Opposition — Guippone v. United States

No. 83-166

as.

In the Supreme Court of the United States

OCTOBER TERM, 1983

ROBERT ANGELO GUIPPONE AND

ANTHONY MICHAEL PORCELLI, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

REx E. Lee

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

OO EE

QUESTION PRESENTED

Whether the government improperly denied peti-

tioners access to the original recordings of certain

intercepted conversations that were admitted into evi-

dence at their trial.

(1)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

United States v. Biggins, 551 F.2d 64 o.oo. 9

United States v. DiMuro, 540 F.2d 508 .......00000.... i)

United States v. Fuentes, 563 F.2d 527, cert. de-

a ccanbbuwencenovece 8, 9

United States v. Haldeman, 559 F.2d 31, cert. de-

a ssasaceubooobiueusiina 10

United States v. Knohl, 379 F.2d 427, cert. denied,

i evibacmmssunentons 9

United States v. Starks, 515 F.2d 112 .....0 9

Wisniewski v. United States, 353 U.S. 901 ............ 9

Statutes and rule:

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(mm)

Iu the Supreme Court of the United States

OCTOBER TERM, 1983

No. 83-166

ROBERT ANGELO GUIPPONE AND

ANTHONY MICHAEL PORCELLI, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 2a-

52a) is reported at 702 F.2d 299.

JURISDICTION

The judgment of the court of appeals was entered

on February 22, 1983 (Pet. App. la). A petition for

rehearing was denied on May 2, 1983 (Pet. App.

53a). Justice Marshal] extended the time within

which to file a petition for a writ of certiorari to and

including July 31, 1983 (Pet. App. 55a), and the

petition was filed on Monday, August 1, 1983.

(1)

2

STATEMENT

After a jury trial in the United States District

Court for the Southern District of New York, each

petitioner was convicted of conspiring to possess and

distribute heroin and cocaine, in violation of 21 U.S.C.

846, and possessing cocaine with intent to distribute

it, in violation of 21 U.S.C. 841(a)(1). Petitioner

Porcelli was also convicted of possession with intent

to distribute heroin, in violation of 21 U.S.C. 841

(a)(1). Petitioners were each sentenced to 30 years’

imprisonment and lifetime special parole. In addi-

tion, petitioner Porcelli was fined $150,000 and peti-

tioner Guippone was fined $100,000. The court of

appeals affirmed. Pet. App. 2a-52a.

1. The evidence at trial is summarized in the

opinion of the court of appeals (Pet. App. 17a-24a,

37a-39a).’ It showed that from October 1980 to May

1981 co-defendant Willard Williams managed a con-

tinuing narcotics business from his duplex apartment

in New York City (id. at 17a). Williams received

and possessed wholesale quantities of heroin and co-

caine, resold these drugs to distributors, and paid

back petitioners and other suppliers, laundering and

banking the profits (ibid.).

On October 31, 1980, a week after an undercover

DEA agent first purchased narcotics originating

from Williams’ apartment, petitioners, who were pre-

viously convicted narcotics violators, were observed

departing from the apartment with a large paper bag

(Pet. App. 19a). On numerous occasions thereafter,

petitioners visited Williams’ apartment and left with

packages (id. at 20a). Their frequent discussions

1It is explained in more detail in the government’s brief

in the court of appeals, a copy of which we are lodging with

the Clerk of this Court.

8

with Williams were lawfully intercepted by the gov-

ernment through listening devices installed in Wil-

liams’ apartment.’ These discussions concerned pur-

chases of heroin and cocaine, amounts of money paid

and owed, and problems in obtaining payment from

co-defendant Saint Julian Harrison, one of Williams’

distributors. Jbid."

On March 6, 1981, petitioners received $30,000

from Williams and arranged to supply him with

three-quarters of a kilogram of cocaine (Pet. App.

2 The electronic surveillance was monitored by two agents,

who listened to the conversations as they were recorded simul-

taneously on two machines (Tr. 824-828; 11/11/81 H. Tr.

1023). The agents were instructed to minimize the intercep-

tion and the recording of non-pertinent conversations (Tr.

806-808, 831-834). At the end of each 8-hour shift an agent

would place one of each set of duplicate tapes in a heat-sealed

envelope. The envelopes were packed in cardboard boxes

and delivered to the DEA evidence vault, and then to the

district court supervising the surveillance for sealing. Tr. 810-

816, 823. There were “perhaps 200” of these “[c]ourt orig-

inals”; the other set of duplicate tapes—‘‘work copies”—were

taken to the United States Attorney’s office for review and

study (Tr. 819, 824-825, 870). The court originals were

eventually unsealed in order to duplicate them, and to prepare

more audible copies (Tr. 885-887; cf. 11/11/81 H. Tr. 1023-

1024). They were then resealed unti] unsealed for use at trial

(Tr. 885). During this period they were kept at the United

States Attorney’s office (Tr. 885).

® The discussions are summarized in the government’s court

of appeals brief (at 19-29). We are lodging with the Clerk

of this Court copies of the transcripts of the discussions in

which petitioners participated that were played to the jury.

