# Petition for Writ of Certiorari — Riverso v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 502 U.S. 1031

## Text

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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
r

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,

.

OS tSe3

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)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2903%3A1. Public record. Not legal advice.