Petition — Lombardi v. United States (Nos. 79-819, 79-815)
Supreme Court brief1979
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Supreme Court, U..&,
FILED
NOV 24 1979
In The
KCHAL AOBAK, JR., CLERK
Supreme Court of the Hnited
>-
October Term, 1979
N° $9-819
SALVATORE LOMBARDI,
Petitioner,
VS.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT
NEWMAN & ADLER, P.C.
Attorneys for Petitioner
522 Fifth Avenue
New York, New York 10036
(212) 682-4066
ROGER BENNET ADLER
On the Brief
2891 LUTZ APPELLATE PRINTERS, INC.
Luw and Financiwl Printing
South River, Nb New York NLY. Philadelphia, Pa Washington, DC
(201) 257-6450 (212) 840-9494 (215) 563.5587 (202) 7K3-7 288
TABLE OF CONTENTS
Page
Opinions Below ......... PETE Cede BERENS GS ce db c oes l
PE WAG Cac a hie Fa heeTa eee eviicnicess. 2
EO Oe Cee TE TEL TEE TETe
Constitutional Provisions Involved ..............-.see00- 2
re a i Re eee eee 3
Pe A A Oe ee ee 4
EE 6
ee PCS ee En Esse bess esicccescces 8
EE SE 8
The Government's Summation ..................... 8
RR ED OES Oe 11
BE I Ot ee 11
Reasons for Granting the Writ:
1. The Government's introduction of conversations
between Marchese and the non-testifying co-
defendant Gillette was error and denied petitioner
EEE EE EE 12
A. The Evidentiary Hearsay Standard .......... 12
B. Denial of the Right of Confrontation ....... 18
il
Contents
Page
Il. In a concededly close case, multiple improprieties in
the prosecutor's summation deprived petitioner of a
Cite tHE. as dnd pode eee reso ees thane a nee ee eRERS 20
ComeOW oc vies ecencgewsceenenersnes weer re Ty rst va:
TABLE OF CITATIONS
Cases Cited:
-
Berger v. United States, 295 U.S. 78, 55 S. Ct. 629, 79
we ee re rere rr rs freer er rrr 2!, 26
Chapman v. California, 386 U.S. 18 ........ eee e eee e eee 16
Donnelly v. De Christofaro, 416 U.S. 637, 94 S. Ct. 1868
CNN ks vi edelevenuwneeessscskveo ud soee reaver Peet 24
Dutton v. Evans, 400 U.S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213
1 ere rer ree yr Teer Te er ere ter Tey 17, 18
Glasser v. United States. 745 U.S. 60, 62 S. Ct. 457 (1942) -
Hicks v. United States, 150 U.S. 422 (1893) .....-- eee eee 16
King v. United States, 402 F.2d 289 (10th Cir. 1968) ....... 16
Krulewitch v. United States, 336 U.S. 440 (1949) .......... 17
People v. Ashwall, 39 N.Y. 2d 105, 383 N.Y. 2d 204 (1976) ‘a
iii
Contents
Page
Schneble v. Florida, 405 U.S. 427.00... 0.00... cou okee. 19
United States v. Agueci, 310 F. 2d 817 (2d Cir. 1962), cert.
GUD, F¥a OS FIP NED Fo 8 Bie AEs rcdveeeie. 24
United States v. Antonelli Fireworks Co., 155 F. 2d 631 (2d
Cir., Frank J., dissenting), cert. denied, 329 U.S. 742
CE va ke aaw en Sy Oe Tee Te Peer ere 26
United States v. Bess, 593 F.2d 749 (6th Cir. 1979) ........ 24
United States v. Birnbaum, 337 F.2d 490 (2d Cir. 1964)
ba Wn AN A a NE Ca Eee ee RN 17
United States v. Bivona, 487 F. 2d 443 (2d Cir. 1973) ..... 23, 26
United States v. Brawer, 482 F. 2d 117 (2d Cir. 1973) ...... 23
United States v. Burges, 579 F. 2d 747 (2d Cir. 1978) ...... 16
United States v. Burse, 531 F.2d 1151 (2d Cir. 1976) ....... 23
United States v. Check, 582 F. 2d 668 (2d Cir. 1978) ....... 16
United States v. Cirillo, 499 F. 2d 872 (2d Cir. 1974), cert.
denied, 419 U.S. 1056 (1974) 2... secccsccccceveceees 14, 15
United States v. Dibrizzi, 393 F. 2d 642 (2d Cir. 1968) ..... 20
United States v. DiPalermo, et al., slip op 4295 at 4304
CLEA CWA EAM OR LSTA CARERS ORES Rke EEN Eee NE 13, 20
United States v. DiStefano, 555 F. 2d 1094 (2d Cir. 1977)
kde SARLEEK SORES SS RASp ICE WAS eR OR ONE READIES S bps 14
iv
Contenis
Page
United States v. Drummond, 481 F. 2d 62 (2d Cir. 1973)
ocaeswecnsababewnes Cbebuewnns bce eeweme wenn aaa 22
United States v. Frazier, 580 F. 2d 229 (6th Cir. 1978) ..... 25
United States v. Geaney, 417 F. 2d 1116 (2d Cir.), cert.
denied sub nom. Lynch v. United States, 397 U.S. 1028,
OO &.. CR. CATR TIGI - onccn ver cncdcaannaedeeeee 12, 13, 14
United States v. Grant, 462 F. 2d 28 (2d Cir. 1972) ........ 17
United States v. Grunberger, 431 F. 2d 1062 (2d Cir. 1970)
ee rn Gr eS ee RN 2!
United States v. James, 590 F. 2d 575 (Sth Cir. 1979), cert.
Gontad, 99 &. CE: TOO sca 00s in sds seamen eaebnnnes 13
United States v. Leon, 534 F. 2d 667 (6th Cir. 1976) ....... 24
United States v. Lipscomb, 435 F. 2d 795 (5th Cir. 1970),
cert. denied, 403 U.S. 960 CISTI) . nec ccwecaseswecacs 19
United States v Manarite, 448 F. 2d 583 (2d Cir. 1971) ..... 17
United States v. Manfredi, 488 F. 2d 588 (2d Cir. 1973),
cert. denied, 417 U.S. 936, 94 S. Ct. 2651 ............. 14
United States v. Mangan, 575 F. 2d 32 (2d Cir. 1978) . 13, 17, 19
United States v. Morris, 568 F. 2d 396 (Sth Cir. 1978) ...... 21
United States v. Nardone, 106 F. 2d 41 (2d Cir.), rev’d on
other gds., 308 U.S. 338 (1938) ......cccccceccccccees 17
United States v. Nelson, 603 F. 2d 42 (8th Cir. 1979) ....... 19
y
Contents
Page
United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090 (1974)
baal Werke bade eine aa Ga & Ge ae lee ie ee OS Sh oc 13
United States v. Oates, 560 F. 2d 45 (2d Cir. 1977) ........ 19
United States v Puco, 476 F. 2d 1099 (2d Cir.), cert. denied,
RN oe a alee te Sede mtia | 19
United States v. Ruffin, 575 F. 2d 346 (2d Cir. 1978) ....... 16
United States v. Stanchich, 550 F. 2d 1294 (2d Cir. 1977)
aE a TR CEE ae gee eee Oh ea ee hie Cd ead we am 14
United States v. Steinberg, 525 F. 2d 1126 (2d Cir. 1974)
Gee i een aed ene hla dd WW Ags bbl bee oe 6 Ok we aes 15
United States v. Suarez, 588 F. 2d 352 (2d Cir. 1978) ..... 20, 23
United States v. Tramunti, 500 F. 2d 1334 (2d Cir. 1974)
I oll dec tote oA CS oho 4 Oa ew hi ones cc bee 15
United States v. White, 486 F. 2d 204 (2d Cir. 1973) ....... 22
United States v. Ziegler, 583 F. 2d 77 (2d Cir. 1978) ....... 13
Williams v. Henderson, 451 F. Supp. 328 (E.D.N.Y. 1978),
oe ee ae ee | oe 23, 24
Statutes Cited:
I I oi ie ig a ae a tl ae 3
oe aa le ke Ghee tae aaa »
ea ea ei had dae eae ke RO A 2
vi
Contents
Page
United States Constitution Cited:
oe, eee eee ee ee ee Pere rr errr rer rer 3
Se FIO 5.6 sd vc eset SeaGasaenessees 2, 12, 18, 19, 24
Rule Cited:
Perro ss OF ewe ree err rye) Tewee P rr ee Tee 20
~ Other Authorities Cited:
ABA Code of Professional Responsiblity, Final Draft, 1969
5 ile | Se Per re rer Tre Bee i mere 22
ABA Standard Relating to the Administration of Criminal
DE; TG Bae iki kn 0's nd ona Sa eea Nea e ete 22
Weinstein’s Evidence, Section 801(d)(2)(E)(Ol) ............. 18
APPENDIX
Appendix A — Opinion of United States Court of Appeals
ear Chee Se: CE i.e 6 o'e 6 Cae RST i adie iacé
Appendix B — Orders Dated October 25, 1979 Denying Pe-
COR. ccccensdcune bia 350s a arek oe Wee ekaeed Te
la
In The Bs
Supreme Court of the United States
+
OCTOBER TERM, 1979
No.
