Record and brief — Beltempo v. United States

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- Supreme Court, us] '

FILF

S1-2177 MAY ss

No. ' ALEX Pn oe

In the :

Supreme Court of the United States.

Ocroser Term, 1981.

VINCENT BELTEMPO,

PETITIONER,

vo.

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit.

GERALD ALCH,

Martin G. WEINBERG,

Oren:, Weinsernc & Lawson,

75 Blossom Court,

Boston, Massachusetts 02114.

(617) 227-3700

BATEMAN & SLADE, INC. BOSTON , MASSACHUSETTS

Questions Presented.

1. Whether an application containing facts which are

equally consistent with the existence or non-existence of evi-

dence observed fifty-two days before, support the issuance of a

search warrant predicated exclusively on the legal standard of

a “common sense view.”

2. Whether the Government’s conducting of scientific tests

on physical evidence seized from the petitioner when such tests

would necessarily destroy such evidence and when, without

cause, the arrested petitioner was not put on notice so his due

process right to independent analysis could be actualized man-

dates suppression.

Table of Contents.

Opinion below

Jurisdiction

Statement of the case

Reasons for granting the writ

The decision below raises the significant problem of

distinguishing when the proper application of the

“common sense view” to facts equally consistent

with the existence and non-existence of evidence

should authorize the issuance of a search warrant 6

The decision below condones the government’s know-

ing destruction of crucial evidence during scien-

tific tests without notice to petitioner which obvi-

onwnn

ated his due process independent analysis rights 10

Conclusion 16

Table of Authorities Cited.

Cases.

Aguilar v. Texas, 378 U.S. 108 (1964) 9

Andresen v. Maryland, 427 U.S. 463 (1976) 7

Brady v. Maryland, 373 U.S. 83 (1963) 12,13

Brinegar v. United States, 338 U.S. 160 (1949) 5

Dubose v. Lefevre, 619 F.2d 973 (2d Cir. 1980) 15

Durham v. United States, 403 F.2d 190 (9th Cir. 1968) 7

Giordenello v. United States, 337 U.S. 480 8

Loraine v. United States, 396 F.2d 335 (9th Cir. 1968) 15

Napue v. Illinois, 360 U.S. 264 (1959) 15

Sgro v. United States, 287 U.S. 206 (1932) 6

ii TABLE OF AUTHORITIES CITED.

Spinelli v. United States, 393 U.S. 410 (1969)

State v. Ingram, 445 P.2d 503 (Or. 1968)

States Marine Lines, Inc. v. Federal Maritime Com’n,

376 F.2d 230 (D.C. Cir. 1967)

United States v. Brinklow, 560 F.2d 1003 (10th Cir.

1977)

United States v. Bryant, 439 F.2d 642 (D.C. Cir. 1971)

United States v. Bufalino, 576 F.2d 446 (2d Cir. 1978)

United States v. Charest, 602 F.2d 1015 (1st Cir. 1979)

United States v. Gaultney, 606 F.2d 540 (5th Cir. 1979)

United States v. Grammatikos, 633 F.2d 1013 (2d Cir.

1980)

United States v. Kahn, 472 F.2d 272 (2d Cir. 1973)

United States v. Kelly, 420 F.2d 26 (2d Cir. 1969)

United States v. Keogh, 391 F.2d 138 (2d Cir. 1968)

T'nited States v. Love, 482 F.2d 213 (5th Cir. 1973)

United States v. Perry, 643 F.2d 38 (2d Cir. 1981)

STATUTES.

United States Constitution, Fifth Amendment, Due

Process Clause

21 U.S.C.

§ 841 (a) (1)

§ 952(a)

§ 960(a) (1)

§ 963

28 U.S.C. § 1254(1)

Federal Rules of Criminal Procedure

16(A) (1) (c)

16(d) (2)

13

12, 14

13

13

8

No.

In the

Supreme Court of the United States.

Ocroser Term, 1981.

VINCENT BELTEMPO,

PETITIONER,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit.

The petitioner, Vincent Beltempo, respectfully prays that a

writ of certiorari issue to review the judgment and opinion of

the United States Court of Appeals for the Second Circuit

entered in this proceeding on March 23, 1982.

2

Opinion Below.

The opinion of the Court of Appeals, appears in the Appen-

dix hereto.

Jurisdiction.

The judgment of the Court of Appeals for the Second Cir-

cuit was entered on March 23, 1982. The instant petition was

filed within sixty (60) days of that date. This Court’s jurisdic-

tion is invoked under 28 U.S.C. § 1254(1).

Statement of the Case.

Vincent Beltempo, charged with having conspired unlaw-

fully to import heroin in violation of 21 U.S.C. § 963

(Count I), with twice having unlawfully imported heroin,

first on January 17, 1981, and then on February 7, 1981, in

violation of 21 U.S.C. §§ 952(a) and 960(a)(1) (Counts III and

VI), and with twice having unlawfully possessed heroin in-

tending to distribute it in violation of 21 U.S.C. § 841(a)(1)

(Counts IV and VII), was found guilty on all five counts. He

is presently serving concurrent terms of fifteen years imprison-

ment on each count, having been fined $25,000 on each count,

for a total fine of $125,000 and was given lifetime special

parole on the substantive counts.

The respondent’s principal witness at trial was Antonia

Ganguzza, who testified, under a grant of immunity, that on

February 7, 1981, she and others flew from Sicily to New York

carrying heroin concealed in false-bottom suitcases; that there-

3

after, they went to petitioner’s apartment in Manhattan where

a screwdriver was used to punch a hole in the center of one of

the suitcases; that white powder spilled onto the rug; that a

knife and hammer were utilized to chisel around the outside of

the suitcase so that the outer shell could be removed; and that

taped inside were thin packets of heroin. On April 1, 1981,

fifty-two days after the date on which Ganguzza, according to

her testimony, had been present in the apartment, an applica-

tion for search warrant was made by Special Agent Stia of the

D.E.A. On information and belief, he alleged that there was

presently being concealed at apartment 12-M, 400 East 7\st

Street, New York, “traces of heroin, and screwdrivers, ham-

mers and other tools used for extracting heroin from false bot-

tom suitcases.” His allegation relied on the information from

Ganguzza, subpoenaed by the opinion of an unnamed D.E.A.

chemist, that traces of heroin can be found in a rug “even after

a period of some months,” as well as in a vacuum cleaner bag,

or on tools, if used in relation to the suspected heroin traces.

A search warrant was issued to examine the apartment for

these traces. The search, conducted by D.E.A. chemist

Stanley Blashof, resulted in seizures of evidence from a

vacuum cleaner bag, screwdriver, and from the floor of the

living room rug. Scientific tests conducted by Blashof, after

petitioner's arrest — without notice to petitioner or his

counsel, and with knowledge of Blashof that the seized evi-

dence would be destroyed by the tests — resulted in Blashof’s

findings which alone provided reliable corroboration for

witness Ganguzza.

