reported information from 13 reliable

informants that petitioner was a captain in the Luchese

family. In addition, one criminal associate's testimony

was presented, as well as a recording of a wiretap that

demonstrated petitioner’s intent to murder the associate

(S. Tr. 24-100).3 In order to protect the informants’

safety, the identities of the informants and the agents’

notes were not revealed (id. at 46). In sentencing

DiPalermo to imprisonment for seven years, to be

followed by a lifetime special parole term, the trial court

stated that it was “to some extent influenced by what |

have heard here in Court concerning [petitioner’s] alleged

connections with organized crime and other matters” (id.

at 106-107).

ARGUMENT

1. Petitioner DiPalermo contends (79-815 Pet. 8-16)

that his identification at trial by Ryland Luttrell, the

caretaker at 135 Ellis Street, as one of the men who had

visited that site, was improperly tainted by Luttrell’s

viewing of a pretrial photographic array. Petitioner also

contends (79-815 Pet. 16-17) that absent this assertedly

tainted identification, there was insufficient evidence to

support his conviction. These fact-bound claims were

properly resolved against petitioner by both courts

below, and further review is unnecessary.

a. At the outset, we note that petitioner concedes (79-

815 Pet. 12), as he must, that the challenged identifica-

tion must be reviewed under the rule of Manson v.

Brathwaite, 432 U.S. 98 (1977), i.e., whether “in the

totality of the circumstances” the in-court identification

was reliable even if the pretrial identification was

suggestive. Under the Manson rule, “reliability is the

“S Tr.” refers to the transcript of the sentencing hearing of

November 3, 1978; “H. Tr.” refers to the transcript of the pretrial

suppression hearing of July 31, 1978; and “Tr.” refers to the trial

transcript.

linchpin in determining the admissibility of identifica-

tion testimony” (id. at 114). The factors to be considered

(first set forth in Neil v. Biggers, 409 U.S. 188, 199-200

(1972)), “include the opportunity of the witness to view

the criminal at the time of the crime, the witness’ degree

of attention, the accuracy of his prior description of the

criminal, the level of certainty demonstrated at the

confrontation, and the time between the crime and the

confrontation” (Manson, supra, 432 U.S. at 114).

Luttrell’s identification of petitioner DiPalermo sat-

isfies these criteria. Contrary to petitioner's. assertions

(79-815 Pet. 14), Luttrell had both ample time to observe

petitioner and “motivation to study” him.’ As the court

of appeals observed (Pet. App. 8a), “Luttrell, after all,

was responsible for scrutinizing visitors to the Ellis Street

location, and he had a good deal of time during which to

view DiPalermo, some of which was spent at relatively

close range.” Moreover, Luttrell was “certain” of his

identification of DiPalermo (H. Tr. 10, 25-26, 50, 54; Tr.

568), and he was very careful in his testimony not to

exaggerate—he testified for example, that Kassebaum

“resembled” the man who had occupied the Ellis Street

house and that another man “look[{ed] like” one of the

4Luttrell testified that, on a Sunday approximately two weeks

after Labor Day 1977, a car arrived at the Ellis Street site (Tr. 560,

594). DiPalermo exited from the rear seat; Luttrell watched him

carefully, because he at first thought that DiPalermo was crippled,

and Luttrell feared he would be held responsible if the man should

fall on the decaying dock (H. Tr. 11, 45). While the precise amount

of time that DiPalermo was in Luttrell’s presence is not a matter of

record, DiPalermo was present for the following events: the car

pulled up to the dock, three men exited. the two younger men had a

conversation with Luttrell and then returned to DiPalermo to confer

with him, and the two men then returned to Luttrell to speak to him

again (H. Tr. 10; Tr. 561-568).

= a=

two who had chauffeured DiPalermo (Tr. 575-576; H.

Tr. 29). Finally, Luttrell did not testify at ‘ about the

pretrail photographic identification, and . — .rial court

instructed the jury that it was to acquit DiPalmero if it

had any “reasonable doubt as to the accuracy of

[Luttrell’s] identifiction” (Tr. 1580). Under these cir-

cumstances, Luttrell’s in-court identification of DiPaler-

mo was reliable. Manson v. Brathwaite, supra, 432 U.S.

at 114-115; United States v. Williams, 596 F. 2d 44, 48-

49 (2d Cir. 1979); Cronnon v. Alabama, 587 F. 2d 246,

249-250 (Sth Cir.), cert. denied, 440 U.S. 974 (1979).°5

b. Nor is there any merit to petitioner DiPalermo’s

argument (79-815 Pet. 16-17) that there was no evidence,

absent Luttrell’s identification, to sustain his conviction.

The evidence showed that, in addition to DiPalermo’s

visit to the Ellis Street site at a time when the

conspirators were having difficulty locating a laboratory,

petitioner had two meetings on the street with co-

defendant Gillette, from which the jury properly could

have inferred that petitioner was giving directions to

Gillette concerning the methaqualone manufacturing

operation. Gillette was first observed by DEA sur-

veillance at the Ellis Street site on October 18, 1977 (Pet.