SALVATORE LOMBARDI,
Petitioner,
VS.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR’ THE
SECOND CIRCUIT
Petitioner Salvatore Lombardi respectfully prays that a writ
of certiorari be issued to review the judgment of the United
States Court of Appeals for the Second Circuit entered in this
case on August 21, 1979. A timely petition for rehearing en banc
was denied on October 25, 1979.
OPINIONS BELOW
The opinion of the Court of Appeals for the Second Circuit
is unreported and appears as Appendix A to this petition. The
court of appeals, in a unanimous per curiam opinion, affirmed a
judgment entered following a jury trial in the United States
District Court, Eastern District of New York (Hon. Edward R.
Neaher, J.), which found petitioner guilty of conspiring to
manufacture and possess with intent to distribute methaqualone,
the controlled substance commonly known as “quaaludes”, in
violation of 21 U.S.C. §846. Petitioner was sentenced to the
custody of the Attorney General for a term of five years’
imprisonment, a special parole term of five years, and a fine of
$10,000.
JURISDICTION
The jurisdiction of this Court is invoked under 28 U.S.C.
§1254. The petition for a writ of certiorari is filed within thirty
days of the court of appeals’ denial of the motion for reargument
en banc.
QUESTIONS PRESENTED
1. Did the court of appeals erroneously uphold the trial
judge’s ruling admitting into evidence the conversations between
the Government’s informant Marchese and the defendant
Gillette as evidence-in-chief against petitioner over the objection
that such testimony was rank hearsay as to petitioner and the
claim that petitioner’s right of confrontation was violated?
2. In a concededly close case, did the multiple improprieties
in the prosecutor’s summation deprive petitioner of due process
of law and a fair trial?
CONSTITUTIONAL PROVISIONS INVOLVED
Amendment VI:
“In all criminal prosecutions, the accused
shall enjoy the right ...to be confronted with
the witnesses against him.. .”
A VEN, LOE SS ig
primer ers
Amendment V:
“No person shall be held to answer for.a
capital or otherwise infamous crime... nor be
deprived of life, liberty or property, without due
process of law...”
STATUTES INVOLVED
Title 21, United States Code, Section 846 states:
“Any person who attempts or conspires to
commit any offense defined in this subchapter is
punishable by imprisonment or fine or both
which may not exceed the maximum punishment
prescribed for the offense the commission of
which was the object of the attempt or
conspiracy.”
Title 21, United States Code, Section 841(a)(1) states:
“(a) except as authorized by this subchapter,
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 controlled substance... .”
STATEMENT OF FACTS
Petitioner Salvatore Lombardi was charged, along with co-
defendants Joseph DiPalermo, George Gillette, William
Romano and Alan Kassebaum, with a conspiracy to knowingly
and intentionally manufacture, distribute and possess, with
intent to distribute, quantities of methaqualone, a Schedule II
controlled substance. The Government contended Lombardi
participated in the conspiracy by providing financial support.
4
The Evidence
The Government's chief witness was Vincent Marchese, a
paid informant for various government agencies (285)',
including the Drug Enforcement Agency (DEA) which, as of the
time of trial, had already paid him $9,600 (58) for information
relating to this case.
At trial, Marchese testified, over objection? (62), that an old
friend and one-time business partner (60), George Gillette,
approached him in April 1977 for assistance in purchasing some
non-controlled3 chemicals for a friend named Herman (68), who
needed these chemicals to manufacture quaaludes (77-78). He
claimed Herman had previously manufactured quaaludes at a
plant in Brooklyn (78).
Gillette indicated he would be given the opportunity to buy
the product at a price of $1 a tablet, when the street value was
approximately $5 - $7 a tablet (79). After contacting several drug
companies without success, Marchese contacted the DEA (80),
which found a supplier — Berg Chemical Company in
Manhattan (81).
The purchase price of the chemicals, which Gillette claimed
had to be approved by Herman, was approximately $10,000
(84). On May I1, Marchese, accompanied by Gillette, purchased
approximately $5,000 of money orders under the name Robert
Burke (85-86). Gillette claimed the money, which was used as a
1. Parenthetical references are to pages in the trial transcript.
2. Defense counsel objected on the basis that since the alleged
conversation occurred outside the dates charged in the indictment, the
testimony was hearsay as against any defendant other than the declarant (62).
The prosecutor offered the statements on the basis that, “These are statements
in furtherance of a conspiracy to show a formation of a conspiracy.” (62-63).
3. N-acetyl anthreneche acid, O Tcluidine, Poly phosphoric acid.
REN er
5
down payment for the chemicals as well as the balance received
later, was supplied by Herman (85, 92).
In addition, Gillette claimed Herman told him the brand of
anthrenihe acid should not be “Sherman Williams”, but rather
should be “Chemisphere” because it worked better (90).
The chemicals were picked up by Gillette and Marchese on
June 23 and transported by them from the Berg Chemical
Company warehouse in the Bronx (635) to a warehouse in
Elizabeth, New Jersey (95), where they were observed by DEA
Agent Dennis Nargi (635-636). The drugs remained in the
warehouse throughout the summer.
In conversations between Gillette and Marchese on June 30,
Gillette explained that the delay was caused by Herman’s
difficulty in finding a suitable laboratory (96-98).
In late August, the chemicals were moved to a storage
trailer in front of the warehouse (112).
On September 1[5, Gillette informed Marchese that if
Herman did not find a laboratory soon, Gillette would secure
one (115). Gillette further stated that he wanted to see Herman
to get an idea where to place the chemicals (114). Gillette
allegedly called Herman at his home and said he would be over
in a little while (114). Later that day, Gillette’s car was observed
by DEA Agent Nargi in front of 182 Gower Street, Staten
Island* (643).
With the manufacturing plans at a standstill, Marchese
informed Gillette on October 4 that he was interested in
purchasing a pound of “speed” from Gillette for $5,300°.
4. At the time of his arrest, Lombardi indicated he lived at 182 Gower
Street and maintained a residence in Florida (893).
5. Methedrine hydrochloride.
6. The funds were supplied by the DEA.
6
Instead, Gillette sold Marchese ephirene, a non-controlled and
virtually valueless substance (117).
A. The Delivery
The chemicals were finally moved on October 31, 1977,
after a laboratory was allegedly obtained through the efforts of
defendant DiPalermo.
A portion of a street corner conversation between Gillette
and DiPalmero was allegedly overheard on October 26, during
which Gillette was told, “This is what you do.”
Gillette rented a Ryder Rental Truck (198) and drove with
Marchese to Elizabeth, where they loaded the truck (201). They
then proceeded to Staten Island and parked the truck on Gower
Street. When Marchese asked why the truck was parked there,
Gillette explained that the location was near Herman’s house’ so
Herman could watch the truck (212).
DEA Agent Philip Hayward observed the truck park and
Gillette walk away (951). DEA Agent Kelley arrived at Gower
Street at approximately 11:30 a.m. and observed the Ryder
truck parked (735). Kelley positioned himself about a block
away, making periodic “swings” past the truck (736). At
approximately 1:00 p.m., he observed a black Mercury parked,
near the truck (736). A short time later, the black Mercury
7, Marchese was permitted to testify, over objection, that in March 1977
Gillette referred to the Gower Street home as being Herman's (213), Herman is
the alleged pseudonym for Salvatore Lombardi,
Later that evening, Gillette allegedly called Marchese and asked him to
come over the following morning to drive Gillette to the parked truck, Gillette
suid Herman had delivered the material to the plant and everything was all
right (222).