The only other evidence against the petitioner consisted of

the traces of heroin found in his apartment and the corrobo-

rative documentary evidence indicating that the petitioner

went to Italy in January of 1981. Clearly then, the destruc-

tion of evidence that would have aided the impeachment of

the Government's key witness was crucial. In this context, the

4

denial of any impeaching evidence could have materially af-

fected the outcome of the case. However, the seized sweep-

ings were more than merely possible impeaching evidence. As

characterized by the Government during its closing argument,

this was the strongest corroborative evidence against the peti-

tioner. It was regarding this evidence, that the petitioner was

denied his right to contest, because of its intentional destruc-

tion by the Government.

At trial, Mr. Blashof first testified that he analyzed the con-

tents of false-bottom suitcases seized at J.F.K. Airport from a

codefendant on February 7, 1981. He stated that the large

quantity of powder seized at the airport was heroin. Further,

he testified that the powder was between 20-23% pure heroin

and that remainder of the powder contained procaine and

cornstarch, and traces of papevarine, nocopine, acetyl codeine

and acetyl morphine. These tests were conducted before

April 1, 1981.

Blashof then testified as to the search of the petitioner’s

apartment. He testified he conducted nine separate tests of an

ounce of sweepings from the living room rug from which he

concluded the existence of traces of heroin and cocaine. The

testing process destroyed all of the seizures that had been taken

from the living room rug. Mr. Blashof stated that he con-

ducted no tests to determine whether the traces found on the

rug came from the same batch of heroin that was seized at the

airport. For example, he failed to conduct any tests to deter-

mine whether the heroin traces seized on April 1, 1981, con-

tained procaine or cornstarch, or any other material mixed in

the February 7, 1981 heroin seizure. Mr. Blashof admitted he

could have tested the material for the presence of procaine and

cornstarch but that he was not looking for these substances.

Mr. Blashof also testified as to the seizure of a vacuum cleaner

from the petitioner’s apartment. Similar tests were conducted

on the contents of the vacuum cleaner. The results indicated

5

the presence of traces of heroin and cocaine. The seizures

from the interior of the vacuum bag were also destroyed by the

Government's testing process.

Lastly, Mr. Blashof testified as to the fact that tests on the

screwdriver revealed the presence of heroin. In addition, the

screwdriver alone was tested for the presence of procaine; the

results of such tests were negative. All of the evidence regard-

ing these tests were consumed as well. Mr. Blashof stated that

he conducted no tests to determine how long the traces of

heroin were in the apartment.

The fact that the testing process would destroy all of the

evidence found in petitioner's apartment was known and an-

ticipated by the Government, yet the petitioner was never in

any way advised in advance of the test process, nor was he af-

forded the opportunity to have a privately-retained chemist

attend in his behalf, despite his having been arrested prior to

the seizures or the tests.

Petitioner moved to suppress evidence of the heroin traces

found in his apartment, alleging insufficiency of probable

cause with regard to the information upon which the procure-

ment of the search warrant was based, as well as his denial of

due process because the respondent destroyed the evidence ac-

tually seized. These motions were denied by the trial court,

and the rulings were upheld by the court below.

Moreover, the chemist’s opinion is not drawn in terms suf-

ficiently strong to establish probable cause. The affidavit

states that traces may be found, indicating merely the realm of

possibility. This is not the basis upon which a man of reason-

able caution should conclude that the evidence to be seized

would be located at the place to be searched. Cf. Brinegar v.

United States, 338 U.S. 160 (1949).

The court below held that common sense dictates the likeli-

hood that “traces of the spilled narcotic were likely to remain

in the rug”, and that the “tools used to pry open the false bot-

toms of suitcases are ordinarily kept on the premises and not

likely to have been washed or cleaned.” Surely the desire to

remove any and all incriminating evidence is just as likely, and

makes at least as much common sense.

When the “common sense view” standard is so mis’ 2d so as

to create probable cause where none exists, especially when its

application is consistent with the non-existence of facts relied

upon, a situation arises which warrants review by this

Honorable Court.

Reasons for Granting the Writ.

Tue Decision BeLow RalsEs THE SIGNIFICANT PROBLEM OF Di1s-

TINGUISHING WHEN THE Proper APPLICATION OF THE “Com-

MON SENSE View” To Facts EQua.y ConsisTENT WITH THE

EXISTENCE AND Non-ExisTENCE OF EvipENCE SHOULD AU-

THORIZE THE ISSUANCE OF A SEARCH WARRANT.

The court below declined to focus solely on the duration of

time which had passed between the observation of heroin on

February 7, 1981, and the issuance of a warrant on April 1,

1981. Instead, a “common sense view” was relied upon as the

sole standard for determining the existence of probable cause.

But this determination was more of a creation of probable

cause, because the facts contained within the four corners of

the supporting affidavit equally inferred the presence, as well

as the absence, of the sought after objects of the warrant.

In Sgro v. United States, 287 U.S. 206, 210-211 (1932), the

Supreme Court recognized the staleness problem when it

stated:

[I]t is manifest that the proof must be of facts so closely

related to the time of the issue of the warrant as to justify

7

a finding of probable cause at that time. Whether the

proof meets this test must be determined by the circum-

stances of each case.

The facts submitted to the judicial officer must establish

that the property to be seized will probably be on the premises

to be searched. “The most convincing proof that the property

was in the possession of the person or upon the premises at

some remote time in the past will not justify a present invasion

of privacy.” Durham v. United States, 403 F.2d 190, 193 (9th

Cir. 1968). As the official instructions to the United States

Commissioners states:

A showing to the effect that the property to be seized was

at the place to be searched a substantial time before the

application is made does not justify the issuance of a

search warrant, for the reason that during the interven-

ing period the property may have been moved away. The

facts must show that the property to be seized was known

to be at the place to be searched so recently as to justify

the belief that the property is still there at the time of the

issuance of the search warrant. Durham v. United

States, supra, 403 F.2d at 194, (citing Manual for United

States Commissioners 24 (1948)).

The Courts have recognized various factors to aid in deter-

mining the line between fresh and stale information in a par-

ticular case. These factors include: the nature of the criminal

activity, the nature of the item to be seized and whether the

activities being investigated are of an ongoing nature. An-

dresen v. Maryland, 427 U.S. 463 (1976) (nature of item to be

seized); United States v. Charest, 602 F.2d 1015 (1st Cir. 1979)

8

(nature of criminal activity under investigation); United States

v. Perry, 643 F.2d 38 (2d Cir. 1981) (ongoing criminal activi-

ty).

The application for the search warrant states that the ob-

jects of the search were traces of heroin that were spilled on

the living room rug. In addition, the warrant sought to seize

tools that might have been used to remove drugs from a false-

bottom suitcase and/or might contain traces of heroin as well.

In determining the nature of the item to be seized, one factor is

whether the item sought was contraband or inculpatory per se

or likely to be disposed of for any other apparent reason.

United States v. Brinklow, 560 F.2d 1003, 1006 (10th Cir.

