Appendix — Errante v. United States

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Appendix A

Opinion of United States Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Nos, 83, 84, Dockets 82-1082, 82-1096

UNITED STATES OF AMERICA,

Appellee,

Vv.

VITO LORUSSO and JOSEPH ERRANTE,

Defendants-Appellants,

Argued: Aug, 31, 1982 Decided: Dec, 2, 1982

Defendants were convicted before the United States

District Court for the Southern District of New \ *k,

Thomas P. Griesa, J., of conspiracy to distribute an.’

possess with intent to distribute heroin and of possession

of heroin, and they appealed. The Court of Appeals,

Kearse, Circuit Judge, held that; (1) submission of

reduced count of simple possession to jury after grant of

defendants’ motions for judgment of acquittal on count

charging possession with intent to distribute was within

court’s authority; (2) action of trial court on such count

did not violate principles of double jeopardy; and (3) evi-

dence was sufficient to support finding of conspiracy,

notwithstanding defendant's suspicion that co-defend-

ant was police officer and defendant's quarrels with

co-defendant.

Judgments affirmed.

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Appendix A - Opinion of United States Court of Appeals

PHILIP LE B. DOUGLAS,

Asst. U.S. Atty., New York City

(John S. Martin, Jr., U.S. Atty. for the

S.D. of N.Y., Roanne L. Mann, Asst. U.S.

Atty., New York City, on the brief),

for appellee.

MICHAEL POLLACK,

New York City (Edward Gasthalter,

John L. Pollok, New York City,

on the brief),

for defendant-appellant Errante.

J. JEFFREY WEISENFELD,

New York City (Goldberger, Feldman,

Dubin & Weisenfeld, P.C., New York

City, on the brief),

for defendant-appellant LoRusso.

Before KEARSE, CARDAMONE and WINTER,

Circuit Judges.

KEARSE, Circuit Judge:

Joseph Errante and Vito LoRusso appeal from

judgments entered after a jury trial in the United

States District Court for the Southern District of New

York, Thomas P. Griesa, Judge, convicting them of

possession of heroin in violation of 21 U.S.C. § 844

(1976), and of conspiring to distribute and possess with

intent to distribute heroin, in violation of 21 U.S.C.

§ 846 (1976). Errante was sentenced to concurrent terms

of imprisonment of five years on the conspiracy count

and one year on the possession count. LoRusso was sen-

tenced to concurrent terms of imprisonment of two years

on the conspiracy count and one year on the possession

count.

We affirm the convictions.

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Appendix A - Opinion of United States Couri of Appeals

I. FACTS

A. Events Leading to the Prosecution

The case arises out of an undercover operation by

the United States Drug Enforcement Agency (“DEA”),

conducted by DEA Special Agent John A. Costanzo,

who was regularly stationed in Milan, Italy. Costanzo

was assisted by a confidential informant employed by

the DEA and identified only as “Mimmo.” According

to the trial testimony of Costanzo and Mimmo, the

operation had its genesis in a dinner attended by Cos-

tanzo and Mimmo in September 1980 at the Santa Lucia

restaurant in the Little Italy section of Manhattan. At

the dinner, Mimmo introduced Costanzo to LoRusso, the

proprietor of the Santa Lucia.

In January 1981, after Mimmo and Costanzo had

returned to Milan, Mimmo telephoned LoRusso to chat.

LoRusso stated that he had been trying to contact

Mimmo because a friend of LoRusso wanted to arrange

a million-dollar purchase of heroin. After a number of

additional telephone calls, LoRusso flew to Rome in the

company of Errante on January 24; they were met at the

airport by Mimmo and Costanzo. LoRusso introduced

Errante and, outside of Errante’s hearing, vouched for

him despite Costanzo’s comment that Errante was

wearing “big black shoes” such as policemen wear.

The four men eventually went to a restaurant, where

Errante stated that he was interested in procuring

heroin as a representative of some people in New York

who were trying to start a small family for the dis-

tribution of heroin. The ensuing conversation con-

cerned amounts, price, delivery, and the testing of a

sample to determine the purity of the heroin. LoRusso

participated in the conversation. Later that day, the

four met again, and tentatively agreed on the sale of

ten kilograms of heroin, for which Errante proposed to

pay the New York market price prevailing at the time of

delivery. At that time Errante stated that since

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Appendix A - Opinion of United States Court of Appeals

everything had been resolved, he would return to New

York the following day to consult with his people.

Errante asked LoRusso, who was not returning to New

York with Errante, to telephone him on January 28 to

learn what Errante’s people had decided. LoRusso said

he would do so and that he would then telephone

Mimmo with the information. On January 28, LoRusso

telephoned Mimmo and reported that Errante’s family

were in accord with what had been agreed.

