Petition for Writ of Certiorari — Riverso v. United States

fils

IN THE SUPREME COURT OF THE UNITEDMSTATES "ME CLERK

OCTOBER TERM, 1991

VINCENZO RIVERSO, PEITITONER

Vv.

UNITED STATES OF AMERICA.

PETITION FOR A WRIT OF CERTIORARI

1O THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

GEORGE EDELSTEIN

Counsel of record

605 W. 112th St. #5B

New York, NY 10025

| (212) 662-4771

QUESTION PRESENTED

Whether the Court should exercise its

supervisory power to reverse summarily the

judgment of the court of appeals affirming

petitioner's conviction for participatiny in a

narcotics conspiracy because the judyment is

based on evidentiary conclusions that are not

Supported by the record.

4

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a eel Tali

ss

eS Or ae ae

PARTIES TO THE PROCEEDING

Four other individuals were parties to

the proceeding in the court of appeals:

Vincenzo Miceli, Michael Modica (defendants-

appellants-cross~appellees), and Michael

Bernardo and Alfredo Spavento (defendants-

appellants).

ae,

.

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ands v

22

TABLE OF CONTENTS

Page

Opinion below .ccccccccvcccssseseccesees 1

Jurisdiction wcccccccccccccccccveccecece 1

SCQACEMENt cccccccccccccccccccccecscesese 2

Reason for granting the petition ....... 10

Conclusion .ccccccscesecccsccsesese cveves 14

Appendix A .ccccccccsccvcceccesesccccceces la

Appendix B .ccccccsvcseces Cove ceveseeeses 24a

Appendix C wcccccccccccce ceeceee eceseves 25a

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

No.

VINCENZO RIVERSO, PETITIONER

Vv.

UNITED STATES OF AMERICA.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Vincenzo Riverso petitions for a writ of

certiorari to review the judyzment of the 'Jnit-

ed States of Appeals for the Second Circuit in

this case.

OPINION BELOW

The court of appeals' summary order (App.

A, la-23a) is not published.

JURISDICTION

The order of the court of appeals was

entered on April 30, 1991. The order of the

court of appeals denying rehearing (App. B,

24a) was entered on July 16, 1991. The juris-

(1)

ee

diction of this Court is invoked under 28

U.E.6.- TERT).

STATEMENT

Background

After a six-month jury trial, petitioner

Vincenzo Riverso and four of his co-defendants

were convicted of conspiring to violate the

narcotics laws (21 U.S.C. 841 et seq.). The

four other defendants were also charged with

and convicted of a total of eight substantive

narcotics offenses, each involving a single

sale to an undercover agent. Riverso was

sentenced to 12 and one-half years in prison

and four years of supervised release. The

district judge (the Honorable John E. Sprizzo)

continued Riverso's bail pending appeal pursu-

ant to 18 U.S.C. 3143(b), finding that the

appeal would involve the substantial issues of

whether the government proved the "unique"

conspiracy the indictment alleged and, if so,

whether Riverso participated in it. Hearing

10/31/89, 42-44. On August 1, 1991, the court

of appeals granted Riverso's motion to stay

its mandate pending the filing of this peti-

tion.

The indictment charged that the 28 named

defendants conspired (together with some 45

named coconspirators) to violate the narcotics

laws by importing kilogram quantities of hero-

in, by exporting cocaine in quantities in

excess of 5 kilograms, and by distributing and

possessing with intent to distribute those

quantities of heroin and cocaine. The indict-

ment also charged ten of the 28 defendants

(not including Riverso) with a total of 24

substantive violations of the narcotics laws

based on 20 sales that were allegedly made

pursuant to the conspiracy.

Riverso went to trial with 16 of his co-

defendants (the eleven other defendants were

either severed, pleaded guilty or were fugi-

tives). During the government's case three

defendants pleaded guilty. At the end of the

government's case the district court granted

the motions of seven defendants for judgments

of acquittal, primarily because the evidence

showed only their involvement in a single

heroin transaction which, the court ruled, was

insufficient to support a finding that each

agreed to participate in the unique multi-drug

conspiracy the indictment alleged.

The jury found two of the remaining seven

defendants (both charged only with conspiracy)

not guilty, and found Riverso guilty on the

conspiracy count and the four other defendants

guilty both on the conspiracy count and on a

total of eight substantive counts.