1977). Here, one of the items sought was contraband, spilled

on the floor, manifesting criminal activity. Common sense

would dictate that the spilled contraband would have been

removed almost immediately. This same reasoning would in-

dicate that the tools used to open the suitcase would be cieaned

so as not to leave a trace of criminal behavior. In other cases

involving seizures of heroin, delays of one month between the

observation of the drug and the application for the warrant

have precluded a finding of probable cause. State v. Ingram,

445 P.2d 503 (Or. 1968).

The only information given to the magistrate as to the likeli-

hood that the evidence could still be found at the apartment

after more than fifty days had elapsed was the assertion of an

anonymous D.E.A. chemist “that traces of narcotics can be

found in a rug even after a period of some months.” This bare

conclusion of an unnamed chemist is an insufficient basis for

the issuance of a warrant. As the Supreme Court stated in

Giordenello v. United States, 337 U.S. 480, 485-487:

The purpose of the complaint, then, is to enable the ap-

propriate magistrate, to determine whether the “prob-

able cause” required to support a warrant exists. The

9

commissioner must judge for himself the persuasiveness

of the facts relied on by a complaining officer to show

probable cause. He should not accept without question

the complaint’s mere conclusion that the person whose

arrest is sought has committed a crime.

Here, the affidavit merely sets forth the belief of an un-

named D.E.A. chemist that traces of narcotics might be found

after several months. The affidavit is clearly lacking in facts

from which the magistrate could determine for himself the

reliability of the chemist’s belief, or the basis of knowledge

upon which his conclusion rests, or his qualifications on the

limited issue of the durability of trace amounts of heroin. See

Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United

States, 393 U.S. 410 (1969). In the present context, the peti-

tioner refers to the lack of facts from which the magistrate

could concivde that this unnamed expert was qualified to

render the conclusionary opinion that the narcotics could still

be found. There was no mention of the name of the chemist,

his training, skill or experience. Indeed, there is no indication

when the affiant spoke with this chemist in relation to the date

of said affidavit. In addition, there is no indication that the

chemist was giving an opinion with the facts of this case in

mind; for it could well be that the chemist was stating a

general proposition, the relevance of which to this case is in-

applicable. Did the chemist presume that the apartment had

remained in a static condition, uncleaned, and not lived in?

The magistrate was provided with none of the predicates used

by the unnamed chemist as bases for his opinion.

When the “common sense view” standard is utilized to ap-

prove a search warrant, predicated on a finding of probable

cause that the evidence sought by the warrant exists, when the

application of the same “common sense view” standard to the

10

same facts would require, at minimum, a finding of probable

cause that the evidence sought no longer exists, creates a situa-

tion requiring this Honorable Court to grant review to deter-

mine the criteria for determinations of probable cause.

Tue Decision BELOw CONDONES THE GOVERNMENT S KNOWING

DesTRuCTION OF CruCcIAL Evipence Durinc SciENtiFIC TESTS

Wrrnovut Notice To Petitioner Wuicu Osviatep His Due

Process INDEPENDENT ANALYsIS RIGHTs.

The respondent concedes that its conduct complained of

was erroneous in that the petitioner was not notified that

seized traces found in his apartment, believed to contain

heroin, would be destroyed in the testing process, thereby ob-

viating his opportunity to observe said process and to conduct

contemporaneous independent analysis. It is uncontradicted

that the respondent knew, beforehand, that the traces of

suspected heroin would be destroyed by its tests; nevertheless,

they were unilaterally conducted. Does this not constitute

“intentional destruction”?

On April 1, 1981, a special agent of the Drug Enforcement

Administration and chemist Blashof, pursuant to the chal-

lenged search warrant, made seizures from an apartment then

leased by the petitioner. Three exhibits were offered by the

Government; the first, the sweeping from the living room rug;

the second, a screwdriver; the third, the contents of a vacuum

cleaner bag.

Heroin and cocaine traces were found in the first and third

seizures; heroin was found in the second.

Although the chemist, Blashof, admitted knowledge that

these seizures were to be tested in relation to the large seizures

of February 7, 1981, in order both to connect petitioner to the

February 7, 1981 seizures, and to corroborate Ganguzza’s

11

testimony that the seized contraband on February 7, 1981,

contained procaine and cornstarch as well as other additives,

and further that tests might exist to determine if the April 1

and February 7 seizures were related. Two of the three seized

items were not subjected to tests for either additive and the

third, the screwdriver, was tested for procaine and found to

have none. Each Government exhibit was subject to multiple

tests and was not susceptible after Blashof’s examination to in-

dependent analysis.

By destroying this evidence, the respondent denied the peti-

tioner the right to conduct an independent examination of the

evidence and to present a full and fair defense as guaranteed

by the Due Process Clause of the Fifth Amendment.* As the

Court stated in States Marine Lines, Inc. v. Federal Maritime

Com’n, 376 F.2d 230, 238 (D.C. Cir. 1967):

[W]here governmental action seriously injures an indivi-

dual and the reasonableness of the action depends on fact

findings, the evidence used to prove the Government’s

case must be disclosed to the individual so that he has an

opportunity to show that it is untrue.

Under Federal Rule of Criminal Procedure 16(A)(1)(c), the

petitioner was entitled to inspect the evidence seized from his

apartment. A defendant has a right upon request “[t]o inspect

. . tangible objects . . . which are material to the preparation

* Petitioner was offered an opportunity to examine and test for any scrap-

ings that could be extracted from the vacuum cleaner bag. This was of no

consequence, however, for two reasons: (1) the respondent itself had not

nar yr apts but had merely analyzed the contents of the bag, thus

undermining any significance to this “offer”; (2) the scrapings were not the

evidence utilized by the respondent to corroborate the testimony of witness

Ganguzza.

12

of his defense, or are intended for use by the Government as

evidence in chief at the trial, or were obtained from or belong

to the defendant.” Id. at 355. Here the petitioner was en-

titled to inspect the seized evidence under all three provisions

of this rule. This evidence was material to the preparation of

his defense; the respondent used this evidence in its case in

chief; and the evidence was taken from the petitioner’s apart-

ment.

In addition, the petitioner was entitled to inspect the seized

evidence under the doctrine of Brady v. Maryland, 373 U.S.

83 (1963). Under Brady, the due process clause is violated

when evidence material to guilt or punishment and favorable

to the accused is suppressed. Id, at 87. In the present case,

Government Exhibits 40 and 41 (living room sweepings and

screwdriver, respectively) substances alleged to be heroin were

requested for inspection by the petitioner.

Part of the right to inspect is the right to have an indepen-

dent defense expert examine the seized evidence. As the Fifth

Circuit stated in United States v. Gaultney, 606 F.2d 540, 545

(5th Cir. 1979):

In cases involving a controlled substance, courts have

held a concomitant part of the examination or inspection,

to be the right of the accused to have an independent

chemical analysis performed on the seized substance.

The Second Circuit has recognized the right to have a defense

expert conduct an independent analysis to determine whether

the substances seized were, in fact, drugs. United States v.

Kelly, 420 F.2d 26, 29 (2d Cir. 1969).

The proper procedure for the respondent to have followed

would have been to inform the court and the petitioner that its

proposed tests would destroy the seized traces of the suspected

13

heroin. If this had been done, the petitioner's own expert

could have attended the testing of the sweepings and the

screwdriver to assure that proper tests were performed, and to

assure that the maximum amount of information was ob-

tained. In United States v. Love, 482 F.2d 213 (5th Cir.