However, Case Agent Nargi testified that notwithstanding the extensive
surveillance of said premises (709), Lombardi was never seen leaving these
premises (703, 710),
a
7
stopped at a stop sign adjacent to Kelley's observation point
(736). Kelley identified the driver as defendant Romano (739).
At 2:00 p.m., DEA Agent Hayward observed the Ryder truck
leave, followed by the black car (951).
Agent Kelley began driving toward the truck's location
when he observed the Ryder truck pass down the street in the
opposite direction (815). This allowed him a second or two to
glance at the driver (810), Due to lack of recognition (817-818),
Kelley identified the driver in his official report as John Doe #5
(817). Approximately six weeks later, on December 8, 1977
(819), Kelley identified John Doe #5* as Salvatore Lombardi
(714, 818).
At 6:20 p.m., DEA Agent Nargi saw the truck leave the
area of Gower Street (645), An hour later, the truck was again
spotted, but Agent Nargi could not identify any of the truck’s
occupants (646).
Gillette called Marchese that day to say Herman had moved
the truck to Brooklyn, but brought it back because he thought
he was being followed (221). He called again to say Herman had
delivered the “material” to the plant (222).
On November 14, 1977, in the vicinity of 140 Johnson
Street, Staten Island, Agents Doland and Maguire stopped a
van driven by defendant Kassebaum and placed him under
arrest (867),
Armed with a search warrant for the premises at 132 Ellis
Street, the agents drove to said location, entered the premises
and discovered a laboratory on the second floor of the building
(868).
4. In a report (exhibit 3500-19) Agent Kelley referred to the driver of the
truck us John Doe #5 as late as December 19, 1977 (822, #49),
The house on Gower Street was under periodic surveillance
from May 1977 to November 1977. No agent ever claimed to see
Lombardi enter or leave the house during this period (709-710).
No witness testified that he observed Lombardi at 132 Ellis
Street, the alleged location of the laboratory.
The only testimony that Lombardi had any contact with the
other defendants was a post-conspiracy obervation of Lombardi
and Romano leaving Brooklyn's DelRio Diner together on
February 28, 1978 (752), months after the end of the alleged
conspiracy’, and an assertion that Lombardi and Romano were
simultaneously presented at a Brooklyn social club (888).
B. The Arrest
On March II, 1978, Agent Maguire took Salvatore
Lombardi into custody pursuant to an indictment warrant issued
in the Eastern District of New York. The arrest was made
outside 182 Gower Street (889). While taking pedigree
information from Lombardi, Agent Maguire ascertained that
Lombardi lived at 182 Gower Street and also maintained an
additional residence in Florida (893).
Motion to Dismiss
After the prosecution rested (1115), defense counsel moved,
pursuant to Rule 29, for a dismissal of the charges. Judge
Neaher denied the motion, except to the extent of dismissing
against defendant Romano,
The Government's Summation
During his closing argument, Assistant United States
Attorney Appleby, beyond a proper marshalling of the evidence
9, The indictment indicates the conspiracy lasted from May 5, 1977 to
December &, 1977,
and arguing inferences he believed should be drawn from the
evidence, committed serious error.
In an obvious effort:to influence the jurors and appeal to
their emotions, Prosecutor Appleby made frequent references,
over objection, to “narcotics” (1220). Despite the court’s
admonition (1221) to him and to the jury that the case involved
a controlled substance, not narcotics, Appleby persisted by
asking in open court;
“As an abbreviation from now on, may | refer to
it as narcotics with the understanding that | am
referring to Quaaludes?” (1221).
Still later, Appleby identified the DEA agents’ job as
“narcotics, controlled substances investigations” (1247), further
confusing these two substances in the jury’s mind.
In the same vein, he reminded the jury that there are many
“illegal traffickers in controlled substances” (1248) in the city
and, without support, argued that the arrest in this case
prevented ten million dollars worth of controlled substances
from “hitting the streets of our city” (1223).
The prosecution repeatedly vouched for the credibility and
truthfulness of its witnesses (1219, 1226, 1248) with statements
that their testimony was “corroborated 100%”! (1227-1228) or
“proved 100%" (1241) and stated their credibility could not be
questioned (1226).
Appleby went one step further by indicating his own, as
well as the agents’ firm belief in Lombardi’s guilt by stating that
Agent Kelley:
10. This error was repeated in Appleby’s rebuttal summation (1517), and
Judge Neaher once again admonished him not to argue in this vein.
10
“does not have to get up on the stand and
implicate somebody who is innocent, as opposed
to somebody who is truly involved in a
conspiracy.” (1248).
Despite warnings, Appleby read from transcripts not in
evidence (1238, 1259) and interjected comments not supported
by the record (1221, 1223, 1232).
At the same time, Appleby deprecated defense counsel by
pointing out that the entire defense effort “proved nothing” for
“they [didn’t have] anything to work with in this case...”
(1253), thus leaving the jury with the erroneous impression that
the defense had the burden of proof in this case.
In addition, he attacked Mr. Newman’s cross-examination
of Agent Kelley as “just a gimmick” (1251) and claimed that if
Lombardi had been identified at an earlier point in time, Mr.
Newman would have claimed the DEA report had been “forged”
(1251).
Appleby’s most grievous error was in assuring the jury that
even Mr. Newman, Lombardi’s defense counsel, had to agree
with the prosecutor that Herman was “certainly guilty” (1258).
Once again the trial judge admonished the prosecutor upon
the inflammatory nature of his summation (1258).
Beyond his improper vouching for the credibility of the
DEA agents during his rebuttal summation, Mr. Appleby
referred to the requirement under the Jencks Act of turning over
the agents’ reports to defense counsel (1520). Defense counsel
moved unsuccessfully for a mistrial (1522).
Furthermore, after Mr. Newman properly argued the
unlikeliness of Lombardi’s having illegally parked a_ truck
containing the precursors facing in the wrong direction, the
oe
n
government prosecutor improperly denigrz*ed the argument not
with facts, but with name-calling by referring to it'as “another
trick, another gimmick, an attempt to divert. your [the jury’s]
attention from the real issues in the case.” (1527-1528).
The Verdict
On August 18, 1978, the jury returned a verdict of guilty
against Lombardi and the remaining co-defendants.
The Sentence
On November 3, 1978, Judge Neaher sentenced appellant to
a term of five years’ imprisonment, probation and a fine. The
appellant is presently at liberty under the terms and conditions
of bail pending appeal.
12
REASONS FOR GRANTING THE WRIT
I.
THE GOVERNMENT’S INTRODUCTION OF
CONVERSATIONS BETWEEN MARCHESE AND THE
NON-TESTIFYING CO-DEFENDANT GILLETTE WAS
ERROR AND DENIED PETITIONER LOMBARDI A FAIR
TRIAL.
A. The Evidentiary Hearsay Standard
The trial judge erred in allowing petitioner Lombardi’s case
to go to the jury for consideration along with alleged co-
conspirators’ out-of-court statements since the Government
failed to establish by sufficient independent, non-hearsay
evidence that petitioner Lombardi had participated in the
conspiracy.!!
It is a firmly established principle that before statements
concerning one alleged conspirator made by another alleged
conspirator may be considered as evidence against the non-
declarant, the prosecution must prove by independent evidence
that the defendant had both the knowledge of the intended goals
of the conspiracy and was an active participant in the
conspiracy. Glasser v. United States, 315 U.S. 60, 74, 62 S. Ct.
457, 467 (1942); United States v. Geaney, 417 F. 2d 1116 (2d
Cir.), cert. denied sub nom. Lynch v. United States, 397 U.S.
1028, 90 S. Ct. 1276 (1969).
Since an entire case cannot be put in simultaneously,
concededly the hearsay may be admitted at trial “subject to
11. We also contend that by introducing what the non-testifying Gillette
said on August 24th to Marchese, through Marchese’s testimony, counsel for
Lombardi was deprived of his right to cross-examine the declarant, thereby
depriving Lombardi of his Sixth Amendment rights of confrontation and the
effective assistance of counsel. This aspect of the petition is covered in Part B
herein.