On February 5, 1981, Mimmo and Costanzo arrived

in New York to attempt to conclude the sale. Matters

did not proceed smoothly. On February 7, Costanzo and

Mimmo met with LoRusso and Errante, and Costanzo

stated that the price of the ten kilos of heroin would be

$120,000 per kilo. Errante stated that he would have to

check the price with the people above him, and the four

men agreed to meet again the next day. At this point,

however, LoRusso commenced to question Errante’s

bona fides and suggested that Errante might be a police-

man. Costanzo stalked away in irritation after pointing

out that LoRusso had brought Errante to Rome to intro-

duce him and had vouched for him; and a loud argument

erupted between LoRusso and Errante.

Despite their argument, LoRusso and Errante ap-

peared together the next day for the scheduled meeting

with Mimmo and Costanzo. At that meeting, it was

agreed that the price of the heroin would be $120,000 per

kilogram, but Errante stated that his people would not

buy all ten kilos at once and preferred to buy one kilo

at a time. Costanzo suggested a compromise of five

kilos, but no agreement was reached. It was agreed,

however, that when an amount was settled on, deliveries

would take place in the following way: Errante and an

associate would bring the money to the Santa Lucia,

where Mimmo and Costanzo would count it and check

its genuineness; Errante and Costanzo would then go to

where the heroin was stored and Errante would have it

tested; Mimmo and Errante’s associate would remain at

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Appendix A - Opinion of United States Court of Appeals

the restaurant with the money; if the heroin was of

satisfactory quality, Errante would speak to his associ-

ate at the Santa Lucia and instruct him to allow Mimmo

to leave with the money while Errante took possession

of the heroin. At this February 8 meeting, LoRusso

again speculated that Errante might be a policeman.

That evening, when Mimmo went to the Santa

Lucia, he found Errante and LoRusso arguing about

LoRusso’s suspicions. Errante suggested that they

settle the matter by speaking to Errante’s people, and

he and LoRusso left the restaurant. LoRusso later re-

turned alone and told Mimmo that the man they had

gone to see, referred to only as “Mike,” had not been

available.

On February 9 at the Santa Lucia, Costanzo and

Errante agreed to the sale of one kilogram of heroin and

arranged for delivery of a sample for testing. Costanzo

informed Mimmo and LoRusso of the arrangements.

LoRusso repeated his suspicion that Errante was a

policeman, but also expressed concern that in the de-

livery procedures, Errante might attempt to take the

heroin and keep the money. LoRusso suggested that he

be allowed to remove the money to another restaurant or

to take it to the cellar of the Santa Lucia whence he

could escape. Costanzo and Mimmo became angry with

LoRusso and told him that they did not wish to have

anything further to do with him.

That evening, however, when Mimmo returned to

the restaurant, LoRusso said that he had managed to

contact “Mike” and indicated that his suspicions of

Errante had been allayed, saying there would be no

further problem. Mimmo then told LoRusso that

LoRusso could attend the next day’s meeting, at which

the sample would be delivered.

On February 10, in the presence of LoRusso and

Mimmo in LoRusso’s car, Costanzo gave Errante a

sample of heroin to be tested by Errante’s chemist.

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Appendix A - Opinion of United States Court of Appeals

Although the test would have required only a small frac-

tion of one gram, Costanzo gave Errante three grams,

which had a retail value of approximately $6,000.

Errante told LoRusso to call him later to learn the re-

sults of the test. LoRusso thereafter duly telephoned

Errante and then informed Mimmo that the delivery

could go forward the next day.

On February 11, however, when Costanzo and

another DEA agent met Errante and LoRusso at the

Santa Lucia, Errante demanded that the heroin be sup-

plied in advance of payment. At this point Costanzo

refused to pursue the deal and he and his partner left

the restaurant.

Costanzo made two unsuccessful efforts to revive

the transaction. First, he had Mimmo telephone Lo-

Russo immediately, and Mimmo and LoRusso met pri-

vately that evening. LoRusso complained to Mimmo

that Costanzo should not have brought his companion

to the meeting earlier that day, since the companion

was a stranger to LoRusso. He also suggested that

Costanzo should have agreed to deliver the heroin on

consignment, and asked whether there was a way the

deal could be revived. This conversation was inter-

rupted without any resolution of the matter. Mimmo’s

second attempt took place on February 26, after he had

returned to Milan. Mimmo telephoned LoRusso and

stated that Costanzo was now willing to supply the

heroin in advance of payment, and asked whether Lo-

Russo could contact Errante. LoRusso replied that

Errante did not want to know anything more, that Lo-

Russo had not seen him for two weeks, and that Errante

had instructed him to “tear everything,” including

Errante’s phone number.

B. The Indictment and Proceedings During Trial

Errante and LoRusso were arrested in September

1981 and were indicted on two counts. Count 1 charged

them with conspiring with each other and with other

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Appendix A - Opinion of United States Court of Appeals

persons unknown to the grand jury to distribute and

possess with intent to distribute heroin, in violation

of 21 U.S.C. § 845. Count 2 charged each defendant with

possession with intent to distribute heorin, in violation

of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A) (1976).

At trial the government’s principal witnesses were

Costanzo and Mimmo, who testified to the events de-

scribed above. Neither defendant testified.