1973), the court held that where the Government could

reasonably expect the testing procedure would consume the

evidence, the defendant’s expert should have been permitted

to participate in the testing procedure.

Under Federal Rule of Criminal Procedure 16(d)(2) the

court is empowered to “[p]rohibit a party from introducing

evidence not disclosed . . . or enter any other order as it deems

just under the circumstances.” In addition, under Brady v.

Maryland, supra, the Court can order sanctions where there

has been noncompliance with the mandates of due process.

See United States v. Keogh, 391 F.2d 138 (2d Cir. 1968);

United States v. Kahn, 472 F.2d 272 (2d Cir. 1973).

In determining whether to apply sanctions against the

Government for the destruction of the tapes the Court adopted

a four part “pragmatic balancing approach” first outlined in

United States v. Bryant, 439 F.2d 642 (D.C. Cir. 1971), ap-

pealed after remand, 448 F.2d 1182 (1971).

The government has long been on notice of its duty to

preserve discoverable evidence and has been repeatedly

warned of the jeopardy in which it places its prosecutions

when it disregards this obligation. However, . . . sanc-

tions should not be imposed on the government for the

loss of such material; rather, the appropriateness and ex-

tent of sanctions in such situations depends upon a case-

by-case assessment of the government’s culpability for the

loss, together with a realistic appraisal of its significance

when viewed in light of its nature, its bearing upon

14

critical issues in the case and the strength of the govern-

ment’s untainted proof.

United States v. Grammatikos, 633 F.2d 1013, 1019-1020 (2d

Cir. 1980).

Where, as here, destruction is deliberate, sanction will

normally follow irrespective of the perpetrator’s motiva-

tion, unless the Government can bear the heavy burden

of demonstrating that no prejudice resulted to the de-

fendant.

United States v. Bufalino, 576 F.2d 446, 449 (2d Cir. 1978).

By destroying the traces of seized heroin in the testing proc-

ess, the respondent denied the petitioner the opportunity to

establish the fact that the traces of heroin found in his apart-

ment did not come from the same batch of heroin as that

seized at the airport. Mr. Blashof testified that he made no

tests to resolve this issue.

He further testified that he could have conducted tests that

would have enabled him to make this determination, but that

he failed to do so. The key to making this determination

would have been for tests to have been conducted on the traces

to determine whether they contained procaine and cornstarch.

But, as Mr. Blashof testified, he was not looking for the

presence of procaine and/or cornstarch. The existence of

testing methodologies that would have been able to determine

whether the traces in the petitioner’s apartment were from the

same batch as the heroin seized at the airport was demon-

strated to this Court in United States v. Kelly, supra, 420 F.2d

26 (neutron activation tests used to determine that two

separately seized samples came from the same batch).

15

It should be noted that there was evidence introduced at

trial supporting the petitioner's contention that the destroyed

evidence was exculpatory. Mr. Blashof testified that the

heroin seized at the airport contained 23% heroin, procaine

and cornstarch. In testing the screwdriver, however, only

heroin was found. Procaine was tested for, but none was

found. This is at least some indication that the heroin seized

at the airport and the traces found in the petitioner’s apart-

ment were not related, in that their components were dif-

ferent.

Assuming the traces of heroin were not destroyed and the

petitioner was able to show that the heroin found in the apart-

ment did not come from the quantity seized on February 7,

1981,* this evidence could have been introduced by the peti-

tioner to impeach the testimony of Antonia Ganguzza, upon

whose credibility the prosecution’s case was primarily based.

This and other Courts have recognized the value of im-

peaching material and have required reversal of convictions

when the Government has suppressed such material or with-

held its false nature. See Napue v. Illinois, 360 U.S. 264

(1959); Loraine v. United States, 396 F.2d 335 (9th Cir. 1968);

Dubose v. Lefevre, 619 F.2d 973 (2d Cir. 1980).

As indicated in the statement of the case, the critical issue in

the case was the credibility of the Government's witness, An-

tonia Ganguzza.

The refusal of the court below to impose any sanctions upon

the respondent would establish a most serious precedent upon

which prosecutors would be invited to rely. Does this not

justify the grant of certiorari?

* The seizures of traces of heroin and cocaine together is consistent with

private use and thus, if distinguished by independent analysis from the

February 7, 1981 seizures, would not necessitate an inference that petitioner

was a narcotics trafficker.

16

Conclusion.

For these reasons, a writ of certiorari should issue te review

the judgment and opinion of the Second Circuit.

Respectfully submitted,

GERALD ALCH,

MARTIN G. WEINBERG,

OTERI, WEINBERG & LAWSON,

75 Blossom Court,

Boston, Massachusetts 02114.

(617) 227-3700

~ yIpuaday

la

Appendix.

United States Court of Appeals

for the Second Circuit.

Nos. 612, 648, 649 — Aucust Term, 1981

(Argued January 26, 1982 Decided March 23, 1982)

Docker Nos. 81-1392, 81-1394, 81-1396

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

-AGAINST-

VINCENT BELTEMPO, GIUSEPPE GALLINA,

A/x/a “FILLIPO”, anp BARBARA WALBERG,

DEFENDANTS-APPELLANTS.

Before:

MESKILL anp CARDAMONE, Cincurr Jupces,

AND HOLDEN, District Jupce.*

Appeal from judgments of conviction entered in the United

States District Court for the Eastern District of New York,

Mishler, J., on September 11, 1981 which found defendants

Beltempo and Gallina guilty and on September 15, 1981 found

defendant Walberg guilty on multi-count conspiracy indict-

ments.

Affirmed.

* Honorable James S. Holden, Chief Judge of the United States District

Court for the District of Vermont, sitting by designation.

GERALD ALCH, Boston, Massachusetts (Joseph S. Oteri,

Martin G. Weinberg, James W. Lawson, Oteri & Wein-

berg, Boston, Massachusetts, of counsel),

for Defendant-Appellant Beltempo.

JAMES O. DRUKER, Mineola, New York (Paula Schwartz,

Frome, Kase & Druker, Minecla, New York, of counsel),

for Defendant-Appellant Gallina.

DAVID ELY, New York, New York (Alan Scribner, Ivan S.

Fisher, New York, New York, of counsel),

for Defendant-Appellant Walberg.

REENA RAGGI, Assistant United States Attorney for the

Eastern District of New York, Brooklyn, New York (Ed-

ward R. Korman, United States Attorney for the Eastern

District of New York, John Latella, Assistant United States

Attorney for the Eastern District of New York, Brooklyn,

New York, of counsel),

for the United States of America.

CARDAMONE, Circuit Judge:

In February 1981 United States Customs officials at Kennedy

International Airport in New York discovered sixteen pounds

of heroin concealed in the false bottoms of suitcases belonging

to a couple attempting to enter the United States. Carefully

deploying their investigative nets the authorities discovered six

others whom they indicted along with this couple as part of a

conspiracy to smuggle heroin into the country. The indict-

ments charge that from mid-January to mid-February 1981

these eight individuals attempted to smuggle forty — and

3a

actually smuggled twenty-four — pounds of heroin from Pal-

ermo, Sicily to New York. In the haul that followed only five

of the conspirators were caught; three remain at large. Of the

five that were apprehended, one plead guilty on the eve of

trial, one was acquitted at its conclusion, the remaining three

were found guilty after a jury verdict and are before us on this

appeal.