The evidence

1. The government's case consisted main-

ly of evidence gathered during three separate

undercover investigations, evidence that the

court of appeals held established the exis-

tence of the single conspiracy the indictment

alleged. The court of appeals described the

conspiracy as "a network of narcotics suppli-

ers and distributors"

managed with Riverso's help.

The evidence showed that

1987 through March 1988 eight

a total of 20 narcotics sales

heroin

agents: 18 sales of

totalliny sliyhtly

which the agents paid $850,000;

of cocaine of

agents paid a total of $30,000.

20 sales there was no evidence

source. (See App. C, 25a,

list of the 20 sales based on

and the yovernment's brief in

appeals ("gov't br."), showin,

amount of narcotics, the price

or broker for each sale.)

Spavento was char,ed with

for his participation in three

sales. There was no evidence

was involved in any way in the

The unique feature of the

that defendant Spavento

in varyiny amounts

more than 4 kiloyrams

O.5 kilogram each for which

a chronoloyical

App. A, 4a-5Sa.

from January

defendants made

to yovernment

for

and two sales

the

For 13 of the

identifyiny the

the incgictment

the court of

the seller, the

and the source

and convicted

of the 20

that Spavento

other 1/7 sales.

conspiracy was

the alleged "Italian herocin-for-cocaine swap"

(see App. A, 3a, 5a). According to the in-

dictment, one way the defendants carried out

the unlawful agreement was by transporting

cocaine to Italy, exchanging it there for

heroin and then transporting the heroin to

this country for distribution. The government

claimed that pursuant to the swap scheme the

conspirators obtained heroin in Italy for from

$15,000 to $110,000 (in cash or co

~N

aine) per

kilogram and then sold the heroin here for

$200,000 per kilogram (gov't br. 13 & n.*).

At trial and on appeal the government repre-

sented that "[t]he heroin/cocaine swap scheme"

actually operated, that it was highly profit

able, that it was the source of a substantial

part of the heroin the conspirators sold, and

that a number of defendants were directly

. . . / +

involved in operating the scheme (yov't br.

13, 18, 41, 46-47).

—.

According to the record no defendant

imported or sold heroin that was the product

6

of such a swap scheme, and no defendant ex-

ported cocaine for the purpose of exchanging

it for heroin to be sold domestically.

The record shows that two defendants

(Bernardo and Fiumara) proposed the "swap

scheme" three times and that it was never

accepted. They urged defendant Sabino to give

them cocaine in return for their promise to

give him heroin, but Sabino refused and made

them promise to pay him in cash. And, on

separate occasions, Bernardo and Fiumara urged

two undercover agents to give them cocaine

which, they said, they would exchange in Italy

for heroin the agents could sell here and earn

an enormous profit. Bernardo told one agent

that if he yave Bernardo $30,000 worth of

cocaine, Bernardo would give him $200,000

worth of heroin, after he made the "swap."

Fiumara told the other agent essentially the

same story. Neither agent pursued the offer

to participate in the swap scheme.

2. The government did not claim that

Riverso participated in the three sales in

which Spavento was involved, or in any of the

other 17 sales, or that Riverso participated

in the sale of narcotics at all, either for

himself or as Spavento's agent or assistant.

It argued that other events showed that

Riverso was a member of the conspiracy.

Of particular relevance in light of the

court of appeals' decision is the evidence of

Riverso's dealings with defendant Mark, a

courier who cooperated with and testified for

the government. He said that defendant

Fiumara gave him a package to smuggle into

Italy and told him that it contained cocaine.

Mark said he gave the package to Riverso in

Rome. Mark also testified that Fiumara did

not pay him for his courier services and that

Riverso offered to pay him with counterfeit

money and gave him small sums on Fiumara's

behalf. There is no evidence and the govern-

ment did not contend that Riverso was acting

as Spavento's agent when he dealt with Mark,

and there is no evidence connectiny Spavento

to those transactions.