At the close of the government’s case, the defend-

ants moved pursuant to Fed.R.Crim.P. 29(a) for judg-

ments of acquittal as to count 2 on the ground that the

evidence was insufficient to establish beyond a reason-

able doubt that they had intended to distribute the

heroin in their possession.' The trial court orally

granted the motions, stating that the proof of intent to

distribute was “entirely speculative and Count 2 is dis-

missed.” (Tr. 733).

The government immediately moved pursuant to

Fed.R.Crim.P. 31(c) to have the court submit a charge

of simple possession, without intent to distribute, in

' Fed. R. Crim.P. 29(a) provides, in pertinent part, as follows:

The court on motion of a defendant or of its own motion shall

order the entry of judgment of acquittal of one or more offenses

charged in the indictment or information after the evidence on

either side is closed if the evidence is insufficient to sustain

a conviction of such offense or offenses.

The government advanced two arguments to support its contention

that intent had been proven. First, it contended that Errante’s

transfer of heroin to a chemist would have been a distribution (a

proposition with which the court disagreed), and argued that

Errante’s statements that he would have a chemist test the heroin

therefore proved intent to distribute. Second, the government con-

tended that since only a small portion of the three grams of heroin

given to Errante was needed for testing, it would “def] y] all common

sense” to believe the defendants would not distribute the excess

amount. (Tr. 731.) The defendants argued that since the government

controlled the size of the sample, it would be unfair for the govern-

ment to be able to prove, merely from the availability of the excess,

that distribution was intended.

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Appendix A - Opinion of United States Court of Appeals

violation of 21 U.S.C. § 844, to the jury as a lesser-

included offense within count 2. The colloquy, begin-

ing with the court’s dismissal of the original count 2,

was as follows:

THE COURT: I think it is entirely speculative

and Count 2 is dismissed.

MR. DOUGLAS [Assistant United States

Attorney]: We would then move pursuant to 31(c)

to have Count 2 considered under the lesser in-

cluded offense. 31(c) was passed specifically to

give the government an opportunity to still go to

the jury even if its proof falls short of the greater

offense if there is a logical reason to find the

defendants guilty of the lesser included offense.

THE COURT: What is the lesser included

offense?

MR. DOUGLAS: Simple possession without

intent to distribute.

(Tr. 733.) Defendants objected on the ground that sub-

mission of the charge of simple possession would be

improper under Rule 31(c) in light of the court’s action

on the original count 2, and that submission of the re-

duced count would constitute an impermissible variance

in the indictment. The court gave both sides until the

next day to present arguments.

In the argument on the government’s motion, de-

fendants adhered to their initial objections and argued

in addition that, since “[a] judgment of acquittal has

been entered,” (Tr. 771), such a submission would violate

their rights under the Double Jeopardy Clause of the

Constitution. The trial judge rejected this argument,

pointing out that judgments had not in fact been en-

tered, and granted the government’s motion, as reflected

in the following colloquy:

THE COURT: ...I think the double jeopardy

argument is not a profitable line of inquiry.

MR. SOROKA [Counsel for LoRusso]: I am

giving you that reasoning because the record of

this case is that a judgment of acquittal was

entered.

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Appendix A - Opinion of United States Court of Appeals

THE COURT: No, a judgment of acquittal

hasn't been entered. I have granted a motion.

MR. SOROKA: Pursuant to Rule 29 for a judg-

ment of acquittal.

MR. DOUGLAS: The judgment was never

entered.

THE COURT: Look, the trial is still going on.

The motion was granted. I could reconsider the

motion if I wanted to and it wouldn't be double

jeopardy. The government could move for reargu-

ment.

(Tr. 776-77.)

Accordingly, the court agreed to submit count 2 to

the jury as a charge of simple possession. The jury con-

victed both Errante and LoRusso on count 1 and on

count 2 as reduced.

II. DISCUSSION

On appeal, Errante and LoRusso challenge

their convictions on a number of grounds.’ They argue

® LoRusso also challenges his sentence on the ground that no

evidentiary hearing was held on his challenges to the contents of his

presentence report. We find no error. The procedure to be followed

in entertaining challenges to presentence reports lies within the

discretion of the sentencing judge, United States v. Needles, 472 F.2d

652, 653 (2d Cir. 1973), who should adopt a procedure that will

“permit that presentation by the defendant which will enable the

sentencing judge to grasp the relevant facts correctly.” United States

v. Robin, 542 F.2d 775, 779 (2d Cir. 1976). Here an adequate amount

of time was allowed for LoRusso’s review of the report, and his

counsel submitted to the sentencing court two letters presenting

LoRusso's explanations of certain matters described in the report.

The sentencing judge had discretion to determine whether these sub-

missions should be pursued in an evidentiary hearing, and his deci-

sion not to hold such a hearing was not an abuse of discretion. There

being no indication that LoRusso’s sentence was based on incorrect

information, the sentence is not reviewable. E.g., United States v.