Vincent Beltempo, charged with having conspired unlaw-

fully to import heroin in violation of 21 U.S.C. § 963 (Count I),

with twice having unlawfully imported heroin, first on Janu-

ary 17, 1981 and then on February 7, 1981, in violation of

21 U.S.C. §§ 952(a) and 960(a) (1) (Counts III and VI), and

with twice having unlawfully possessed heroin intending to

distribute it in violation of 21 U.S.C. § 841(a) (1) (Counts IV

and VII), was found guilty on all five counts. He is presently

serving concurrent terms of fifteen years imprisonment on

each count, was fined $25,000 on each count, for a total fine of

$125,000, and was given lifetime special parole on the sub-

stantive counts.

Giuseppe Gallina, charged with having conspired unlaw-

fully to import heroin in violation of 21 U.S.C. § 963 (Count I),

with having distributed heroin abroad intending that it be

unlawfully imported into the United States, in violation of

21 U.S.C. § 959 (Count II), and with having unlawfully im-

ported heroin into the United States on January 17, 1981 in

violation of 21 U.S.C. §§ 952(a) and 960(a) (1) (Count III),

was found guilty on all three counts. He is presently serving

concurrent terms of twelve years imprisonment on each count,

was fined $25,000 on each count, for a total fine of $75,000,

and was given lifetime special parole on the substantive counts.

Barbara Walberg, charged with having conspired unlawful-

ly to import heroin in violation of 21 U.S.C. § 963 (Count I),

with having unlawfully imported heroin into the United States

on February 7, 1981 in violation of 21 U.S.C. §§ 952(a) and

4a

960(a) (1) (Count VI), and with having unlawfully possessed

heroin intending to distribute it in violation of 21 U.S.C.

§ 841(a) (1) (Count VII), was found guilty on all three counts.

She was sentenced to concurrent terms of two years imprison-

ment on each count, and given eight years special parole on

the substantive counts. She is free on bail pending the out-

come of this appeal.

THE TRIAL

The government's principal witness at trial was Antonia

Ganguzza who stated that in early January 1981 she was

romantically involved with Anthony Beltempo (“Tony”), de-

fendant Vincent Beltempo’s nephew.' Under a grant of im-

munity she testified that Tony persuaded her to accompany

him on a trip to Italy for the purpose of carrying back drugs,

for which he agreed to pay her $10,000. On January 13 she,

Tony and Paul Galgano* flew to Palermo, Sicily where they

met Tony's “Uncle Jimmy,” identified by her at trial as de-

fendant Vincent Beltempo. Vincent Beltempo later introduced

her to a man called “Phillipe,” whom she identified in court as

defendant Giuseppe Gallina.

On January 15, 1981 Ganguzza, Galgano and the two Bel-

tempos again met with Gallina who took them shopping for

the clothing they would need to conceal the packages they

planned to carry. Later that day Vincent Beltempo, Gallina,

Ganguzza and Galgano went to Gallina’s apartment. They

were subsequently joined there by Tony Beltempo and Ronald

Rizzo.* At the apartment Ganguzza and Galgano dressed in

the undergarments they had recently purchased, concealing

under them ten one-pound packets of heroin. The two Bel-

tempos and Gallina then appraised their appearance to make

sure that neither looked “too bulky.” That evening Tony Bel-

5a

tempo, Ganguzza, Galgano and Rizzo left for Rome. They

were taken to the train station in two cars, one driven by

Giuseppe Gallina and one by his brother Salvatore.‘

The four arrived in Rome on January 16, 1981, carrying the

heroin packets. Although they already had round-trip tickets,

Tony Beltempo sent Galgano to purchase new return trip tick-

ets to New York for the two of them and Ganguzza because of

Vincent Beltempo’s warning that the trio might arouse the

suspicion of customs officials in New York were their tickets to

show too short a stay.

The following day Tony Beltempo, Galgano and Ganguzza

prepared to leave Rome and return to New York. Ganguzza

concealed seven heroin packets on her body; Galgano concealed

three. Tony Beltempo advised the two couriers that when

they arrived in New York each should go through customs as if

traveling alone. He further warned them not to get excited if

they saw him being questioned since his name was in “a com-

puter.” Following these directions the two couriers and Bel-

tempo successfully smuggled the drugs through customs at

Kennedy Airport and then went to a New Jersey motel where

Ganguzza and Galgano gave the heroin packets to Tony Bel-

tempo. The following day Tony Beltempo paid Ganguzza

$10,000 for her part in the smuggling venture.

Promised another $10,000 if she would act as a courier

again, Ganguzza left New York on Monday, January 26, 1981

arriving in Rome, Italy the following day. She checked into

the Metropole Hotel, called Rizzo and arranged to meet him.

Rizzo came to the hotel accompanied by a woman whom he

introduced as “Barbara,” identified by the witness at trial as

the defendant Barbara Walberg. In Walberg’s presence Gan-

guzza asked Rizzo “what was going on,” where the “stuff” was

and when she was to leave. Rizzo told her there was “nothing

here yet,” and that he “hadn’t heard from anybody.”

On February 1, 1981 Rizzo telephoned Ganguzza to say that

he and Walberg would be coming over to her hotel. They ar-

6a

rived accompanied by a man identified as “Sal,” whom Gan-

guzza recognized from her previous trip as Giuseppe Gallina’s

brother. Walberg told Ganguzza that there had been a change

in plans, that they would all be going first to Sicily and that

“Sal” would explain. When the four of them arrived in Sicily

they went to the same apartment where Ganguzza had first

seen the heroin on her earlier trip. Salvatore Gallina explained

that he shared this apartment with his brother “Phillipe,”

whom he said had returned to New York. Gallina informed

the three couriers that instead of carrying the heroin concealed

on their bodies, they would carry false bottom suitcases. On

the morning of February 7, 1981 Rizzo, Walberg, Ganguzza

and Salvatore Gallina left the apartment where they had all

been staying and drove to the airport. There the group was

approached by a man introduced by Salvatore Gallina as

“Joe,” identified at trial as the defendant, Giuseppe Aiello.*

Gallina had told Walberg and Ganguzza earlier that “an Ital-

ian” would travel with them from Italy and that the group

should act like a family. The flight from Palermo to New York

was uneventful and, after she cleared customs, Ganguzza called

Tony Beltempo who arranged to meet her in New Jersey.

Beltempo was surprised to learn that these packages of hero-

in were concealed in suitcases and not carried on the couriers’

bodies. Unable to find the heroin packets in the suitcases, he

told Ganguzza they would take the suitcases and go meet his

“Uncle Jimmy.” From there the three of them went to Vin-

cent Beltempo’s apartment on the Upper East Side of Manhat-

tan. At the apartment Ganguzza told Vincent Beltempo in

more detail about what had happened, while Tony took a

screwdriver and punched a hole in the center of one of the suit-

cases. White powder spilled onto the rug. With a knife and

hammer Tory chiseled sround the outside of the suitcase until

he could remove the outer shell. Taped inside were thin pack-

ets of heroin.