It is also relevant in liyht of the court

of appeals' decision that there is no evidence

and the yovernment did not claim that Riverso

knew Modica or Miceli or that Riverso partici-

pated in their narcotics transactions, which

accounted for five of the 20 sales (see App.

ee + Se

The court of appeals' decision

The court of appeals unanimously affirmed

the five appellants' convictions. As already

mentioned, the court held that the evidence

showin, the existence of the "Spavento net-

work" was sufficient to prove the uniyue con-

Spiracy the indictment alleged. The network

pot the narcotics it sold, the court conclud-

ed, from two "essential ... sources of Sup-

ply” Modica and Miceli and "the Italian

heroin-for-cocaine scheme” (App. A, 5a). And

it observed that Riverso was involved in both

of those supply "operations" (App. A, 5a).

The court also concluded that "[t]here

was ... more than sufficient evidence to con-

nect Riverso to Spavento's activities and thus

to the charged conspiracy" (App. A, 1l6a). To

Support that conclusion the court said "there

was overwhelming evidence” that Riverso par-

ticipated in two series of transactions "as

"Sales to

Spavento's representative": (1)

Agent Caruso;" and (2) "the use of Jerry Mark

as a courier to smuggle cocaine into Italy

coe” ERBASD.

REASON FOR GRANTING THE PETITION

The Court should exercise its supervisory

power to reverse the court of appeals' judg-

ment affirming Riverso's conviction because

the judgment rests on conclusions that are not

Supported by the evidence.

The court's determination that a

"Spavento network" existed and that it approx-

imated the conspiracy the indictment alleyed

10

cannot be sustained when

show that Spavento was

aware of 17 of the network'

moreover, irrational to

who was not shown to have

of the 20 sales, helped

network.

Simi

record fo

and Micel

swap

for the

in both

is true,

five of

that

that Rive

Miceli or

evidence

to

scheme ac

scheme

network

the

there

produce

larly,

r the

i and

were

’ . Al

operations.

together

20

is not

rso was

their

that

any

cording

there

’

court s

the

and

sales.

the

heroin,

is no

Italian

essential]

that

supplied

But

th

hing in

involved

Al

Swap

the

to t

ll

there

GC

—

been

SOpavento

is

responsible

20 sa

conclude t

inv

m

SUppor

conclusions

heroin-

sources

River

Modica

Or

:t

=

with

" , "

operation.

scheme

50 We

and

part

eC Of

Mod

And

Ai

nothing to

for or

les. It is,

hat Riverso,

olved in

any

anage a

the

Modica

for-cocaine

supply

ivolved

oe y

lows, therefore, that Riverso could not have

been involved in its operation.

The evidence the court relied on to sup-

port its conclusion that Riverso was a partic-

ipant in the Spavento network is non-existent.

Nothing in the record shows that Riverso sold

drugs to agent Caruso or that Riverso acted as

Spavento's representative in his dealings with

Mark. But the court held that those two se-

ries of transactions constituted "“overwhelminy

evidence” that Riverso participated in the

unlawful aypreement because they "connect([ed|]

Riverso to Spavento's activities and thus to

the charged conspiracy" (App. A, 16a).

We recognize that the Court rarely

accepts a case for review simply to correct

errors of the lower courts. This case war-

rants the exercise of the Court's supervisory

powers, however, both because it is the only

way to avoid an injustice, and because the

nature of Riverso's evidentiary claims makes

them amenable to summary disposition.

Riverso is not asking the Court to weigh

the evidence to determine if it was sufficient

to sustain his conviction. Rather, Riverso's

claim is that the court of appeals’ affirmance

of his conviction rests on conclusions that

are not supported by any evidence. There is,

therefore, no need for the Court to resolve

disputed factual issues in order to rule on

Riverso's evidentiary claims. The yovernment

will have the opportunity in its Opposition to

demonstrate that the evidence Supports the

conclusions Riverso challenyes. If the yzov-

ernment can not summary reversal should fol-

low.

13

CONCLUSION

The petition for a writ of certiorari

should be granted and the judgment of the

court of appeals affirming Riverso's convic-

tion should be reversed.

Respectfully submitted.

GEORGE EDELSTEIN

605 W. 112th St. #5B

New York, NY 10025

(212) 662-4771

October 1991

14

llc

APPENDIX A

88-cr-217

SPRIZZO

RKW

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated term of the United States

Court of Appeals for the Second Circuit, held

at the United States Courthouse in the City of

New York, on the 30th day of April

, one thousand nine hundred and ninety-

one.