13
connection”. However, at the close of the Government’s:case, the
court must determine whether the prosecutor had independently
provided the requisite connection by proving the defendant’s
participation in the conspiracy. United States v. Ziegler, 583 F.
2d 77, 80 (2d Cir. 1978).
In United States v. Nixon, 418 U.S. 683, 701, 94 S. Ct.
3090, 3104 n. 4 (1974), this Court held that a condition
precedent to such admissibility is a demonstration, by clear and
convincing evidence, establishing the existence of a conspiracy at
least sufficient to take the conspiracy count to a jury.
Notwithstanding this clear and unequivocal enunciation of
the evidentiary standard, the Second Circuit boldly refuses to
follow it under the principles of stare decisis. As Judge Friendly,
writing for the court in United States v. Mangan, 575 F. 2d 32,
42 (2d Cir. 1978), made clear, the Second Circuit is aware of this
standard, but continues to apply a mere “fair preponderance”
standard originally set forth in United States v. Geaney, 417 F.
2d. Other circuits are mindful of the Nixon standard and
purport to apply it. See, e.g., United States v. James, 590 F. 2d
575, 580-581 (Sth Cir. 1979), cert. denied, 99 S. Ct. 2836.
We respectfully submit that the case at bar affords this
Court the opportunity to clarify or modify this branch of the
Nixon decision by indicating whether the Second Circuit’s
refusal to follow the Nixon holding is unwarranted. This is
particularly the case since, even under the lenient Geaney
standard, the court of appeals believed the case against
petitioner Lombardi to be a “close case.” See United States v.
DiPalermo, et al., slip op. 4295 at 4304.
The standard for assessing whether the independent
evidence is legally sufficient to permit the affirmative use of what
would otherwise be hearsay has been held, in the Second Circuit,
to be:
14
“a fair preponderance of the evidence
independent of the hearsay utterances.” United
States v. Geaney, supra, at 1120.
While the defendant’s knowing participation in a conspiracy
may, of course, be established by circumstantial evidence,
United States v. Manfredi, 488 F. 2d 588 (2d Cir. 1973), cert.
denied, 417 U.S. 936, 94 S. Ct. 2651, there still must be a
competent and compelling evidentiary basis for inferring that the
defendant knew about the enterprise and actively participated in
it. United States v. DiStefano, 555 F. 2d 1094, 1103 (2d Cir.
1977); United States v. Cirillo, 499 F. 2d 872, 883 (2d Cir. 1974),
cert. denied, 419 U. S. 1056 (1974); United States v. Stanchich,
550 F. 2d 1294, 1298 (2d Cir. 1977).
The only non-hearsay evidence introduced by the
Government at trial, which arguably could be considered in
determining Lombardi’s knowing participation in a conspiracy
to manufacture quaaludes, can be quickly noted: (1) DEA agents
observed a Ryder truck and a car rented by defendant Romano!2
parked near 182 Gower St.; (2) defendant Gillette visited 182
Gower St; (3) a person, later identified as Lombardi, was briefly
observed driving the Ryder truck; and (4) defendants Romano
and Lombardi were observed at a diner several months after the
conclusion of the conspiracy.
Concededly the proffered independent evidence must be
viewed together and not in isolation. United States v. Stanchich,
supra, at 1300; United States v. Geaney, supra, at 112I1.
Even when the trial evidence is construed in the light most
favorable to the Government, it is patently clear that the
12. The case against Romano was dismissed by the court following the
conclusion of the Government's case. Accordingly. the use of Romano's
activities as a basis for inferring criminal conduct on the part of Lombardi is
unavailing.
15
prosecutor failed to establish by a “fair preponderance” that
Lombardi had knowledge of the intent to manufacture
quaaludes and participated in the enterprise.
In view of the fact that Judge Neaher dismissed the case
against Romano, observations of Romano and Lombardi are
not at all incriminating. The observation of defendant Gillette’s
activity near 182 Gower Street, in a residential section of Staten
Island, is likewise not incriminating.
While there was no evidence presented at trial that
Lombardi was living at 182 Gower Street during the period, in
fact the only evidence before the court was to the contrary!},
proof of association with alleged conspirators or even knowledge
of the conspirators’ activities, without morc, cannot be the basis
for admission of hearsay statements. United States v. Steinberg,
525 F. 2d 1126, 1134 (2d Cir. 1974); United States v. Tramunti,
500 F. 2d 1334, 1348 (2d Cir. 1974).
What is required is proof of a knowing participation in the
unlawful venture, United States v. Cirillo, supra, at 884-885,
which is totally lacking in the instant case.
The Government places heavy reliance on the agent’s
fleeting glimpse of a man, presumed to be Lombardi, behind the
wheel of the Ryder truck to infer knowing participation.
That this reliance is misplaced becomes apparent when it is
remembered that all the chemicals the Government alleges to
have been in the truck were non-controlled substances which
may be freely purchased and transported by anyone.
13. Marchese testified that Gillette informed him that Herman, assuming
the Government is correct that Herman is indeed Lombardi, was in Florida
(216). Even though 182 Gower Street was under heavy surveillance during this
period and several defendants were observed there, no agent ever claimed to
sce Lombardi enter or leave.
16
There was no evidence Lembardi knew what the contents of
the truck were or, even if he did, that he intended to transport
the non-controlled precursors in an effort to affirmatively assist
in their manufacture into an illicit controlled substance. All that
can be proven by the agent's identification is that Lombardi was,
at one time, in close proximity to the raw chemicals.
Mere pxesence in the vicinity of the chemicals falls far short
of making Lombardi a participant in an illegal conspiracy. Hicks
v. United States, 150 U.S. 422 (1893); United States v. Burgos,
579 F. 2d 747 (2d Cir. 1978); King v. United States, 402 F. 2d
289, 291 (10th Cir. 1968).
In the instant case, the Government produced insufficient
non-hearsay evidence to prove Lombardi had knowledge of the
conspiracy and knowingly participated in it with the intent to
further its goals.
Since almost all of the evidence offered against Lombardi
was devastating hearsay declarations of a conspirator as related
at trial by a paid informant, it cannot be said that any error in
admitting the testimony was harmless. Chapman v. California,
386 U.S. 18; United States v. Ruffin, 575 F. 2d 346, 358-359 (2d
Cir. 1978); United States v. Check, 582 F. 2d 668, 684 (2d Cir.
1978).
We also contend Marchese’s recounting at trial, what the
non-testifying co-defendant Gillette allegedly said to him, about
“Herman”, should have been excluded on the basis that these
statements were not uttered during the pendency and in
furtherance of the conspiracy charged.
The law of conspiracy is clear that not every statement
uttered by an alleged co-conspirator during the life of the
conspiracy is ipso facto a statement in the course and
furtherance of the conspiracy.
mere
17
“The fact that one conspirator tells another
something relevant to the corispiracy does not
alone make the declaration competent; the
declaration must itself be an act in furtherance of
the common object; mere conversation between
conspirators is not that... .” United States v.
Nardone, 106 F. 2d 41, 43 (2d Cir.), rev’d on
other gds., 308 U.S. 338 (1938).
See also, Krulewitch v. United States, 336 U.S. 440, 443-444
(1949); Dutton v. Evans, 400 U.S. 74, 81, 91 S. Ct. 210, 215
(1970); United States v. Birnbaum, 337 F. 2d 490, 494-495 (2d
Cir. 1964); cf: United States v. Manarite, 448 F. 2d 583, 590-591
(2d Cir. 1971); United States v. Grant, 462 F. 2d 28,33 (2d Cir.
1972); United States v. Mangan, 575 F. 2d at 43-44.
Turning to the challenged statements, the first is Marchese’s
claim Gillette told him “Herman” (Lombardi) asked Gillette if
he could supply some chemicals (68).
The question of who asked Gillette to acquire chemicals was
irrelevant and immaterial to whether Marchese wished to assist
in such a venture. Clearly, this paid informant witness utilized
the fact of his conversation with Gillette to insert Lombardi into
the case. Such a statement could not further the conspiracy
claimed to exist.
At p. 77 of the trial transcript, Marchese was permitted to
testify, over objection, that:
“He [Gillette] said his friend Herman had
manufactured qualudes (sic) once before... .”