7a

On April 1, 1981, pursuant to a search warrant, Drug En-

forcement Administration (DEA) chemist Stanley Blashof

searched Vincent Beltempo’s apartment for traces of heroin.

He testified that heroin traces were found in a vacuum cleaner

bag, on a screwdriver and in the living room rug.

The defendants raise a number of issues on this appeal, sev-

eral of which warrant discussion. These contentions will be

analyzed in the context of the facts and law applicable to each.

DISCUSSION

I. Vincent BELTEMPO

The principal thrust of Beltempo’s argument before us is

that the district court incorrectly failed to suppress evidence of

the heroin traces found in his apartment. He claims (1) that

the search warrant procured by the DEA was based on infor-

mation obtained over 50 days prior to the application and that

it should therefore fail for lack of probable cause; and (2) that

he was denied due process of law because the government

destroyed the evidence seized in his apartment.

The application for the warrant was made on April 1, 1981

by Special Agent Stia of the DEA. On information and belief,

he alleged that there was presently being concealed at apart-

ment 12-M 400 East 71st Street, New York “traces of heroin,

and screwdrivers, hammers and other tools used for extracting

heroin from false bottom suitcases.” He set forth the source of

his information as Antonia Ganguzza who advised him, at an

unspecified time, that on February 7, 1981, she smuggled

drugs into the United States from Italy in false bottom suit-

cases. He related that she advised him of her trip to Vincent

Beltempo’s apartment on the Upper East Side. He stated that

investigation revealed the apartment described was leased to

8a

Beltempo. She told him, he continued, of the tools used to

open the suitcases and that she observed a small quantity of

heroin spilled on the rug in the process. A DEA chemist ad-

vised Stia that traces of heroin can be found in a rug “even

after a period of some months.” He was told that if the rug

had been vacuumed, traces may be found in the vacuum

cleaner bag and the tools used if they came into contact with

heroin might have traces as well.

On the same day Magistra\e Raby issued a search warrant to

examine the apartment for these traces. Defendant claims

that the issuance of this warrant on April 1, 52 days after the

date when Ganguzza was in the apartment, was improper be-

cause it was based on stale information insufficient to support

claimed probable cause to search.

The Fourth Amendment to the Constitution protects against

unreasonable searches and seizures by providing that no search

warrant shall issue “but upon probable cause.” A neutral

magistrate must be satisfied that there is “probable cause” to

believe that grounds for the application exist before he issues a

warrant. Fed. R. Crim. P. 4l(c). Probable cause to issue a

warrant looks first to the adequacy and reliability of the obser-

vation. Specificity assured, currency is considered. To justify

a present search probable cause must be current and not rest

on facts which existed in the past, unless there is reason to be-

lieve those facts are still in existence. 3 C. Wright, Federal

Practice and Procedure § 662 at 23 (1969).

The general principles governing the delay between the

known existence of facts and the issuance of a warrant were set

forth by Chief Justice Hughes in Sgro v. United States, 287

U.S. 206 (1932). “While the statute does not fix the time with-

in which proof of probable cause must be taken by the judge or

commissioner, it is manifest that the proof must be of facts so

closely related to the time of the issue of the warrant as to justi-

fy a finding of probable cause at that time. Whether the proof

9a

meets this test must be determined by the circumstances of

each case.” Id. at 210-11. In viewing the “circumstances” to

determine whether probable cause exists in a given case, there

should be applied “practical considerations of everyday life on

which reasonable and prudent men, not legal technicians,

act.” Brinegar v. United States, 338 U.S. 160, 175 (1949).

Further, in considering whether the time lapse is reasonable,

heavy reliance is placed on the nature of the offense. Where

the activity is of a continuing nature a greater time lapse is jus-

tified than where the offense is an isolated one. Comment, A

Fresh Look at State Probable Cause: Examining the Timeli-

ness Requirement of the Fourth Amendment, 59 Iowa L. Rev.

1308 (1974); 68 Am. Jur.2d Searches and Seizures § 70 (1973);

see cases collected at Annot., 100 A.L.R.2d 525 (1965).

The question here is whether probable cause existed at the

time the warrant issued to believe that the heroin observed on

February 7, 1981 was still to be found on Beltempo’s rug, or

whether so long a period of time had passed as to make it

doubtful that the drug was still there. United States v. Rami-

rez, 279 F.2d 712, 715 (2d Cir.), cert. denied, 364 U.S. 850

(1960); United States v. Brinklow, 560 F.2d 1003, 1005 (10th

Cir. 1977), cert. denied, 434 U.S. 1047 (1978).

Were this case to be viewed as one involving a continuing

offense — and a persuasive argument can be made that con-

spiracy to smuggle heroin into the United States fits that

description — that would end the discussion, for a 52 day

lapse would not vitiate probable cause in an ongoing scheme of

illegal importation. But the affidavit upon which the search

warrant issued contained no allegation that such was the fact.

It referred only to the single February 7, 1981 incident when

the informant Ganguzza was present in defendant Vincent

Beltempo’s apartment.

In this isolated incident type of case some courts have focused

solely on the element of time that has elapsed. The court in

10a

Schoeneman v. United States, 317 F.2d 173, 177 (D.C. Cir.

1963) stated that no case could be found that sustained a search

warrant issued more tl.an 30 days after the finding of evidence,

and one commentator has concluded that a lapse of more than

seven weeks has always rendered a search warrant nugatory,

Annot., 100 A.L.R.2d at 527.

Adopting an arbitrary “cut-off” expressed in days or weeks

beyond which probable cause ceases to exist, in our view im-

properly substitutes a rigid formula for the informed judgment

which it is the duty of a magistrate to exercise. Factors as im-

portant as the time element to be considered in determining

the existence of probable cause include the nature of the object

sought, its location on the premises and the state in which it

was observed. The nature of the object would encompass such

considerations as whether it is large or small, moveable or

fixed, disposable or permanent and innocuous or incriminat-

ing. The location of an object on the premises would involve,

for example, whether it was in plain sight on a table, locked in

a safe, on a beam in a cellar or secreted behind a bricked-in

wall. The state in which the object was seen is especially im-

portant today because modern technology and equipment

have the sophisticated capacity to ascertain whether matter —

in whatever form it may be — is present or even may have

once been present. This technology can detect, for example, a

blood stain on clothes, furniture or rug; a gas that evaporates;

a solid that dissolves and disappears, or one that changes into a

powder or a liquid that seeps into a fabric, or dust that is sus-

pended in air and whose particles may later be found on the

top ledge of a door. The inquiry with respect to probable

cause in the case of an observation of an isolated incident

should focus on all of the relevant circumstances, including the

element of time lapse, to determine the probability of the con-

tinued existence of the object sought at the place where it was

last seen. The overall approach should be one of flexibility

lla

and common sense. Compare United States v. Dauphinee,

538 F.2d 1, 5 (Ist Cir. 1976) (search upheld after 30 days

elapsed where the objects were hand grenades); United States

v. Rosenbarger, 536 F.2d 715, 719-20 (6th Cir. 1976), cert.

denied, 431 U.S. 965 (1977) (search upheld where 21 days

elapsed in search for possession of firearms); United States v.