Present:

Honorable Ellsworth A. Van Graafeiland,

Honorable Ralph K. Winter,

Honorable John M. Walker, Jr.,

UNITED STATES OF AMERICA,

Appellee, Cross-Appellant,

We

EMANUELE ,ADAMITA, MICHELE

BERNARDO, CLAUDIO CALDERONE,

SALVATORE CANNAVO, SR.,

SALVATORE CARUSO, DOMENICO

CATALONO, GAETANO DiBENEDETTO,

JOHN EMBLETON, GIUSEPPE FICO,

RAFAEL FIUMARA, ABDUL AZIZ

KAKAR, GIUSEPPE LAROSA, EMANUELE

LOGIUDICE, VINCENZO MICELI, QO RD ER

MICHELE MODICA, ANGELO PALUMBO, ##89-1447,

ALDO PASTORE, FILIPPO RICUPA, -1489,

VINCENZO RIVERSO, PAOLA RIZZUTO, -1526, -154/7,

MATTEO ROMANO, RICHARD SABINO, -1589, -1598

CHARLES SALERNO, ALFREDO

SPAVENTO, GIUSEPPE TROIA, FRANK

ZIGON, LORENZO ZORZA,

(la)

2a

Defendants,

MICHELE BERNARDO, VINCENZO RIVERSO, ALFREDO

SPAVENTO,

Defendants-Appellants,

VINCENZO MICELI, MICHELE MODICA,

Defendants-Appellants, Cross-Appellees.

eae eae aaa aaa aaa aaa aaa aaa ae a ee ee

Appeal from the United States District

Court for the Southern District of New York.

This cause came on to be heard on the

transcript of record from the United States

District Court for the Southern District of New

York, and was argued.

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged, and decreed that the

judgment of said District Court be and it

hereby is affirmed in part and remanded in

part.

Michele Bernardo, Vincenzo Miceli, Michele

Modica, Vincenzo Riverso, and Alfredo Spavento

appeal from their convictions on narcotics

conspiracy and numerous substantive drug

charges. The government appeals from the

sentences imposed on Modica and Miceli, arguing

3a

that the district court failed to take account

of all of their relevant conduct. Appellants

raise a host of claims on appeal, all of which

are wholly meritless.

We first consider two claims joined by all

of the appellants and then address their

remaining individual claims. We then address

the government's cross-appeal.

A. Insufficient Evidence of a Single

Conspiracy

Appellants argue that, as a matter of law,

the evidence proved multiple conspiracies.

Appellants' principal contention is that there

was no connection between the Italian heroin-

for-cocaine swap -- in which Spavento, Riverso

and Bernardo were involved -- and the purely

domestic heroin and cocaine distribution

activities — in which all appellants were

involved.

Appellants do not challenge Judge

Sprizzo's instructions regarding the multiple

conspiracies issue, and we must therefore

4a

uphold defendants' convictions if"'any rational

trier of fact could have found the essential

elements of the crime beyond a reasonable

doubt.'" United States v, Casamento, 887 P.2d

1141, 1156 (2d Cir. 1989) (quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979)), cert,

denied, 110 S. Ct. 1138 (1990). Moreover, we

have held that, even when a conspiracy has

several spheres of operation, a single

conspiracy may still be found where the spheres

assist and cooperate with each other, United

States v. Taylor, 562 F.2d 1345, 1351 (2d

Cir.), cert, denied, 432 U.S. 909 (1977), and

each member participated in the conspiracy

"with a consciousness of its general nature and

extent." United States v. Alessi, 638 F.2d 466,

473 (2d Cir. 1980).

Viewed in the light most favorable to the

government, the evidence presented at trial

established that Spavento, with the assistance

of Riverso, managed a network of narcotics

suppliers and distributors. Although there was

5a

no direct link between Modica's and Miceli's

domestic drug trafficking activities and the

Italian heroin-for-cocaine scheme, both were

essential as sources of supply for the Spavento

network, as demonstrated by Spavento's and

Riverso's involvement in both operations. Where

a drug distribution enterprise depends on two

Or more sources of supply, we have found no bar

to including both in the same conspiracy.

Casamento, 887 F.2d at 1158; United States v.