Tramunti, 513 F.2d 1087, 1120 (2d Cir.), cert. denied, 423 U.S. 832,

96 S.Ct. 55, 46 L.Ed.2d 50 (1975).

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Appendix A - Opinion of United States Court of Appeals

principally that the trial court’s submission of a reduced

count 2 to the jury, after granting their motions to dis-

miss the original count 2, was unauthorized and sub-

jected them to double jeopardy, and that the evidence

was insufficient to convict them of conspiracy as

charged in count 1. Finding no merit in any of their

contentions, we affirm.

A. Submission to the Jury of Reduced Count 2

Defendants renew on appeal their objections to the

trial court’s decision to submit to the jury a charge of

simple possession of heroin, without intent to distribute,

as a lesser offense included within the original count 2,

viz., possession with intent to distribute. They contend

that the modification of count 2 by the court constituted

an impermissible variance in the indictment handed

down by the grand jury; that the court had no power to

submit an uncharged lesser-included offense to the jury

without also submitting the greater offense; that since

the court had dismissed count 2, it no longer had the

power to submit the lesser-included offense; and that

even if the power existed, submission of the reduced

count after dismissal of the greater offense violated their

rights not to be subjected to double jeopardy. We find no

merit in any of these contentions.

1. Power To Submit Reduced Charge: Rule 31(c)

The decision of the district court to submit

the reduced count 2 to the jury was well within the

court’s authority. Fed.R.Crim.P. 31(c) provides that

“(tlhe defendant may be found guilty of an offense

necessarily included in the offense charged...,” ie.,a

lesser-included offense.’ The trial judge may implement

* An uncharged offense is a lesser-included offense if it is com-

posed of fewer than all of the elements of the offense charged, and if

all of its elements are elements of the offense charged, United States

v. Giampino, 680 F.2d 898, 901 (2d Cir. 1932). Because all the ele-

ments of a lesser-included offense are by definition comprised within

(Footnote continued on following page.)

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Appendix A - Opinion of United States Court of Appeals

Rule 31(c)in a number of ways. He may instruct the jury

that it may find the defendant guilty of either the

greater or the lesser-included offense. See United States

v. Giampino, 680 F.2d 898 (2d Cir. 1982). If the jury

returns a verdict of guilty on the greater offense, the

judge may enter a judgment of guilty on the lesser of-

fense alone. Virgin Islands v. Josiah, 641 F.2d 1103,

1108 (3d Cir. 1981); cf. United States v. Swiderski, 548

F.2d 445, 452 (2d Cir. 1977). Or, prior to submitting the

case to the jury, the trial judge may decide to give effect

to the provisions of both Rule 31(c) and Rule 29a), see

note 1 supra, and submit to the jury only the lesser

offense if he has determined that the evidence is in-

sufficient to establish beyond a reasonable doubt that

element of the greater offense which is not an ele-

ment of the lesser offense. United States v. Blackwell,

515 F.2d 125, 126-27 (4th Cir. 1975) (per curiam). The last

described method was that adopted here.

We are unpersuaded by the defendant's conten-

tion that the trial court’s power in the present case to

submit the lesser-included offense pursuant to Rule 31(c)

was extinguished by the court’s oral announcement that

it was dismissing count 2 on defendants’ motions

(Footnote continued from preceding page.)

the greater offense, the grand jury in charging the greater has also

charged the lesser. The submission, therefore, of the lesser offense

is within the scope of the indictment. United States v. Blackwell,

515 F.2d 125 (4th Cir. 1975) (per curiam).

The primary purpose of the 'vsser-included-offense rule is “to aid

the prosecution when it has failed to prove all of the elements of the

offense charged in the indictment.” United States v. Giampino,

supra, 680 F.2d at 900 n.l. There is no question that the crime of

simple possession, in violation of § 844, is lesser than and wholly

included within the crime of possession with intent to distribute, in

violation of §§ 812, 841(a)(1), and 841 (b\(1XA). Since there was dis-

pute as to establishment of intent to distribute, i.e., the element

required for proof of the greater, but not the lesser, offense, a lesser-

included-offense charge was required if either party requested it. See

Sansone v. United States, 380 U.S. 343, 350, 85 S.Ct. 1004, 1009, 13

L,.Ed.2d 882 (1965): United States v. Giampino, supra.

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Appendix A - Opinion of United States Court of Appeals

pursuant to Rule 29 for judgments of acquittal. Al-

though Rule 31(c) would have had no application if there

were no pending charge under count 2, that was not the

circumstance here. The court's oral granting of defend-

ants’ motions for acquittal on count 2 was no more than

an interlocutory order, and count 2 remained pending

since no judgment had been entered pursuant to Fed.R.

Crim.P. 32(b)(1). While the Federal Rules of Criminal

Procedure contain no explicit provisions granting the

court authority to modify or rescind its orders before a

judgment has been entered, Rule 2 states that “[t]hese

rules are intended to provide for the just determination

of every criminal proceeding,” and Rule 57(b) provides

that “[i]f no procedure is specifically prescribed by rule,

the court may proceed in any lawful manner not incon-

sistent with these rules or with any applicable statute.”