Marchese’s response to the question:
“Did he [Gillette} tell you [Marchese] what he
wanted to with those chemicals?” (77).
was unresponsive to the question propounded. Marchese stated
Gillette’s answer did not reflect a conversation to further the
conspiracy. This statement permitted a clever, paid witness an
opportunity to offer evidence against one defendant and to
improperly introduce “other crimes” evidence.
“Gillette told me he had spoken to his friend
Herman and that Herman was not living in New
York all the time. He lived in Florida, but he did
have a house in Staten Island where his daughter
lived and when he was in New York he spent
time at the house in Staten Island.”
Once again general hearsay converse’ 1, not in furtherance
of the conspiracy, was permitted into evidence in deprivation of
Lombardi’s right to a fair trial.
We think it is clear from these examples that the co-
conspirator exception to the hearsay rule was stretched beyond
its true limits [see Weinstein’s Evidence, Sec. 801(d)(2)(E01)] by
permitting a dispensation of the “in furtherance” component of
the hearsay rule exception.
Such a departure permitted the introduction of devastating
evidence against Lombardi, depriving him of a fair trial.
B. Denial of the Right of Confrontation
Even assuming arguendo this Court ts persuaded the
Government properly carried its burden of establishing the
existence of a conspiracy and peiitioner’s knowing participation
in it sufficient to overcome evidentiary hearsay objections to the
use of Marchese’s testimony, we submit the admission of that
evidence violated petitioner's Sixth Amendment right of
confrontation.
Since at least this Court’s decision in Dutton v. Evans, 400
U.S. 74. 80. 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970), the law has
»
19
been clear that the Sixth Amendment’s confrontation clause and
the co-conspirator exception to the hearsay rule are not co-
extensive. United States v. Puco, 476 F. 2d 1099, 1103 (2d Cir.),
cert. denied, 414 U.S. 844 (1973); United States v. Oaies, 560 F.
2d 45, 80-84 (2d Cir. 1977); United States v. Mangan, 575 F. 2d
32. 42, 44-45 (2d Cir. 1978): United States v. Nelson, 603 F. 2d
42, 46 (8th Cir. 1979); United States v. Lipscomb, 435 F. 2d 795,
802 (Sth Cir. 1970), cert. denied, 401 U.S. 980 (1971).
Thus where, as here, the defendant was confronted with and
could cross-examine only the informant Marchese concerning
what the declarant alleged said to Marchese vis-a-vis petitioner,
it is clear that the opportunity to confront and cross-examine the
declarant was denied.
We are not suggesting that in every instance where the co-
conspirator exception is invoked and relied upon as a basis for
the introduction of otherwise hearsay testimony that there has
been a violation of the constitutionally grounded right of
confrontation. Rather, we contend that under the facts of this
case, as in many other cases, there has been a violation in a joint
trial'4 setting.
The need to explore the intersection between the co-
conspirator exception to the hearsay rule and the right of
confrontation surely raises a valid question for this Court’s
consideration. There is certainly a need, at the nisi prius level,
for just this type of guidance from the Court.
In the context of this case, the admission of Marchese’s
testimony was not harmless error. Cf. Schneble v. Florida, 405
U.S. 427. For this reason, a writ of certiorari to review the issue
should be granted.
14. Petitioner's motion for a severance was denied by the trial court.
20
IN A CONCEDEDLY CLOSE CASE, MULTIPLE
IMPROPRIETIES IN THE PROSECUTOR'S SUMMATION
DEPRIVED PETITIONER OF A FAIR TRIAL.
Whether, as contended by petitioner, the trial evidence was
legally insufficient to establish guilt or, as the Second Circuit
recognized, the case was at best a “close” one barely sufficient to
withstand a Rule 29 motion (see United States v. DiPalermo, et
al., supra, at 4304), in such an evidentiary context the impact of
the prosecutor's multiple improprieties at the trial and before the
jury surely were sufficient to improperly tip the scales in favor of
conviction.
Certainly it is true that wide latitude is given to the
prosecution in rendering its summation. United States v. Suarez,
588 F. 2d 352, 354 (2d Cir. 1978); United States v. Dibrizzi, 393
F. 2d 642, 646 (2d Cir. 1968).
However, there are limits of proper advocacy beyond which
counsel may not stray. When counsel represents the
Government, he is held to a still higher standard:
“The United States Attorney is the
representative not of an ordinary party to a
controversy, but of a sovereignty whose
obligation to govern impartially is as compelling
as its obligation to govern at all; and whose
interest, therefore, in a criminal prosecution is
not that it shall win a case, but that justice shall
be done. As such, he is in a peculiar and very
definite sense the servant of the law, the twofold
aim of which is that guilt shall not escape or
innocence suffer. He may prosecute with
earnestness and vigor — indeed, he should do so.
But, while he may strike hard biows, he is not at
21
liberty to strike foul ones. It is as much his duty
to refrain from improper methods calculated to
produce a wrongful conviction as it is to use
every legitimate means to bring about a just one.
It is fair to say that the average jury, in a
greater or less degree, has confidence that these
Obligations, which so plainly rest upon the
prosecuting attorney, will be faithfully observed.
Consequently, improper suggestions,
insinuations, and, especially, assertions of
personal knowledge are apt to carry much weight
against the accused when they should properly
carry none.” Berger v. United States, 295 U.S. 78,
88, 55 S. Ct. 629, 79 L. Ed. 1314, 1321 (1935).
It is clear from a reading of Prosecutor Appleby’s
summation that it was his intention to travel the “law road” in
an effort to compensate for the evidentiary deficiencies
surrounding the case against petitioner and to supplement an
otherwise weak case.
Thus, in United States v. Grunberger, 431 F. 2d 1062 (2d
Cir. 1970), the prosecutor's unobjected-to statement at 1068:
“I don’t know of a case where the evidence
has been as strong as it has been in this case to
establish the guilt of any defendant.”
was found to be error because of the impropriety of an advocate
expressing his personal opinion of an accused's guilt, and
because of the prosecutor's vouching for and placing the prestige
of the prosecutor's office behind an opinion contested by the
rigors of cross-examination. Cf. United States v. Morris, 568 F.
2d 396 (Sth Cir, 1978),
22
In United States v. Drummond, 481 F. 2d 62 (2d Cir. 1973),
the prosecutor's bolstering of the credibility of his own witnesses
and vouching for the credibility of his witnesses was found
improper, requiring a new trial.
In United States v. White, 486 F. 2d 204 (2d Cir. 1973), in
an opinion by Chief Judge Kaufman, a panel of the court of
appeals found the prosecutor's argument that the defendant lied
to the jury and his repeated indications that the defense was
fabricated were clearly error and a departure from professional
propriety. ABA Code of Professional Responsibility, Final
Draft, 1969 E.C. 7-13; see also, ABA Standards Relating to the
Administration of Criminal Justice, Section 5.8'° (1974).
However, it was not held to be reversible error because of the
overwhelming evidence produced at trial. The case at bar has
already been held nor an overwhelming case by the court of
appeals.
15. Section 5.8 states:
“(a) The prosecutor may argue all reasonable inferences
from evidence in the record. It is unprofessional conduct for
the prosecutor intentionally to misstate the evidence or
mislead the jury as to the inferences it may draw,
(b) It is unprofessional conduct for the prosecutor to
express his personal belief or opinion as to the truth or
falsity of any testimony or evidence or the guilt of the
defendant,
(c) The prosecutor should not use arguments calculated
to inflame the passions or prejudices of the jury,
(d) Ihe prosecutor should refrain trom argument which
would divert the jury from its duty to decide the case on the
evidence, by injecting issues broader than the guilt or
innocence of the accused under the controlling law, or by
making predictions of the consequences of the jury's
verdict,”
23
Similarly, in United States v. Burse, 531 F.2d 1151 (2d Cir.
1976), a series of prosecutorial summation abuses, including
improper vouching, required a reversal and remand for a new
trial. The Second Circuit in Burse noted at 1155 that the
minimal strength of the Government’s case against Burse
required the remand for a new trial. ’
Likewise, in United States v. Suarez, 588 F. 2d 352 (2d Cir.