Miley, 513 F.2d 1191, 1207 (2d Cir.), cert.

denied, 423 U.S. 842 (1975). B. Prejudicial

Toind I ia] fs oe Meri

Bernardo, Miceli and Modica contend that

they were prejudiced by being tried jointly

with their codefendants. Appellants were

properly joined under Fed. R. Crim. P. 8(b)

because they were all charged in the conspiracy

count with participating in a common plan. see

United States v. Bernstein, 533 F.2d 775, 789

(2d Cir.), cert, denied, 429 U.S. 998 (1976).

Appellants therefore must challenge the denial

6a

of their Rule 14 severance motions. As we have

repeatedly observed, they bear the "extremely

difficult burden," Casamento, 887 F.2d at 1149,

under that Rule of showing that the denial of

their severance motions caused "substantial

prejudice." Jd, at 1150. They have not carried

that burden.

No appellant offers a specific example of

prejudicial spillover other than arguments

concerning the sufficiency of evidence as to

whether there was a single criminal conspiracy

in which each appellant participated.

Miceli and Modica argue that their

defenses were anatagonistic to Spavento's

defense. However, Spavento's defense did not

prejudice them but rather falsely exculpated

them. In any event, they have not shown the

mutual exclusivity of defenses that is

necessary to support a severance motion. United

States v. Serooosh, 919 F.2d 835, 837 (2d

Cir. 1990).

Bernardo's objections to the length and

7a

complexity of the trial are similarly baseless.

Although Judge Sprizzo's comments and the

government's own brief indicate that the

evidence was inartfully presented at trial,

there is no indication from the jury's verdicts

or any other part of the record that the trial

was so unwieldy as to deny appellants their

right to a fair trial. The trial was thus

shorter and involved fewer defendants than

other trials in which we have found no

prejudice ina joint trial. See, e.4.,,

Casamento, 887 F.2d 1141. Accordingly, the

district court did not abuse its discretion by

denying the severance motions and permitting

the joint trial.

Ci Michele Bernardo

1. Right to Testify at Trial

Bernardo contends that the trial court

should have allowed him to testify about the

government's alleged breach of his cooperation

agreement and the withdrawal of his guilty

plea. He also argues that the court prevented

8a

him from testifying about threats the

government allegedly made against Bernardo and

his wife and about his relationship with his

codefendants.

In fact, the court permitted Bernardo to

testify about the alleged threats and about his

relationship with his codefendants. However,

Judge Sprizzo execluded testimony about the

plea agreement as irrelevant to Bernardo's

entrapment defense or any other material issue

and a prejudicial to Bernardo's codefendants.

At the same time, Judga Sprizzo invited

Bernardo's attorney to move for severance if he

believed that Bernardo was prejudiced by the

ruling. Bernardo's attorney declined to make

such a motion. In view of the decision to

continue with a joint trial, Bernardo's claim

of prejudice is questionable. Moreover, if

Bernardo had offered the proposed testimony,

the government would have been able to

introduce Bernardo's sworn admissions made

while he was cooperating, the effect of which

9a

would have been very prejudicial.

2. Similar Acts Evidence on Entrapment

Defense

Bernardo also argues that the trial court

should have allowed him to introduce a

videotaped conversation between two agents in

which one agent said that if the agents

conducted the operation well they "could go

someplace." Judge Sprizzo correctly ruled that

the videotaped conversation involved a

discussion of going "someplace" within the

narcotics conspiracy, rather than obtaining

personal promotions, and that the discussion of

taking a suspect into international waters in

order to effect an arrest had no probative

value concerning Bernardo's entrapment defense.

3. Failure to Submit a Prosecutorial

Misconduct Defense to the Jury

Bernardo argues that the district court

should have submitted his prosecutorial

misconduct defense to the jury. However, this

defense is "not for the jury to consider, but

10a

must be decided by the trial court." United

States v. Nunez-Rios 622 F.2d 1093, 1098 (2d

Cir. 1980). Bernardo's alternative argument

that the district court did not make proper

findings concerning the alleged prosecutorial

misconduct was waived by Bernardo's failure to

present the issue before trial. Id, at 1098-99.

In any event, the undercover operation did not

involve any unusual or extraordinary measures

and certainly was not sufficient to amount to a

denial of Bernardo's right to due process. See

Hampton v. United States, 425 U.S. 484, 495 n.7

(1976).