A district court has the inherent power to reconsider and

modify its interlocutory orders prior to the entry of judg-

ment, whether they be oral, e.g., United States v. Green,

414 F.2d 1174, 1175 (D.C, Cir. 1969) (trial judge had

authority to withdraw oral decision granting defend-

ant’s motion to dismiss indictment), or written, e.g.,

United States v. Jerry, 487 F.2d 600,604-05 (3d Cir, 1973)

(district court had authority to rescind written order

improvidently permitting defendant to withdraw guilty

plea); cf. United Staes v. Benz, 282 U.S. 304, 306-07, 51

S.Ct. 113, 114, 75 L.Ed. 354 (1931) (stating general rule

that judgments, decrees, and orders in civil or criminal

cases may be modified by court within the term in which

they were entered), and there is no provision in the rules

or any statute that is inconsistent with this power. As

the court in United States v. Jerry stated,

{njothing in the Rules limits the power of the

court to correct mistakes made in its handling of a

case so long as the court’s jurisdiction continues,

ie., until the entry of judgment. In short, the

power to grant relief from erroneous interlocutory

orders, exercised in justice and good conscience,

has long been recognized as within the plenary

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Appendix A - Opinion of United States Court of Appeals

power of courts until entry of final judgment and

is not inconsistent with any of the Rules.

487 F.2d at 604. Thus,

whether the case sub judice be civil or criminal[,]

so long as the district court has jurisdiction over

the case, it possesses inherent power over inter-

locutory orders, and can reconsider them when it

is consonant with justice to do so.

Id. at 605.

We conclude that the action of the trial court here in

promptly deciding to submit a reduced count 2 to the

jury, thereby modifying its oral decision to dismiss

count 2 entirely, was well within the court's authority

and was properly designed to ensure the just determina-

tion of the charges brought against these defendants,

2. The Claim of Double Jeopardy

Notwithstanding the trial court’s authority under

the rules and its inherent power to modify its interlocu-

tory decisions, a change in decision would be imper-

missible if it violated a defendant’s constitutional right

not to be placed twice in jeopardy for the same offense.

We find no such constitutional violation here.

The Double Jeopardy Clause provides three

fundamental protections:

“It protects against a second prosecution for

the same offense after acquittal. It protects

against a second prosecution for the same offense

after conviction. And it protects against multiple

punishment for the same offense.”

United States v. Wilson, 420 U.S, 332, 343, 95 S.Ct. 1013,

1021, 438 L.Ed.2d 232 (1975) (quoting North Carolina v.

Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d

656 (1969)). The phrase “the same offense” encom-

passes both the offense charged and any lesser offense

necessarily included therein. Thus an acquittal of a

greater offense precludes a subsequent prosecution for

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Appendix A - Opinion of United States Court of Appeals

a lesser-included offense. See United States v. Ball, 163

U.S. 662, 670, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896).

The principle underlying the Double Jeopardy Clause

is that the State with all its resources and power

should not be allowed to make repeated attempts

to convict an individual for an alleged offense,

thereby subjecting him to embarrassment, ex-

pense and ordeal and compelling him to live in a

continuing state of anxiety and insecurity, as well

as enhancing the possibility that even though

innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct.

221, 223, 2 L.Ed.2d 199 (1957).

These protections have been viewed in a

commonsense fashion, and “where there is no threat of

either multiple punishment or successive prosecutions,

the Double Jeopardy Clause is not offended.” United

States v. Wilson, supra, 420 U.S, at 344, 95 S.Ct. at 1022

(footnote omitted), For example, although the right to

the government to appeal an adverse judgment in a

criminal case is quite limited, see, e.g., id. at 352, 95 S.Ct.

at 1026; United States v. Sanges, 144 U.S. 310, 12 S.Ct.

609, 36 L.Ed.2a 445 (1892), a statutorily authorized

appeal by the government is constitutionally per-

missible if a reversal will not require that the defendant

be tried a second time:

Although review of any ruling of law discharging

a defendant obviously enhances the likelihood of

conviction and subjects him to continuing ex-

pense and anxiety, a defendant has no legitimate

claim to benefit from an error of law when that

error could be corrected without subjecting him

to a second trial before a second trier of fact.

United States v. Wilson, supra, 420 U.S. at 345, 95 S.Ct.

at 1022. Inversely,

[a] judgment of acquittal, whether based on a

jury verdict of not guilty or on a ruling by the

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court that the evidence is insufficient to convict,

may not be appealed and terminates the prosecu-

tion when a second trial would be necessitated by

a reversal.

United States v. Scott, 437 U.S. 82, 91, 98 S.Ct, 2187,

2193, 57 L.Ed.2d 65 (1978).