1978), while prosecutorial error in summation did not require a
new trial, this was so only because of the panel’s finding that the
error was harmless.
More vigorous Government summation arguments have
been found acceptable, or at least not reversible, where the
response was instigated by the defendant’s summation. See, e.g.,
United States v. Brawer, 482 F. 2d 117 (2d Cir. 1973); United
States v. Bivona, 487 F. 2d 443 (2d Cir. 1973).
Turning to the summation in question, the overwhelming
number of errors occurred during Mr. Appleby’s initial
summation and not during the rebuttal summation, when the
“fair comment” theory of Brawer, Bivona, and its progeny
would have some applicability.
In the case at bar, Appleby’s frequent references to
“narcotics” and the DEA agents as “narcotics” agents were
unprovoked. They constituted a cold and calculated attempt to
whip the jury's natural abhorence for narcotic drugs and the
purveyors thereof into an improper and emotional anti-
defendant hostility.
Similarly, the claim that this arrest prevented ten million
dollars worth of controlled substances from “hitting the streets
of our city” was not only an argument predicated upon facts
outside the record, but one which again appealed to the hearts,
rather than the heads, of this lay jury. People v. Ashwall, 39
N.Y. 2d 105, 383 N.Y.S. 2d 204 (1976); Williams v. Henderson,
24
451 F. Supp. 328, 332 (E.D.N.Y. 1978), aff'd, 584 F. 2d 974 (2d
Cir. 1978).
Aware of the shaky, non-hearsay evidence proffered against
petitioner Lombardi, Mr. Appleby, we submit, improperly
vouched for his witnesses by arguing their testimony was
corroborated 100% or proved 100%. He further improperly
argued that the credibility of the prosecution’s witnesses could
not be questioned; that they would not frame innocent people.
Cf. United States v. Bess, 593 F. 2d 749, 753-755 (6th Cir. 1979).
Not content to build his own case up by assuming the role
of unsworn witness, Appleby then improperly attacked defense
counsel on a personal basis, claiming they had nothing to work
with in this case and that the cross-examination of a DEA agent
by petitioner’s counsel, Mr. Newman, was “just a gimmick.” Cf.
United States v. Leon, 534 F.2d 667, 668 (6th Cir. 1976) (an
opinion by then Circuit Judge, now Solicitor General McCree).
Unsatisfied with personal name-calling and _ pointed
deprecation of his adversary, Appleby then hypothesized that if
petitioner had been identified by name rather than as “John Doe
#5”, Lombardi’s counsel would have argued the report was
forged.
To imply, as Appleby did, that Mr. Newman would accuse
the Government of criminal wrongdoing could only be
interpreted as an observation by the Government of the ethics
and morality of its adversaries, thereby reducing the
effectiveness of summations not yet even delivered. Cf. United
States v. Agueci, 310 F. 2d 817, 836-837 (2d Cir. 1962), cert.
denied, 372 U.S. 959 (1963).
Further, this implication was an infringement upon
petitioner’s Sixth Amendment guarantee of effective assistance
of counsel. Cf. Donnelly v. DeChristofaro, 416 U.S. 637, 94 S.
Ct. 1868 (1974).
25
Mr. Appleby likewise improperly argued that:
conviction and remand for a new trial.
best, a weak case against Lombardi.
gimmick on Mr. Newman’s part.
credible proof.
“Whoever Herman is — if there is one thing
that Mr. Newman and I could agree upon, is
that whoever Herman is, he’s certainly guilty.”
We respectfully submit that by arguing that a lawyer knows
his client is guilty, either directly or indirectly, is unfair and
constitutionally improper. United States v. Frazier, 580 F.2d 229
(6th Cir. 1978); People v. Tassiello, 300 N.Y. 425 (1950).
In a particularly weak case such as this one, an argument of
this nature, whether in isolation or in tandem with the other
summation errors, requires a vacatur of the judgment of
In the rebuttal summation Mr. Appleby told the jury how
the DEA reports were turned over to the defense for cross-
examination (1022), thereby creating the impression that
reports not used at trial were corroborative of the agents’
testimony. This entire foray into the use of Jencks Act material
was improper and clearly engaged in to bolster what was, at
Finally, after Mr. Newman properly argued the
unlikelihood of Lombardi, a Gower Street resident, allowing a
truck containing precursors to remain illegally parked at a time
when the alleged conspirators feared the presence of “heat” and
apprehension, the prosecutor responded not with fact or logical
argument, but with the claim this was but another trick or
Thus we think it clear that in the initial summation and on
rebuttal the prosecutor in this case attempted to improperly fill
evidentiary gaps or weaknesses with invective rather than solid,
26
The need for a new trial, rather than an admonition of this
prosecutor’s multiple ravings, is warranted for the reasons
articulated by Judge Frank in United States v. Antonelli
Fireworks Co., 155 F. 2d 631 (2d Cir., Frank J., dissenting),
cert. denied, 329 U.S. 742 (1945), and reaffirmed by Chief Judge
Kaufman in United States v. Bivona, 487 F. 2d 443 at 447:
“‘The deprecatory words we use in our
opinions . . . are purely ceremonial.’ Government
counsel, employing such tactics, are the kind
who, eager to win victories, will gladly pay the
small price of a ritualistic verbal spanking. The
practice of this court — recalling the bitter tear
shed by the Walrus as he ave the oysters —
breeds a deplorably cynical attitude towards the
judiciary.”
The time has come, in the context of reviewing the fairness
of a trial in a federal district court, for this Court to reaffirm its
holding in Berger v. United States, supra, and the principle that
prosecutorial overreaching during this critical phase of the
criminal trial will not be tolerated. Where, as here, the reviewing
intermediate appellate court finds the proof of guilt as to this
petitioner not only not overwhelming, but rather a “close case”,
a vacatur of the judgment and remand for a new trial is
constitutionally warranted.
CONCLUSION
For the reasons stated, we respectfully pray that a writ of
certiorari to review the judgment of the United States Court of
Appeals for the Second Circuit be granted.
Respectfully submitted,
Roger Bennet Adler
NEWMAN & ADLER, P.C.
Attorneys for Petitioner
la
APPENDIX A — OPINION OF UNITED STATES COURT
OF APPEALS FOR THE SECOND CIRCUIT
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
>
Nos. 962, 963, 964, 987—August Term, 1978.
(Argued May 2, 1979 Decided August 21, 1979)
Docket Nos. 78-1408, 78-1413, 79-1032, 79-1046
-
UNITED STATES OF AMERICA,
Appellee,
—_—V.—
JOSEPH DIPALERMO, a/k/a “Joe Beck”, SALVATORE LOM.
BARDI, a/k/a “Herman”, GEORGE GILLETTE and ALAN
KASSEBAUM,
Appellants.
Before:
GURFEIN and MESKILL, Circuit Judges,
and WYZANSKI", District Judge.
>
Appeals from judgments of conviction entered in
the United States District Court for the Eastern Dis-
+
Hon. Charles E. Wyzanski, Jr., of the United States District
Court for the District of Massachusetts, sitting by designation.
2a
Appendix A
trict of New York, Edward R. Neaher, Judge, after a
three-week jury trial. Affirmed.
>
MICHAEL ROSEN, New York, New York
(Roy M. Cohn, Saxe, Bacon & Bolan,
P.C., of counsel), for Appellant Di-
Palermo.
ROGER BENNET ADLER, New York, New
York (Gustave H. Newman, New
York, New York, of counsel), for Ap-
pellant Lombardi.
RAYMOND B. GRUNEWALD, New York, New
York, for Appellant Gillette.
HARVEY L. GREENBERG, Brooklyn, New
York (Frank T. Geoly, Brooklyn, New
York, of counsel), for Appellant
Kassebaum.
RICHARD APPLEBY, Assistant United States
Attorney, Eastern District of New
York (Edward R. Korman, United
States Attorney, Harvey M. Stone,
Assistant United States Attorney,
Vivian Shevitz, Assistant United
States Attorney, Eastern District of
New York, of counsel), for the United
States of America.