4. Ex Post Facto Application of

Lines

Bernardo contends that because there was

no narcotics activity involving import or

export after the effective date of the

Sentencing Guidelines, application of the

Guidelines to his offense violates the

constitutional prohibition of ex post facto

laws. However, there were domestic heroin

lla

sales, one of the objects of the conspiracy, by

members of the conspiracy in December 1987 and

March 1988. Acts in furtherance of the

conspiracy thug continued after the effective

date of the Guidelines, and Bernardo was

properly sentenced under the Guidelines. See

United States v. Story, 891 F.2d 988 (2d Cir.

1989).

Miceli and Modica argue, in essence, that

they were not members of the single conspiracy

charged in the indictment. However, each had

sufficient connection to, and knowledge of, the

Spavento narcotics distribution network to

Support the jury's verdict.

Viewed in the light most favorable to the

government, Miceli and Modica were involved in

numerous narcotics transactions with Spavento

and with Riverso, acting as Spavento's agent.

The scale of these transactions and their

12a

frequency were sufficient to put both Modica

and Miceli on notice that they were involved

with a substantial drug trafficking operation,

knowledge sufficient to connect them to the

charged conspiracy. See Casamento, 887 F.2d at

1156 ("{O)Jnce a conspiracy is shown to exist,

the evidence sufficient to link another

defendant to it need not be overwhelming") ;

United States v. Martino, 759 F.2d 998, 1003 (2

Cir. 1985) (each member need not know all

details concerning an unlawful agreement) ;

United States v.Papadakis, 510 F.2d 287, 297

(2d Cir.) (connection with one objective of

conspiracy is sufficient to connect defendant

with entire conspiracy), cert. denied, 421 U.S.

950 (1975).

Surveillance

Miceli and Modica argue that a twelve-

minute segment of a wiretap tape containing

noncriminal discussion demonstrates that the

agents failed to properly minimize their

13a

electronic surveillance. However, by failing to

offer specific evidence in support of their

minimization argument during pretrial

proceedings, appellants waived this argument.

See United States v, Sisca, 503 F.2d 1337 (2d

Cir.), cert, denied, 419 U.S. 1008 (1974). In

any event, there is substantial evidence that

the agents took reasonable steps to minimize

the intrusiveness of the wiretap on Modica's

car, including the use of an interpreter and

spot-checking. The twelve-minute noncriminal

section of GX 1262 was by itself not so

extensive as to show inadequate minimization

efforts.

x Failure to Prove Chain of Custody for

Miceli's Wallet

Miceli contends that the government failed

to prove the chain of custody for the contents

of his wallet which were admitted into evidence

against him at trial. However, "the government

need only prove a rational basis for concluding

jhat an exhibit is what it is claimed to be."

14a

United States v. Hon, 904 F.2d 803, 809 (2d

Cir. 1990). A district court's ruling that an

exhibit has been properly authenticated is

reviewed under an abuse of discretion standard.

Id. at 810. Because Miceli offers no factual

basis to overturn the district court's

decision, there was no error.

4. Constructive Amendment of Indictment

Miceli argues that the government's

evidence was insufficient to prove the charged

conspiracy but instead proved a series of

unrelated smaller conspiracies, resulting in a

variance between the offense of indictment and

the offense of conviction. However, we have

already concluded that the evidence of a single

conspiracy and of Micheli's participation in

that conspiracy was sufficient.

Modica contends that a shirt in the focus

of the government's case from the domestic drug

distribution operation to the Italian heroin-

for-cocaine operation violated Modica's right

to be indicted by a grand jury. However, the

15a

shift in emphasis did not "modify essential

elements of the offense charged," United

States v. Mollica, 849 F.2d 723, 729 (2d Cir.

1988), because the original indictment charged

both the domestic and international operations

as objectives of the conspiracy and the proof

at trial showed the existence and

interrelatedness of both branches.