By parity of reasoning, we see no reason why the

trial court in the present case was not free before the

entry of judgment to amend its own ruling since it did

so without subjecting the defendants to a second trial.‘

Normally a judgment of acquittal of a charge, entered

prior to verdict on the ground that the evidence was in-

sufficient, would terminate the prosecution on that

charge and bar retrial of the defendant on that, or any

lesser-included, charge. Where no judgment has been

entered, however, and there has been no dismissal of the

jury (nor any indication to the jury of a ruling that could

prejudice the defendant on such counts as are eventually

submitted), there appears to be no constitutional impedi-

ment to the court’s modification of its oral decision to

dismiss the original count.

We do not suggest that entry of a judgment

pursuant to Rule 32(b)(1) is a prerequisite to the termina-

tion of the prosecution for double jeopardy purposes. A

verdict of acquittal, although not followed by any judg-

ment, is a bar to a subsequent prosecution for the same

offense.” United States v. Ball, supra, 163 U.S. at 671,

15 S.Ct. at 1195. And had the jury been dismissed fol-

lowing the court’s oral decision, the absence of a judg-

ment would have been irrelevant to the constitutional

issue. Rather, we advert to the absence of a judgment

‘ We do not suggest that in the present case the government

could have appealed the trial court’s dismissal of count 2, had the

dismissal terminated the prosecution on that count, since a reversal

would have mandated a second trial. United States v. Scott, supra,

437 U.S. at 91, 98 S.Ct. at 2193.

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Appendix A - Opinion of United States Court of Appeals

merely to emphasize the inchoate nature of the oral

decision seized on by the defendants. Cf. United States

v. Chinchic, 655 F.2d 547, 549-50 (4th Cir. 1981) (jury’s

initial verdict of acquittal, which was not fully an-

nounced in open court, was merely preliminary and not

binding on the jury; consequently, retrial of defendant

after a change in juror vote resulted in deadlocked jury

did not constitute double jeopardy). In the circum-

stances of this case, where the court’s oral decision

was followed promptly by the modification providing

for the reduction instead of the elimination of count 2,

and where the reduced count could be, and was, sub-

mitted in the normal course of the trial to the original

jury, we conclude that the action of the trial court did

not violate principles of double jeopardy.

B. Sufficiency of the Evidence of Conspiracy

Defendants assert two principal grounds for

their contention that the evidence at trial was insuffi-

cient to convict them of conspiracy to distribute and

possess with intent to distribute heroin. First they argue

that LoRusso’s suspicion that Errante was a police

officer and his quarrels with Errante tended to show

that there was never any agreement between Errante

and LoRusso. In addition they argue that the evidence

failed to show that their interest in heroin ripened into

any actual agreement to possess and distribute.® De-

fendants’ contentions are without merit.

5 Errante also argues that if there was a conspiracy he withdrew

from it and that his withdrawal should, as recommended by the

Model Penal Code, be a defenve to count 1. We reject this argument.

We have never viewed withdrawal from a conspiracy as a defense to

a conspiracy count directed at the period prior to withdrawal, and we

decline to do so here. Moreover, even Model Penal Code § 5.03(6)

(Proposed Official Draft, July 30, 1962) would allow a withdrawal

defense only if the defendant ‘thwarted the success of the conspiracy,

under circumstances manifesting a complete and voluntary renun-

ciation of his criminal purpose.” The record here reveals that the

transaction fell through on February 11 not because of any renun-

(Footnote continued on following page.)

17a

Appendix A - Opinion of United States Court of Appeals

Viewing the evidence, as we must, in the light

most favorable to the government, Glasser v. United

States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680

(1942), we find that evidence an adequate basis for a rea-

sonable juror to conclude that, despite expressions by

LoRusso of mistrust of Errante, there was an agreement

between LoRusso and Errante. The evidence showed,

among other things, that LoRusso initiated with Mim-

mo the notion tiat LoRusso’s friend wanted to make a

million-dollar purchase of heroin; that LoRusso and

Errante then traveled together to Rome, where LoRusso

introduced Errante to Mimmo and Costanzo and

vouched for Errante in the face of Costanzo’s reference

to Errante’s wearing policeman-style shoes; that Lo-

Russo actively participated in the discussions of the

terms of the proposed sale of heroin; that LoRusso

reported to Mimmo that Errante’s people had approved

the deal. These events, which the evidence indicates

preceded LoRusso’s expressions of mistrust, were suffi-

cient to show an agreement between Errante and

LoRusso.

Moreover, the jury was hardly compelled

to view LoRusso’s expressions of mistrust as an indica-

tion that LoRusso abandoned his agreement with

Errante. There was no hiatus in LoRusso’s participa-

tion. He continued to accompany Errante to meetings

while voicing mistrust. And after telling Mimmo that

his suspicions of Errante had been allayed®’—two days

(Footnote continued from preceding page.)

ciation by Errante of his criminal purpose, but because he wanted

possession of the heroin before paying the purchase price. And

LoRusso’s statement to Mimmo on February 26 that Errante did not

“want to do anything anymore” and had had LoRusso tear up

Errante’s telephone number, did not suggest that Errante ever

renounced the plans of “his people” (see note 8 infra) to purchase

and distribute heroin.