App. 4a; Tr. 945). The same day, about I5 minutes after

making some telephone calls freyn a public booth,

Gillette met with petitioner on a street corner in lower

Manhattan, a block from petitioner's home. A DEA

agent walking by the two overheard petitioner say, “It’s a

5A claim identical to petitioner’s contention (79-815 Pet. 13 n. *)

that his counsel should have been present at the photographic

display was, of course, considered and rejected by this Court in

United States v. Ash, 413 U.S. 300 (1973). Petitioner suggests no

reason for reconsidering that ruling.

lot of money;” Gillette replied, “I know it’s a lot of

money. That’s why you got to straighten it out” (Pet.

App. 4a; Tr. 662, 1010). Eight days later these events

were repeated: Gillette left 135 Ellis Street, met petitioner

at the same intersection in Manhattan, at which time

petitioner was overheard saying, “This is what you do”

(Pet. App. 4a; Tr. 947-950, 965-969). Five days later the

chemicals were moved from the New Jersey warehouse

to the Ellis Street laboratory (Pet. App. 4a).

These were far from coincidental actions, as the trial

court noted (S. Tr. 20-21), and they justified the

admission of a statement made by Gillette to Marchese

on November 8 that the DEA surveillance that was

observed by the conspirators on October 31 could have

resulted from his meetings with petitioner DiPalermo

(Pet. App. 5a; Tr. 224; C.A. App. A37).° In sum, despite

petitioner’s attempts to insulate himself, the evidence

demonstrated his leadership role in the conspiracy.

2. Petitioner Lombardi contends (79-819 Pet. 12-18)

that there was insufficient evidence of his participation in

the conspiracy to justify the admission of co-

*Petitioner complains (79-815 Pet. 17) not about this statement

but rather about an earlier statement by Gillette to Marchese that

petitioner was his “friend in New York.” But under the Second

Circuit’s rule that “hearsay [co-conspirator] declarations” may not

be considered against a defendant unless “independent nonhearsay

evidence” establishes his “participation in the conspiracy” by a “fair

preponderance of the evidence” (United States v. DeFillipo, 590 F.

2d 1228, 1236 (2d Cir.), cert. denied, No. 78-6411 (June 4, 1979),

citing United States v. Geaney, 417 F. 2d 1116 (2d Cir. 1969), cert.

denied, 397 U.S. 1028 (1970)), neither the district court nor the

court of appeals could consider that statement against petitioner

DiPalermo unless it found that “a fair preponderance” of the

independent evidence linked him to the conspiracy. As we have

shown above, the independent evidence of petitioner's involvement

was substantial.

conspirators’ statements against him and that certain of

the statements were not made in furtherance of the

conspiracy. Again, these fact-bound questions were

resolved against petitioner by both courts below, and

they do not merit further review in this Court.

The independent, nonhearsay evidence at trial concern-

ing petitioner Lombardi demonstrated that he was

indeed a part of the conspiracy. On June 30, 1977,

Gillette was seen driving away from the area of the New

Jersey warehouse where the chemicals were stored, and

his car was seen parked shortly thereafter in front of

petitioner Lombardi’s house; later that same day Gillette

met with Marchese at the New Jersey warehouse and

discussed the status of plans for storing the chemicals

(Tr. 96, 862-863). On September 15, 1977, Gillette met

with Marchese at the warehouse in the morning and later

that day was seen leaving petitioner’s home (Tr. 114-115,

638-643). Most importantly, Gillette drove the rental

truck containing the chemicals from the New Jersey

warehouse to petitioner’s home on October 31, and later

that day petitioner was seen driving the truck on a route

leading to the Ellis Street laboratory (Pet. App. 4a-Sa,

9a; Tr. 201, 734-735, 741, 743, 786-789, 951, 956-958).

This evidence, which, as the court of appeals noted

(Pet. App. Ila), must be viewed “ ‘not in isolation but in

conjunction{[,]’ ” obviously established petitioner’s partici-

ipation in the conspiracy by a fair preponderance.

Petitioner’s claim that the Second Circuit’s “fair

preponderance” standard for the admission of co-

conspirator statements conflicts with this Court’s

decision in United States v. Nixon, 418 U.S. 683 (1974),

because dictum in Nixon, addressed to a different point.

suggests a standard of sufficiency “to take the question

to the jury” (id. at 701 n.14), is no more worthy of

10

review in this case than were identical claims in three

previous cases in which the Second Circuit expressly

declined to follow the Nixon dictum and this Court

denied certiorari. United States v. Mangan, 575 F. 2d 32,

42 (2d Cir.), cert. denied, 439 U.S. 931 (1978); United

States v. Glazer, 532 F. 2d 224, 228-229 (2d Cir.), cert.

denied, 429 U.S. 844 (1976); United States v. Wiley, 519

F. 2d 1348, 1350-1351 (2d Cir. 1975), cert. denied sub

nom. James v. United States, 423 U.S. 1058 (1976).