3. Impact of Media Coverage on the Jury

Miceli argues that the district court

should have granted his motion for a mistrial;

on the grounds of prejudicial publicity. The

court conducted extensive voir dire after the

jurors' exposure to newspaper accounts of the

dismissal of charges against seven defendants

became known. There is no evidence of an abuse

of discretion in permitting the jurors who were

exposed to remain. United States v. Rivalta,

892 F.2d 223, 2268 (2d Cir. 1969).

E. Vincenzo Riverso

+. Insufficient Evidence That Rivergo

l6a

Riverso contends that the government's

evidence was legally insufficient to prove that

he was a knowing participated in the charged

conspiracy. However, there was overwhelming

evidence that Riverso participated in gales to

Agent Caruso and in the use of Jerry Mark as a

courier to smuggle cocaine into Italy and actes

as Spavento's representative in these

transactions. There was thus more than

sufficient evidence to connect Riverso to

Spavento's activities and thus to the charged

conspiracy. See Papadakis, 510 F.2d at 297.

2. Ineffective Assistance of Counsel

Riverso also argues that, by conceding

during summation that Riverso was the "Enzo"

mentioned in a tape-recorded conversation

between Spavento and Rafael Fiumara concerning

a planned heroin sale, trial counsel deprived

Riverso of the effective assistance of counsel.

However, the elaborate seauence of intercepted

conversations, undercover meetings and physical

Surveillances unequivocally established that

17a

Fiumara's reference in the taped conversation

was to Riverso and no one else. The concession

was thus a reasonable strategic decision

because a denial would very likely have

weakened Riverso's argument. In any event, the

concession could not have prejudiced Riverso in

light of the overwhelming evidence of his

participation in the relevant narcotics

negotiations and transactions.

7 Government's Alleged Use of False

Exculpatory Evidence

Riverso contends that the government

offered false testimony and withheld

exculpatory evidence. Riverso claims that the

testimony of accomplice witness Jerry Mark,

placing Riverso at a meeting at the Rome train

station, was necessarily false because an

affidavit filed by FBI Special Agent Wasky did

not state that Italian law enforcement officers

observed Riverso at the train station. However,

a photograph taken by Italian officers in the

18a

vicinity of the Rome train station and admitted

into evidence shows a meeting among Mark,

Fiumara and Riverso, and therefore corroborates

Mark's testimony. Finally, although Rivergo

states that there were potentially exculpatory

Italian police reports, he has offered no

evidence in support of that naked allegation.

P. Alfredo Spavento

: Erroneously Found to be an Organizer

Spavento argues that the district court

improperly enhanced his sentence upon an

erroneous finding that he was an organizer in

the conspiracy. Howevser, the evidence was

overwhelming to this effect.

Section 3Bl.1l(c) of the Guidelines

provides that a defandant's offense level

should be increased by two levels "([i]Jf the

defendant was an organizer, leader, manager, or

supervisor in any criminal activity." The

district court's finding that Spavento was an

"organizer," and "core conspirator" who played

a “central role,"“was amply supported by the

19a

evidence that Spavento supervised Riverso,

Bernardo and Fiumara and that he arranged

numerous narcotics transactions.

2. Denial of Continuance Without

Spavento also argues that the district

court abused its discretion by denying his

motion for a continuance without holding an

evidentiary hearing. In fact, Judge Sprizzo

adjourned the trial for three weeks after

Spavento complained of chest pains during his

direct examination. Medical examination

disclosed no ailments. Judge Sprizzo

speculated, with considerable plausibility,

that Spavento was feigning illness to avoid the

upcoming cross-examination. Judge Sprizzo also

instructed the jury that Spavento was

thereafter testifying in some physical

discomfort. In the circumstances, there was no

abuse of discretion in denying the motion for

an additional continuance. See Bernstein vy,

Travia, 495 P.2d 1180, 1182 (2d Cir. 1974);

20a

United States v. Guzman, 754 F.2d 482, 486

(1985), cert, denied, 474 U.S. 1054 (1986).

Finally, Spavento did not request an

evidentiary hearing or make any factual

argument that required additional factfinding.

G. : = ica"

and Miceli's Sentences

The district court ruled that only

narcotics transactions shown to be directly

connected to the charged conspiracy were

“relevant conduct" for the purposes of

computing the base offense Level. After that

ruling, we held that "[q]uantities of narcotics

neither charged in the indictment nor

physically seized are ‘relevant conduct'

if they were part of tho same course of conduct

as the counts leading to conviction."United

States v. Schaper, 903 F. 2d 891, 898 (2d Cir.

1990) . See also United States v. Colon, 905

F.2d 580, 586-88 (2d Cir. 1990); Bedova, 878

F.2d 73, 75 (2d Cir. 1989).