® LoRusso points out that as to a number of his statements,

such as this one and those in the initial telephone conversation

with Mimmo, the only evidence was the testimony of Mimmo, and he

(Footnote continued on following page.).

18a

Appendix A - Opinion of United States Court of Appeals

after they had first been voiced—LoRusso participated

in the meeting at which the sample heroin was delivered

to Errante; he checked with Errante, in accordance with

Errante’s instructions, and reported to Mimmo that the

test results were satisfactory and that the transaction

could therefore be consummated; he attended the final

meeting between Errante and Costanzo, which was

scheduled to culminate in the delivery of a kilo of

heroin; and he asked Mimmo that evening if the deal

could not be revived.

(Footnote continued from preceding page.)

claims that the trial judge abused his discretion by declining to

charge the jury that the testimony of Mimmo, as an informer, “must

be examined and weighed by the jury with greater care than the testi-

mony of other witnesses.”” We disagree. Although we have frequent-

ly encouraged the trial courts to instruct juries to scrutinize an

informer’s testimony with great care, see, e.g., United States v.

Swiderski, 539 F.2d 854, 860 (2d Cir. 1976)reversing on other

grounds), the charge is not required “unless substantial prejudice

results from its omission.” United States v. Abrams, 427 F.2d 86,

90-91 (2d Cir.), cert. denied, 400 U.S. 832, 91 S.Ct. 64, 27 L.Ed.2d 63

(1970). In Swiderski, for example, in which a defense of entrapment

was asserted, the paid informer, who operated on a contingent fee

basis and who was apprehensive that he himself might be prose-

cuted, testified that the defendant had initiated the transaction.

This testimony was uncorroborated, and special instruction was

warranted. 539 F.2d at 860. Prejudice is not likely to occur, however,

where the informer has no especial self-interest to protect and his

testimony is largely or wholly corroborated. In the present case,

Mimmo’s testimony was corroborated by that of Agent Costanzo on

a number of key points, notably LoRusso’s bringing Errante to

Rome, where he vouched for Errante, and LoRusso’s participation in

the receipt of the heroin sample. In addition, many of Mimmo’s

elephone conversations with LoRusso, as well as the last meeting

yetween the two at which they discussed possible revival of the trans-

action, were recorded, and the recordings were admitted into evi-

jence. Although these conversations did not make explicit reference

© illegal acts, a rational jury could infer from their tenor that

Russo was an active and willing participant in a conspiracy.

‘inally, Mimmo himself was not under indictment or threatened

vith prosecution, and his position with the DEA was “little more

han [that of] a salaried employee.” (Errante brief on appeal at

$n.*.) Thus there was little reason to believe that Mimmo was so

nterested in the outcome of the prosecution that the court was

‘equired to give the special instruction.

19a

Appendix A - Opinion of United States Court of Appeals

Thus, notwithstanding the facts that Lo-

Russo raised questions and argued with Errante about

whether Errante might be a policeman, the evidence

was ample for the jury to find a conspiracy’ between Lo-

Russo and Errante.®

We likewise reject defendants’ contention that the

evidence was insufficient to support a finding of con-

spiracy because “no agreement was ever reached by

LoRusso and Errante with each other or with Agent

Costanzo as to the place and time of delivery of contra-

band, the amount to be delivered, or the price to be paid

..{T]here was never an agreement as to a definite plan

7 LoRusso also asserts that the trial court’s instructions to the

jury on the subject of conspiracy permitted the jury to convict him if

it found that he had merely attended meetings whose illegal purpose

he knew but in whose purpose he had not joined. There is one sen-

tence of the charge which could be so construed if read in isolation

and if read as stating the only circumstances in which a defendant

who has attended meetings is innocent of conspiracy. We note,

however, that the court charged that in order to convict a defendant

of conspiracy the jury “must find that he participated in some way in

the furtherance of the scheme and that he knew specifically that it

was for the distribution of heroin and intended that this activity

of distributing heroin be carried out.” (Tr. 909; emphasis added.) The

court’s conspiracy charge evoked no objection from LoRusso’s coun-

sel, and, viewing the charge as a whole, Cupp v. Naughten, 414 U.S.

141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973), we find no error.

® Moreover, the indictment charged the defendants with

conspiring not just with each other, but also with others whose iden-

tities were unknown to the grand jury. Despite the lack of identifica-

tion, there was ample evidence that Errante conspired with others.

For example, Errante repeatedly referred to “his people,” who

apparently had to be consulted at every turn. And the delivery

arrangements called for one of Errante’s associates to test the heroin

and another to protect the money. The fact that Errante’s associates

were not identified is no impediment to his conviction of conspiring

with them. See Rogers v. United States, 340 U.S. 367, 375, 71 S.Ct.

438, 443, 95 L.Ed. 344 (1951). Since Errante’s own statements are by

definition not hearsay, Fed.R.Evid. 801(d)(2XA), those statements

were proof of Errante’s agreements with others. See United States v.