Petitioner’s claim (79-819 Pet. 16-18) that some of the

hearsay statements were not made in furtherance of the

conspiracy and hence should not have been admitted

against him is similarly lacking in merit. The statements

in question, i.e. that Gillette said that “Herman” asked

him if he could provide chemicals, and that “Herman”

said he had manufactured quaaludes previously but had

run out of chemicals (Tr. 68-69, 78), clearly relate to the

formation of the conspiracy, for they show why Gillette

was seeking Marchese’s aid in locating chemicals. The

next statement, dealing with petitioner’s part-time

residence in Staten Island (79-819 Pet. 18; Tr. 90), was

made during a discussion about the delay in finding a

suitable site for a laboratory. As such, it too was in

furtherance of the conspiracy, for Gillette used “Her-

man’s” absence from New York to explain the delay and

assuage Marchese’s concerns. The district court, there-

fore, acted well within its discretion in admitting

these statements.’

7In a related argument, petitioner Lombardi contends (79-819 Pet.

18-19) that the admission of Gillette’s statements under the co-

conspirator exception to the hearsay rule violated petitioner's

confrontation rights under the Sixth Amendment. This claim is

without merit, for this Court has consistently approved the

constitutionality of admitting evidence pursuant to recognized

>»

3. Petitioner Lombardi also argues (79-819 Pet. 20-26)

that certain remarks made by the prosecutor in closing

argument require a new trial. The court below reviewed

these statements and properly found them not to- merit

reversal (Pet. App. 10a).

The record demonstrates that petitioner® could not

have been prejudiced by the comments in question. For

example, the prosecutor’s reference to the instant case as

one involving “narcotics” (79-819 Pet. 23; Tr. 1220-1221)

was quickly corrected by the district court, which then

allowed the prosecutor to use the shorthand term “drug”

case (Tr. 1220-1221). The prosecutor’s reference to $10

million worth of drugs being kept off the streets (79-819

Pet. 23), was, in fact, supported by the record, which

showed that, given the volume of chemicals purchased,

the laboratory was capable of manufacturing two million

methaqualone tablets at a street value of five to seven

dollars per tablet (Tr. 79, 1071). Similarly, the alleged

vouching for witnesses’ credibility (79-819 Pet. 24) was,

in reality, merely an argument that the witnesses had no

motive to distort the truth (Tr. 1225-1228, 1247-1248,

1517). Each objection, moreover, was followed by a

exceptions to the hearsay rule. See, e.g., Mattox v. United States,

156 U.S. 237, 240-244 (1895); Pointer v. Texas, 380 U.S. 400, 407

(1965); California v. Green, 399 U.S. 149, 165-168 (1970). Indeed,

this Court has never found a Confrontation Clause violation where

disputed statements were admitted under the federal co-conspirator’s

exception (see also Ottomano v. United States, 468 F. 2d 269, 273

(Ist Cir. 1972), cert. denied, 409 U.S. 1128 (1973); United States v.

Addonizio, 451 F. 2d 49, 71 (3d Cir. 1971), cert. denied, 405 U.S.

936 (1972)), and it has three times recently declined to review this

issue. Viner v. United States, cert. denied, 436 U.S. 904 (1978);

McKethan v. United States, cert. denied, 439 U.S. 936 .(1978);

Moody v. United States, cert. denied, No. 78-6878 (Oct. I, 1979).

|?

—

cautionary instruction that the jury was to decide the

case on the evidence, not arguments of counsel (Tr. 1247,

1518).* In a similar vein, the prosecutor himself tried to

correct his unfortunate comments concerning defense

counsel’s purported agreement with him that “Herman”

was guilty (79-819 Pet. 25; Tr. 1258, 1280). Finally, the

comments about defense counsel’s “gimmicks” (79-819

Pet. 24; Tr. 1250-1251) were merely legitimate responses

to petitioner’s attorney’s tactics in cross-examination of

the DEA agent who identified petitioner as the driver of

the rental truck on October 31 (Tr. 810-823). In short,

no reversible error occurred.

4. Finally, petitioner DiPalermo argues (79-815 Pet.

18) that he was entitled to cross-examine the confiden-

tial informants at his sentencing hearing and that he

should have been provided prior statements of the

agents, pursuant to the Jencks Act, 18 U.S.C. 3500. As

petitioner points out (79-815 Pet. 18), these are the same

issues that have been raised in the pending petition in

Fatico v. United States, No. 79-789. We rely on the

analysis contained in our brief in opposition in Fatico, a

copy of which we -are providing to counsel for

petitioner.

‘Likewise, the prosecutor’s statement that there was “uncon-

tradicted evidence” in the case (Tr. 1547). when viewed in context,

was merely a reference to the fact that the defendants’ cross-

examination had failed to discredit the evidence of the conspiracy.

An objection interrupted the completion of this statement: hence,

the trial court’s curative instruction was not even required (Tr.

1547).

13

CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted.

WapE H. McCreE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

Louis M. FISCHER

Attorney

FEBRUARY 1980

DOJ-1980-02