Steeves, 525 F.2d 33, 38 (8th Cir. 1975) (search valid after 87

days where object of search was two rifles); and United States

v. Rahn, 511 F.2d 290, 292-93 (10th Cir.), cert. denied, 423

U.S. 825 (1975) (warrant for search for weapons upheld after

two years, citing Neal, infra); with United States v. Neal, 500

F.2d 305, 309 (10th Cir. 1974) (search warrant invalid after

three months lapse where object was stolen credit cards and

stolen auto parts); and Rosencranz v. United States, 356 F.2d

310, 315-18 (1st Cir. 1966) (warrant invalid where no time is

alleged in the affidavit as to when the object was last observed

on the premises).

Were we merely to count the number of days between Gan-

guzza's observation and the date of the warrant’s issuance, this

could arguably be a close case. Even were it to be considered

doubtful, however, a presumption of regularity attaches to of-

ficial acts so that a magistrate’s finding of probable cause is

itself a substantial factor tending to uphold this validity of the

warrant. United States v. Jackstadt, 617 F.2d 12, 13 (2d Cir.

1980), cert. denied, 445 U.S. 966 (1981); see United States v.

Ventresca, 380 U.S. 102, 106 (1965).

In any event this is not a close case when viewed in a com-

mon sense manner. The object sought was small and although

its possession was incriminating, it was innocuous in its hidden

location within the pile of a rug. The heroin sought here was

a powder that does not dissolve or evaporate and whose pres-

ence an expert indicated lingers for a period of some months.

Traces of the spilled narcotic were likely to remain in a rug,

even one that had been vacuumed. The tools used by Beltempo

12a

tu pry open the false bottoms of suitcases are ordinarily kept on

the premises and not likely to have been washed or cleaned.

Here a common sense view of all the circumstances belies the

contention that a time lapse alone precludes the existence of

probable cause. See Andresen v. Maryland, 427 U.S. 463,

478-79 n.9 (1976). Thus, the validity of this warrant should

be upheld.

The issue of the destruction of the heroin traces is more

readily disposed of. Intentional destruction is a serious matter

that may involve imposition of sanctions, even a new trial. See

United States v. Bufalino, 576 F.2d 446, 449 (2d Cir.), cert.

denied, 439 U.S. 928 (1978). In United States v. Grammatikos,

633 F.2d 1013, 1019-20 (2d Cir. 1980), we said “the appropri-

ateness and extent of sanctions in such situations depends upon

a case-by-case assessment of the government’s culpability for

the loss, together with a realistic appraisal of its significance

when viewed in light of its nature, its bearing upon critical

issues in the case and the strength of the government's untaint-

ed proof.” We note that this was not an intentional destruc-

tion. Rather, it was a good faith loss that came about as a

necessary consequence of the method used to analyze the

scrapings and sweepings which consumed the heroin in the

process.” As such it does not invoke the sanction of exclusion

of the evidence particularly where, as here, the expert who

performed the scientific tests is available for cross-examination.

United States v. Love, 482 F.2d 213, 218-19 (5th Cir.), cert.

denied, 414 U.S. 1026 (1973); see United States v. Augenblick,

393 U.S. 348 (1969). In the instant case, moreover, pursuant

to Fed.R.Crim.P. 16(a) (1) (D), defendant was offered an op-

portunity to examine and test for any scraping that could be

extracted from the vacuum cleaner bag since only the contents

of the bag had been tested, not the bag itself. Under these cir-

cumstances, it is difficult to credit defendant’s argument that

Brady material was wrongfully denied him, since there is not

13a

the slightest suggestion that the prosecution suppressed evi-

dence which would have been favorable to him. Brady v.

Maryland, 373 U.S. 83 (1963).

II. Barspara WALBERG

Walberg argues that the trial court’s exclusion of an excul-

patory hearsay statement made by co-defendant Rizzo before

a United States Magistrate requires reversal and a new trial.

Rizzo, who plead guilty, and Walberg were the couple

traveling from Italy. It was they who were caught by customs

inspectors in February at the same time that Tony Beltempo

and Antonia Ganguzza successfully smuggled the heroin in

their suitcases past the customs officers. The statement sought

to be introduced was made by Rizzo when he and Walberg ap-

peared before the United States Magistrate for their initial ap-

pearance. Rizzo told the Magistrate that Walberg “had noth-

ing to do with [the smuggling conspiracy].” The proceedings

were not transcribed and no written offer of proof was made.

Rizzo did not appear as a witness at the trial.

The statement was offered as a declaration against the penal

interest of an unavailable declarant. Fed.R.Evid. 804(b) (3)

provides, in pertinent part: “A statement tending to expose

the declarant to criminal liability and offered to exculpate the

accused is not admissible unless corroborating circumstances

clearly indicate the trustworthiness of the statement.” In

Chambers v. Mississippi, 410 U.S. 284, 300-01 (1973), the Su-

preme Court held that to be admissible the hearsay statement

must be made by an unavailable declarant, spontaneously and

in close temporal proximity to the crime, corroborated by

some other evidence in the case, and self-incriminatory against

the declarant’s penal interest. This court has also held that

Rule 804(b) (3) as well as Chambers require corroborating cir-

cumstances that clearly indicate the trustworthiness of the

l4a

hearsay statement. United States v. Guillette, 547 F.2d 743,

754 (2d Cir. 1976), cert. denied, 434 U.S. 839 (1977).

The district court properly found that declarant Rizzo was

unavailable because he asserted his Fifth Amendment right by

refusing to testify. United States v. Thomas, 571 F.2d 285,

288 (5th Cir. 1978). The court also correctly held that the

statement made was against his penal interest. It satisfied

Chambers in that it could be found to be spontaneous and

close in time to the crime.

Nevertheless, there was insufficient corroboration in the

record to establish the trustworthiness necessary to make Riz-

zo’s hearsay remark admissible. Culling from defendant Wal-

berg’s own brief, it appears that Ganguzza, after meeting

Rizzo in the Rome hotel lobby and while Walberg was with

him, spoke with Rizzo about which method of smuggling

would be used. Afterwards, while in Palermo there was “a lot

of” drug related conversation among the group of couriers.

Brief for Appellant Walberg at 5. Walberg and the others

gave their clothing (new clothing that Walberg had just pur-

chased) to Salvatore Gallina to pack in new suitcases for them.

She threatened to “turn them in” if any of her recent purchases

were lost, id. at 6, and expected to be paid for making the

trip.*

The standard for appellate review of an exclusion under

Rule 804(b) (3) is whether the trial court abused its discretion.

Un..ed States v. Poland, 659 F.2d 884, 895 (9th Cir. 1981). In

light of the above evidence it was not an abuse of the trial

court’s discretion to exclude Rizzo’s hearsay statement.