Artuso, 618 F.2d 192, 197 (2d Cir.), cert. denied, 449 U.S. 861, 101

S.Ct. 164, 66 L.Ed.2d 77 (1980).

20a

Appendix A - Opinion of United States Court of Appeals

.{ TJhe only inference which can be drawn is that at the

start of negotiations there was a general understanding

in principle to distribute heroin.” (Errante brief on

appeal at 16-17.) The evidence, when viewed in the light

most favorable to the government, was adequate for a

reasonable juror to conclude that the agreement between

Errante and LoRusso was for the actual commission of

illicit acts—i.e., possession and distribution of heroin—

rather than just the exploration of general principles.

Whiie at the start of negotiations there were many de-

tails of the transaction to be thrashed out, the evidence

was sufficient to support the conclusion that a concrete

agreement was reached. Thus, on February 8, Errante

and Costanzo agreed on the price of $120,000 per kilo-

gram; and on that date a method of exchanging the

money and the heroin was agreed on, subject to satis-

factory testing and agreement on quantity. On Febru-

ary 9, Errante and Costanzo agreed on the quantity of

one kilogram. On February 10, sample heroin was de-

livered, tested, and approved; and LoRusso advised

Mimmo that delivery could take place the next day. The

fact that on February 11 Errante changed one of the

conditions previously agreed to by insisting on delivery

of the heroin in advance of payment does not undermine

the evidence that agreement had been reached pursuant

to which one kilogram of heroin was to be delivered on

February 11 for a price of $120,000 with stipulated safe-

guards to ensure that the buyers received what they

were paying for and that the sellers received $120,000 in

real money.®

® See United States v. DeRosa, 670 F.2d 889 (9th Cir. 1982). In

DeRosa, in which a similar transaction failed because of a last-

minute insistence by the defendant sellers of heroin that the pur-

chase money be advanced prior to delivery of the heroin, the court

found the evidence sufficient to support a finding that an agreement

had previously been reached:

The heroin deal was not ultimately consummated because

there was a “change” in the plans when the New York con-

(Footnote continued on following page.)

2la

Appendix A - Opinion of United States Court of Appeals

From this evidence the jury could have found be-

yond a reasonable doubt that Errante and LoRusso had

agreed to possess and distribute heroin, not merely to

consider such acts “in principle.”

The judgments of conviction are affirmed.

(Footnote continued from preceding page.)

nection wanted [the undercover DEA agent] to advance the

purchase money before delivery of the heroin. [The agent]

objected to this condition and the agreed heroin sale was never

completed. Thus, the jury could have reasonably concluded

that [the alleged coconspirators}] had reached an agreement

to sell heroin and were frustrated in their efforts only by a

change in the terms of the agreement made by the New York

source.

Id. at 895.

22a

Appendix B

Order of Judgment of The Second Circuit

Court of Appeals Affirming the Judgment

of Conviction and Sentence

UNITED STATES COURT OF APPEALS

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 second day

of December one thousand nine hundred and eighty-two.

Filed: December 2, 1982

Nos. 82-1082, 82-1096

Present:

Hon. Amalya L. Kearse

Hon. Richard J. Cardamone

Hon. Ralph K. Winter

Circuit Judges,

UNITED STATES OF AMERICA,

Appellee,

Vv.

VITO LORUSSO and JOSEPH ERRANTE,

Defendants-Appellants.

Appeal from the United States District Court for

the Southern District of New York.

This cause came on to be heard cn the transcript of

record from the United States District Court for the

Southern District of New York, and was argued by coun-

sel.

ON CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged, and decreed that the judg-

23a

Appendix B

Order of Judgment of The Second Circuit

Court of Appeals Affirming the Judgment

of Conviction and Sentence

ments of said District Court be and they hereby are

affirmed in accordance with the opinion of this court.

A Daniel Fusaro, Clerk

byEdward J. Guardaro,

Deputy Clerk

24a

Appendix C

Order Denying Petition for Rehearing

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States Court of

Appeals, in and for the Second Circuit, held at the

United States Court House, in the City of New York,

on the eleventh day of January, one thousand nine

hundred and eighty-three.

Filed: January 11, 1983

Nos. 82-1082, 82-1096

UNITED STATES OF AMERICA,

Appellee,

Vv.

VITO LORUSSO and JOSEPH ERRANTE,

Defendants-Appellants.

A petition for rehearing containing a suggestion

that the action be reheard in banc having been filed

herein by counsel for the defendants-appellants, Vito

LoRusso and Joseph Errante,

Upon consideration by the panel that heard the

appeal, it is

Ordered that said petition for rehearing is DENIED.

It is further noted that the suggestion for rehearing

in banc has been transmitted to the judges of the court

25a

Appendix C

Order Denying Petition for Rehearing

in regular active service and to any other judge on the

panel that heard the appeal and that no such judge has

requested that a vote be taken thereon.

A. Daniel Fusaro, Clerk

byFrancis X. Gindhart,

Chief Deputy Clerk