Modica's and Miceli's narcotics

21a

transactions that are not connected to tho

charged conspiracy could nonetheless have been

part of the same "course of conduct" that led

to their participation in the conspiracy. We

thus remand for the district court to

reconsider the sentences imposed on Miceli and

Modica. On remand, they should be sentenced

based on any and all narcotics transactions the

government can prove by a preponderance of the

evidence to have been part of the same "pattern

of criminal behavior" as their participation in

the charged conspiracy. See United States v.

Santiago, 906 F.2d 867, 872 (2d Cir. 1990).

The government also contends that on

remand it should be able to argue that Modica

and Miceli should be sentenced on the basis of

all of the narcotics chargeable to the

conspiracy. See United States v. Cardenas, 917

F.2d 683, 687 (2d Cir. 1990). However, the

government failed to raise this argument as an

objection to the presentence report, and the

district court therefore ruled that the

22a

government had waived the argument. The

government contends that, since its position

during the sentencing hearing was that Modica's

and Miceli's own heroin dealings placed them in

the maximum ten kilogram or greater category in

the applicable drug weight table, any proposal

to include the heroin dealings of their

coconspirators would have been superfiuous. The

government argues that once the district court

rejected the government's and the Probation

Department's initial calculations, the

government should not have been barred from

urging an alternative ground on which its

sentencing recommendation could be sustained.

The district court's waiver ruling was

based on Southern District of New York Local

Rule 10(b), which provides that objections to a

presentence report must be made at least ten

days before sentencing. In light of the local

rule, we conclude that the district court was

justified in ruling that the government had

waived its argument.

_—

Affirmed in part and remanded in part.

23a

Hon. Ellsworth A. Van Graafeiland, U.S.C.J.

Hon. Ralph K. Winter, U.S.C.JdJ.

Hon. John M. Walker, Jr., U.S.C.JdJ.

N.B.: THIS SUMMARY ORDER WILL NOT BE

PUBLISHED IN THE FEDERAL REPORTER AND SHOULD

NOT BE CITED OR OTHERWISE RELIED UPON IN

UNRELATED CASES BEFORE THIS OR ANY OTHER

COURT.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

ee ee ee

UNITED STATES OF AMERICA

Appellee-Cross-Appellant,

Vv.

ADAMITA Et Al.,

Defendants,

VINCENZO MICELI, MICHAEL MODICA,

Defendant-Appellant-Cross-Appellees,

MICHAEL BERNARDO, ALFREDO SPAVENTO,

VINCENZO RIVERSO,

Defendants-Appellants.

DOCKET NUMBER

89-1447 (L),

89-1489, 89-1526

89-1547, 89-1589

89-1598

A petition for rehearing having been

filed herein by Defendant-Appellant, Vincenzo

Riverso

Upon consideration by the panel that

heard the appeal, it is

Ordered that the said petition for re-

hearing is DENIED.

FILED: JUL 16, 1991

/s/

ELAINE B. GOLDSMITH

Clerk

(24a)

APPENDIX C

DEFENDANTS' SALES OF HEROIN AND COCAINE*

(sources: indictment, gov't's brief on appeal)

1987 seller grams (price) source/broker

Jan Bernardo 250 (40,000) unknown

Feb Bernardo 250 (40,000) unknown

Mar Bernardo 250 (40,000) unknown

Apr Bernardo 250 (27,000) Fiumara

Apr Rizzuto *500 (15,000) unknown

May Rizzuto 25 (sample) unknown

May Adamita 1 (sample) unknown

May Adamita *500 (15,000) unknown

May Bernardo 114 (10,000) Fiumara

Jun Adamita 28 (9,500) unknown

Jun Rizzuto 28 (9,000) unknown

Jul Adamita 28 (10,000) es

Auy Adamita 280 (90,000) unknown

Auy Modica 1000 (210,000) Spavento

Miceli :

Nov Adamita 28 (10,000) unknown

Dec Adamita 90 (35,000) Modica Miceli

Spavento

Dec Modica 500 (110,000) Spavento

Jan 88 Rizzuto 26 (6,500) unknown

Mar 88 Modica 1000 (195,000) Kakar

500 (arrest) Modica Miceli

Mar 88 Adamita

(25a)