~~
PER CURIAM:
Joseph DiPalermo, Salvatore Lombardi, George Gil-
lette and Alan Kassebaum appeal from judgments of
conviction entered in the United States District
nS eee
3a
Appendix A
Court for the Eastern District of New York, Edward
R. Neaher, Judge, after a three-week jury trial. All
of the appellants- were convicted of conspiring to
manufacture and possess with intent to distribute
methaqualone, commonly known as “quaaludes,” in
violation of 21 U.S.C. §846. Kassebaum was also
convicted of possession of methaqualone with intent
to distribute, 21 U.S.C. § 841(aX1). Finding no revers-
ible error, we affirm the judgments of conviction.
Viewing the evidence in the light most favorable
to the government, Glasser v. United States, 315
U.S. 60, 80 (1942), the government showed that the
following series of events took place. Beginning in
April of 1977, one Vincent Marchese, a paid inform-
ant for the Drug Enforcement Administration, insin-
uated himself into a conspiracy to manufacture quaa-
ludes. On April 15, Marchese met with appellant Gil-
lette at Marchese’s home in Staten Island. Gillette
told Marchese that he had a friend named “Herman”
who had manufactured quaaludes in the past but
who needed a new supply of chemicals in order to
stay in the business. “Herman” was apparently able
to come up with the money, but had thus far been
unable to come up with a connection leading to the
necessary supplies—approximately 490 pounds of
various chemicals. Marchese agreed to locate the
needed source and immediately called the DEA,
which in turn contacted the Berg Chemical Company.
Marchese then informed Gillette that he had been
successful in his search, and that the price of the
chemicals would be $10,000—a price to which “Her-
man” agreed. Marchese and Gillette picked up the_
chemicals on June 23, 1977, and took them to a pre-
viously secured warehouse in New Jersey. The chemi-
cals having been purchased, the next step was to
4a
Appendix A
create a manufacturing laboratory—a task to which
“Herman” was assigned.
Much to Marchese’s and Gillette’s consternation,
however, “Herman,” who by this time had been iden-
tified by the DEA as appellant Lombardi, was unable
to locate the needed facility. Almost four months
elapsed before the laboratory began to take shape. In
the middle of September, Ryland Luttrell, caretaker
and watchman at 135 Ellis Street in Staten Island,
was visited by three men, one of whom Luttrell sub-
sequently identified as appellant DiPalermo. The vis-
itors took a look around the premises—no doubt tak-
ing note of the fact that 135 Ellis Street is in a re-
mote area of Staten Island, that the property occu-
pies about 13 acres of land, and that situated there-
on was a rather run-down old house, as well as a
dock. Luttrell observed DiPalermo get out of the car,
but he was approached only by DiPalermo’s two com-
panions. These two men asked Luttrell certain ques-
tions about the condition of the dock and the depth
of the water, reported back to DiPalermo, returned
to ask a few more questions, again returned to the
car, and drove off.
Approximately a month later, Gillette was _ ob-
served by the DEA at the Ellis Street location. When
he left the premises, DEA agents followed him into
lower Manhattan, observed him make a series of tele-
phone calls from a public booth and, fifteen minutes
after making the calls, being joined by DiPalermo.
One of the agents strolled by Gillette and DiPalermo
and overheard the following conversation:
DiPalermo: It is a lot of money.
Gillette: I know it is a lot of money. That’s
why you've got to straighten it out.
“Sa
Appendix A
After about fifteen minutes, DiPalermo left. A week
later, Gillette was again observed at the Ellis Street
site. Upon leaving, he was again followed to the
same street corner in lower Manhattan where he
again met with DiPalermo. Again a DEA agent
walked by them, this time overhearing DiPalermo
saying to Gillette: “This is what you do.”
Five days later, on October 31, the chemicals were
moved from the New Jersey warehouse to 135 Ellis
Street, the entire day’s activities being monitored by
the DEA. Gillette and Marchese began the day by re-
moving the chemicals from the New Jersey ware-
house and depositing them into a Ryder rental truck.
Gillette then drove the truck to Lombardi’s Staten
Island address, with Marchese following in Gillette’s
car. Gillette explained to Marchese that the truck
was being left there so that “Herman” could keep an
eve on it. Shortly after that, DEA agents observed
Lombardi driving the truck on a route leading di-
rectly to 135 Ellis Street. At a certain point in its
travels, however, the truck began to vary its speeds
considerably and take what are commonly referred to
as “evasive maneuvers.” Eventually, the truck worked
its way back to Lombardi’s residence. Later that
night the truck was observed at 135 Ellis Street,
where the chemicals were unloaded and taken into
the house. Gillette later explained to Marchese that
“Herman” had successfully delivered the chemicals to
the soon to be operating laboratory. Gillette also ex-
plained to Marchese that the DEA surveillance had
been picked up during the attempted delivery of the
chemicals, that he was troubled by this development,
and that he would have to talk to his “friend in New
York” about the situation. His “friend in New York”
6a
Appendix A
turned out to be named “Joe Beck,” which is appar-
ently a name used on occasion by appellant Di-
Palermo.
Because none of the participants in the scheme
had sufficient knowledge of chemistry to go about
manufacturing marketable quaaludes, they next set
about the task of recruiting someone who did. Appel-
lant Kassebaum, a licensed New York pharmacist, ap-
parently fit the bill. Both Luttrell and various DEA
agents observed Kassebaum at the 135 Ellis Street
site on a number of occasions. Upon leaving Ellis
Street on one such occasion, he was followed by DEA
agents who subsequently overheard him state over a
telephone: “I finally got something good and nice for
you. It turned color.”' DEA agents subsequently ob-
served Kassebaum purchasing paraphernalia that was
eventually seized at the laboratory.
On November 14 the DEA ciosed in, arresting
Kassebaum a short distance from the Ellis Street lab-
oratory and escorting him back to the premises so
they could execute a search warrant. Kassebaum
broke free, however, ran into the house and closed
the door behind him. The agents, locked out of the
house, determined that Kassebaum had fled to the
bathroom and had begun flushing evidence down the
toilet. They forced their way in and found Kasse-
baum shielding himself behind his German Shepherd.
The agents prevailed, however, took Kassebaum into
custody, and proceeded to search the laboratory. In
the first floor bathroom they discovered a brown
powder which turned out to be methaqualone; during
1 A DEA chemist testified at trial that color is an indication of
the degree of purity of methaqualone.
iii xb nha tbtlastcaavene ar
SP eee eS Tee ne ee
Ta
Appendix A
their search of the rest of the ‘house they seized
more methaqualone, various pieces of laboratory
equipment, and the chemicals that had been pur-
chased by Marchese and Gillette from the Berg
Chemical Company.
In our judgment, only two of the issues raised by
the appellants warrant discussion, those issues focus-
ing on Luttrell’s in-court identification of DiPalermo
and the nature and sufficiency of the evidence to
support the conviction of Lombardi.
After all of the defendants had been arrested, the
DEA interviewed Luttrell regarding his recollection
of the happenings at 135 Ellis Street. He described
an individual who fit the description of Gillette and,
when shown a photograph of Gillette, identified him
as one of the men to whom he had spoken about
renting the Ellis Street facility. At that point, the
DEA put together a spread of photographs, including
photographs of DiPalermo, and asked Luttrell if he
recognized any of the subjects. Luttrell picked out
DiPalermo as someone who had been at the Ellis
Street site, and he related the details of DiPalermo’s
visit. Luttrell subsequently identified DiPalermo dur-
ing the trial as one of the individuals he had seen at
the Ellis Street location.
This Court has recently explained the law as it re-
lates to in-court identifications that have been pre-
ceded by pre-trial photographic identifications in the
following fashion:
A conviction “based on eyewitness identifica-
tion at trial following a pretrial identification by
photograph will be set aside on that ground only
if the photographic identification: procedure was
8a
Appendix A
so impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable misiden-
tification.” . . . “{R]eliability is the linchpin in
determining the admissibility of identification
testimony,” . . . and the court must iook to the
“totality of the circumstances” to determine
whether the in-court identification is_ reliable
even if the pretrial identification procedure was
suggestive.
United States v. Sanchez, slip op. 3901, 3907-08 (2d
Cir. July 19, 1979), quoting Simmons uv. United
States, 390 U.S. 377, 384 (1968); Manson v.
Brathwaite, 432 U.S. 98, 114 (1977); and Neil uv.