Ill. Grusepre GALLINA

Gallina raises several issues, none of which require more

than brief discussion.

15a

Defendant contends that the evidence in the record estab-

lishes the existence of two conspiracies, but that the proof con-

nects him with only one. He was present in Italy as “Phillipe”

on the January body-carry smuggle and he conceded that the

proof connects him with that crime. But in February he was

in New York City and claims that he could not have been a

participant in the illegal importation by false-bottom suit-

cases. The government asserts that there was only one on-

going conspiracy.

A jury verdict must be sustained where the evidence viewed

in a light most favorable to the government supports it. Glaser

v. United States, 315 U.S. 60, 80 (1942). So viewed, the

Gallina brothers were heroin suppliers for both the January

and February transactions because they had reached an agree-

ment with the Beltempos to furnish heroin in Italy to be smug-

gled into the United States by various couriers. This proof

constitutes the “agreement” which is the gist of the crime of

conspiracy. United States v. Borelli, 336 F.2d 376, 384 (2d

Cir. 1964), cert. denied, 379 U.S. 960 (1965). Unlike United

States v. Bertolotti, 529 F.2d 149 (2d Cir. 1975), relied upon

here by defendant, this is not a “spillover” involving evidence

of separate multiple conspiracies and individuals totally un-

connected with one another. See alse Kotteakos v. United

States, 328 U.S. 750 (1946); United States v. Cambindo Valen-

cia, 609 F.2d 603 (2d Cir. 1979), cert. denied, 446 U.S. 940

(1980). Rather the proof shows this to be a single narcotics

distribution scheme involving closely related individuals with

a common purpose to effect smuggling by whatever method

appeared best at the time. The principal participants and

their agreement to smuggle heroin from Italy to the United

States by means of couriers remained constant.

Defendant claims that proof is lacking that the substance in-

volved in the January transaction was heroin. The jury found

Gallina guilty of conspiracy for both the January and Febru-

16a

ary transaction. The heroin imported in February was inter-

cepted at customs and was in evidence. Further, as defendant

concedes, the nature of the substance may be proved by cir-

cumstantial evidence. Brief fur Appellant Gallina at 20. All

the facts considered as a whole — e.g., white powder, $10,000

paid to one courier to carry it, extreme secrecy used, the Feb-

ruary shipment was heroin — provide ample circumstantial

evidence that the January shipment was also heroin. See,

e.g., United States v. Atkins, 473 F.2d 308, 314 (8th Cir.),

cert. denied, 412 U.S. 931 (1973); United States v. Fiotto, 454

F.2d 252, 254 (2d Cir.), cert. denied, 406 U.S. 918 (1972).

Question is raised concerning the admissibility of a $20,000

check drawn in 1979 and cashed by defendant at a Swiss bank.

The defense attempted to portray Gallina as a person of

modest, even reduced, means through the testimony of his

wife. The government countered by introducing three checks

totalling $75,000 made out to Gallina all dated January 29,

1981 (shortly after the first smuggling trip). There is little dis-

pute about their relevancy and admissibility. At issue is the

$20,000 check which was admitted, but was dated November

1979, about 13 months prior to the incidents for which defend-

ant was on trial. The proof showed that it was cashed by

defendant at a bank in St. Gall, Switzerland. At trial Gallina

objected to its relevancy; he now claims that it tended to show

the commission of prior criminal acts.°

Mrs. Gallina’s testimony had not been restricted to the Gal-

lina’s present financial picture. She had stated that her mid-

dle-aged husband owned a laundromat and occasionally visited

a family meat market in Brooklyn. She said that he went to

Italy for the weather and for his heart condition. While there

she claimed that they stayed at his father’s house because they

did not have an apartment of their own. She also testified that

they owned only one car, never ate out, never travelled except

for health reasons and never even went to the movies. To

17a

create this image of a poor Brooklyn butcher the defense, as in

the line from “Oklahoma,” went about as far as it could go.

We believe that the 1979 check was plainly relevant in view of

Mrs. Gallina’s testimony.

The last two issues involve severance and the claimed bias of

a juror. Neither has merit. First, defendant did not move for

severance prior to trial and only moved after the verdict for a

new trial on the grounds of improper joinder. Such a motion

not having been timely made was waived. Fed.R.Crim.

P. 12(b) (5) and 12(f). Second, one of the jurors wrote a love

letter to the Assistant United States Attorney and invited her to

lunch or dinner. He sent a picture of himself and a poem. In

commendable fashion the Assistant United States Attorney

brought the entire matter to the attention of the trial court and

defense counsel. The circumstances disclosed here are not at

all similar to those outlined in Remmer v. United States, 347

U.S. 227 (1953), where a private communication to a juror

during a trial required a hearing to determine whether the

incident prejudiced the accused on trial. Further, Federal

Rule of Evidence 606(b) provides that after a verdict a juror

“may not testify as to. . . the effect of anything upon him. . .

mind or emotions as influencing him to assent to. . . the ver-

dict. . . .”. The many sound reasons for not inquiring into a

juror’s state of mind are fully set forth in United States v.

Dioguardi, 492 F.2d 70, 78-80 (2d Cir.), cert. denied, 419

U.S. 829 (1974). No recognized ground is presented to im-

peach the verdict on this issue.

With respect to defendant Walberg the mandate of the

court shall issue forthwith.

The judgments of conviction is each case are affirmed.

USA v. Beltempo, et al. USA v. Beltempo, et al.

Docket No. 81-1392 Docket No. 81-1392

/s/ /s/

3/3/82 3/11/82

18a

FOOTNOTES

' Anthony Beltempo, an indicted co-conspirator, is still at large.

* Paul Galgano is another indicted but unapprehended co-conspirator.

? Rizzo, one of the couriers, plead guilty on the eve of trial and was sen-

tenced to four years incarceration and six years special parole.

‘Salvatore Gallina, brother of defendant Giuseppe Gallina, is the third co-

conspirator still at large.

5 Aiello, an alleged courier, was acquitted at trial.

° The isolated nature of the activity was made plain from the language of

the affidavit where the DEA Agent discussed the opening of the false bot-

tomed suitcases using household tools: “In the course of this procedure, a

small quantity of heroin was spilled onto the living room rug.”

7 The Government concedes that in the particular circumstances here the

better course may have been to notify the defendant that the heroin traces

would be destroyed in the process of testing so that the accused could better

guard against the claim he now advances.

* Walberg’s defense was that she was an innocent dupe of Ronald Rizzo

with whom this 27 year old defendant was romantically involved. Her

parents and a family friend testified that they urged her to take the trip with

her boyfriend Rizzo as a chance to see Europe. As the Assistant United States

Attorney argued before us, however, this testimony failed to establish her in-

nocent lack of knowledge and was not believed by the jury since no daughter

would tell her mother that she was going to Italy to smuggle heroin back into

the United States.

* Fed.R.Evid. 404(b) provides:

Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or

acts is not admissible to prove tie character of a person in order to

show that he acted! in conformity therewith. It may, however, be ad-

missible for other purposes, such as proof of motive, opportunity, in-

tent, preparation, plan, knowledge, identity, or absence of mistake or

accident.