Biggers, 409 U.S. 188, 199 (1972). See generally
United States v. Williams, 596 F.2d 44, 48-49 (2d
Cir. 1979); Jackson v. Fogg, 589 F.2d 108, 111 (2d
Cir. 1978); United States v. Moskowitz, 581 F.2d 14,
19-20 (2d Cir.), cert. denied, 99 S.Ct. 204 (1978). In-
cluded in the “totality of the circumstances” are “the
opportunity of the witness to view the criminal at
the time of the crime, the witness’ degree of atten-
tion, the accuracy of the witness’ prior description of
the criminal, the level of the certainty demonstrated
by the witness at the confrontation, and the length
of time between the crime and the confrontation.”
Neil v. Biggers, supra, 409 U.S. at 199-200.
Although DiPalermo’s counsel has pointed to cer-
tain weaknesses in the government’s procedures and
in Luttrell’s identification, it is our judgment that,
with a view toward the “totality of the circum-
stance,” the identification passes muster. Although
the photographic identification procedure is subject
to criticism because there were more photographs of
DiPalermo than of any of the others and because
“PSctets SOR SR eine Sota a
9a
Appendix A
DiPalermo’s photograph had a DEA label, it is never-
theless our conclusion that this did not “give rise to
a very substantial likelihood of irreparable misiden-
tification.” In addition, it is our conclusion that Lut-
trell’s identification of DiPalermo in the courtroom
was a “reliable” one. Luttrell, after all, was respon-
sible for scrutinizing visitors to the Ellis Street loca-
tion, and he had a good deal of time during which to
view DiPalermo. some of which was spent at rela-
tively close range.
As to appellant Lombardi, it is our judgment that
there was sufficient non-hearsay evidence to justify
the admission of statements made by his fellow con-
spirators and that, with this evidence properly ad-
mitted, there was sufficient evidence to support his
conviction. On this issue as well, this Court has on
recent occasion set out the governing law. In United
States v. Lyles, 593 F.2d 182 (2d Cir.), cert. denied,
47 U.S.L.W. 3636 (U.S. Mar. 26, 1979), we said:
When in a criminal case the government
seeks, under the co-conspirator rationale, to in-
troduce as an admission the out-of-court state-
ment of a declarant other than the defendant,
the trial judge must make a preliminary deter-
mination that there is sufficient independent
evidence to establish the following: (1) that a
conspiracy existed .. . ; (2) that the conspiracy
was still in existence at the time the statement
was made ... ; (3) that the declarations were
made in furtherance of the conspiracy ... ; and
(4) that both the declarant and the defendant
participated in the conspiracy. . . . While the
practicalities of proof may require that a par-
10a
Appendix A
ticular statement be admitted subject to connec-
tion, that is, subject to an adequate showing of
the elements just summarized, “if at the close of
the Government’s case the connection has not
been proved, the court must, upon motion, strike
the insufficiently connected item and direct the
jury to disregard it.”
593 F.2d at 194 (citations and footnote omitted).
And in United States v. DeFillipo, 590 F.2d 1228
(2d Cir. 1979), the Court reaffirmed the principle
that participation by the defendant in the alleged
conspiracy must be “established ‘by a fair prepon-
derance of the evidence independent of the hearsay
utterances.” 590 F.2d at 1236, quoting United
States v. Geaney, 417 F.2d 1116, 1120 (2d Cir.
1969), cert. denied, 397 U.S. 1028 (1970). See also
United States v. Ziegler, 583 F.2d 77, 81 n.6 (2d
Cir. 1978); United States v. Stanchich, 550 F.2d
1294, 1297-99 & n.4 (2d Cir. 1977); United States v.
Glazer, 532 F.2d 224, 228-29 (2d Cir.), cert. denied,
429 U.S. 844 (1976); United States v. Wiley, 519
F.2d 1348, 1350-51 (2d Cir. 1975), cert. denied, 423
U.S. 1058 (1976). Compare United States v. James,
590 F.2d 575 (5th Cir.) (en banc), cert. denied, 47
U.S.L.W. 3786 (U.S. June 4, 1979).
Although we believe the case to be close in this
regard, it is our conclusion that this requirement was
met. Lombardi’s repeated associations with the other
members of the conspiracy, especially his involve-
ment with the rental truck that carried the needed
chemicals to the Ellis Street laboratory, provided
strong ground for the conclusion that Lombardi was
involved in an unlawful conspiracy. Although each of
+4 Sn ae ee
Ila
Appendix A
the bits of evidence produced by the government to
support the conclusion that Lombardi was a co-con-
spirator would by itself be equally consistent with in-
nocence, such pieces of evidence are to be viewed
“not in isolation but in conjunction.” United States v.
Geaney, supra, 417 F.2d at 1121. See also United
States v. Monica, 295 F.2d 400, 401 (2d Cir. 1961),
cert. denied, 368 U.S. 953 (1962) (“each of the...
episodes gained color from each of the others”). As
explained by Judge Friendly in United States v.
Stanchich, supra, “[jjudges are not required to exhibit
a naivete from which ordinary citizens are free.” 550
F.2d at 1300. In this light, the Geaney test was met,
and in that light, there was sufficient evidence to
support Lombardi’s conviction.
The other claims put forth by the appellants must
also be rejected. Our review of the record satisfies us
that there was sufficient evidence to support each of
the convictions. Although the comments during sum-
mation by the Assistant United States Attorney in
charge of the trial do not merit our approval, neither
do they warrant reversal in this case. We do caution
the government, however, that “liJn conspiracy cases,
where the liberal rules of evidence and the wide
latitude accorded the prosecution may, and some-
times do, operate unfairly against an_ individual
defendant,” Glasser v. United States, supra, 315 U.S.
at 76, the content and tone of the summation should
be kept closely in check. There is no merit to the
claim by Gillette that his conviction should be re-
versed because he conferred with DEA agents with-
out the presence of his counsel. The record shows
that Gillette initiated the contact and that he was in |
no way prejudiced by its having occurred. See
“12a
Appendix A
Weatherford v. Bursey, 429 U.S. 545 (1977). Di-
Palermo’s sentencing hearing was conducted in accord
with the governing law of this Circuit. See United
States v. Fatico, slip op. ___ (2d Cir. , 1979);
United States v. Fatico, 579 F.2d 707 (2d Cir. 1978).
The remaining claims do not merit discussion.
The judgments of conviction are affirmed.
————
13a
APPENDIX B — ORDERS DATED OCTOBER 25, 1979
DENYING PETITION
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
At a Stated Term of the United States Court of Appeals, in
and for the Second Circuit, held at the United States Court
House, in the City of New York, on the twenty-fifth day of
October, one thousand nine hundred and seventy-nine.
Present:
HON: MURRAY I. GURFEIN,
HON: THOMAS J. MESKILL,
Circuit Judges
HON: CHARLES E. WYZANSKI,
District Judge
Circuit Judges.
Filed October 25, 1979
United States of America,
Plaintiff-Appellee,
JOSEPH DiPALERMO,
SALVATORE LOMBARDI,
ALAN KASSEBAUM,
GEORGE GILLETTE,
Defendants-Appellants.
l4a
Appendix B
78-1408
78-1413
79-1032
79-1046
A petition for a rehearing having been filed herein by
counsel for the appellant, Joseph DiPalmero.
Upon consideration thereof, it is
Ordered that said petition be and it hereby is DENIED.
A. Daniel Fusaro,
Clerk
UNITED STATES COURT OF APPEALS
At a stated term of the United States Court of Appeals, in
and for the Second Circuit, held at the United States Court
House, in the City of New York, on the twenty-five day of
October, one thousand nine hundred and seventy-nine.
UNITED STATES OF AMERICA,
Plaintiff-appellee,
JOSEPH DiPALERMO,
SALVATORE LOMBARDI,
ALAN KASSEBAUM,
GEORGE GILLETTE,
Defendants-Appellants.
Filed October 25, 1979
78-1408
78-1413
a
MOT
“>
1Sa
Appendix B
79-1032
79-1046
A petition for rehearing containing a suggestion that the
action be reheard in banc having been filed herein by counsel for
the appellant Joseph DiPalermo and no active judge cr judge
who was a member of the panel having requested that a vote be
taken on said suggestion.
Upon consideration thereof, it ts
Ordered that said petition be and it hereby is denied.
s/ Irving R. Kaufman
Chief Judge
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