These conversations include Williams’ inquiry about the avail-

ability of “coke” and petitioners’ assurances that they would

deliver it in half or 34 “ki” [kilogram] lots. Porcelli described

it as ‘Peruvian Flake”, which “come out like feathers” (App.,

infra, 9a).

4

20a; App., infra, 10a). On March 16, 1981, peti-

tioner Porcelli received $30,000 from Williams and

agreed to hold an eighth of a kilogram of heroin for

him (Pet. App. 20a). Petitioners suspended deliver-

ies when they discovered that their car was being

watched after a visit to Williams; subsequently, on

April 29, 1981, Porcelli and Williams discussed

methods of continuing their narcotics business on a

more secure basis to avoid government surveillance

(id. at 21a). When Porcelli was arrested on May

21, 1981, he instructed his daughter to tell his son-

in-law to “get rid of” the narcotics he kept at his son-

in-law’s house (ibid.). When Guippone was arrested

he had 300 rounds of ammunition in his car (ibid.).

2. Petitioners were supplied with copies of all the

relevant tapes,‘ and beginning in July 1981 all the

physical evidence in the case, which the court of ap-

peals found included the “original” recordings, was

available for inspection by defense counsel at the

United States Attorney’s office or at DEA headquar-

ters (App., infra, la-4a).° Although counsel for co-

defendant Onzel Markum audited the tapes in the

*The Assistant United States Attorney informs us that

petitioners received copies of both the court originals and the

identical work copies (see note 2, supra).

5 The letter reproduced at App., infra, la-4a was sent to the

district court in response to petitioners’ February 2, 1982,

motion for continuance. The record on appeal, which included

the entire record in the district court, did not contain the

letter because the trial judge evidently neglected to file it.

However, the government expressly represented in its appel-

late brief (Br. 65) that “the original tapes were made avail-

able for defense counsel to listen to at the United States

Attorney’s Office,” and the court of appeals credited this

representation (Pet. App. 32a).

5

United States Attorney’s Office, neither counsel for

petitioners nor any expert retained by them did so

(App., infra, 2a).° Instead, in November 1981, pe-

titioners moved for an order requiring the govern-

ment “to make [eight specified] tapes available for

independent analysis” (A.A. 387, 11/16/81 H. Tr.

1065-1069).’ They submitted a supporting affidavit

from an electronics expert indicating that he had

“listened to and preliminarily examined [two speci-

fied] tape recordings” and found “significant aberra-

tions, which seriously call into question the authentic-

ity of these recordings * * * and warrant further

examination and analysis” (A.A. 392-393).

The district court found this allegation insufficient

and denied the motion, but it suggested that it would

reconsider its ruling if it received an affidavit from

defendants “setting forth with specificity the altera-

tions claimed to have been made” (A.A. 388, 392).

In response, petitioners filed further affidavits from

the electronics expert, stating that the “aberrations

* * * include certain interruptions in the conversa-

tions [and] * * * variations in signal to noise ratio”

* The tapes remained available during the fall; indeed, trial

counsel for petitioner Guippone indicated that he intended to

listen to them beginning on September 2, 1981. (App., infra,

6a). He apparently did not do so. Instead, he arranged to

hear them on January 6, 1982, but he chose not to do so be-

cause no table was available for his use when he arrived that

day (App., infra, 2a). No claim was made at that time that

special laboratory facilities were necessary for an adequate

audit of the tapes.

7“A.A.” refers to the Appellate Appendix prepared by de-

fendants and cited in the petition. We are lodging a copy of

this Appendix and the relevant transcript volumes with the

Clerk of this Court.

6

(A.A. 394, 396)* and suggesting that “the [requested]

examination may be made by a government desig-

nated expert in my presence” (A.A. 395, 397). Peti-

tioners also submitted their own affidavit, stating that

the recordings “do not include conversations, or parts

thereof which we particularly recall having with Wil-

liams during the [relevant] period * * * regarding

{gambling]” (A.A. 399). The government responded

by noting (11 16/81 H. Tr. 1067-1068; 2/5/82 H.

Tr. 10) that the original tapes had been made avail-

able to petitioners and that the government recog-

nized its responsibility to prove their authenticity at

trial.

The court refused to order the government to sub-

mit the original tapes for examination by the de-

fendant’s expert before trial, pointing out that the

identified “aberrations” were probably the result of

the agents’ minimization of the recording of irrele-

vant conversations (2/5/82 H. Tr. 8), and that peti-

tioners’ claim that gambling related conversations had

been omitted did not suggest that the narcotics con-

versations had been doctored (2/5/82 H. Tr. 5, 9).

The court emphasized (2/5 82 H. Tr. 11) that de-

fendants would have the opportunity to test the au-

thenticity of the recordings at trial (ibid.).’

At trial, defendants refused to “stipulate to any-

thing regarding authenticity” of the tapes, and the

government accordingly undertook the burden of

*The expert’s supplemental affidavits also stated that he

had detected similar “aberrations” in the six other requested

tapes (A.A. 396).

* Before trial, the court and trial counsel, with a defense

investigator, did spend several days reviewing a number of

original tapes to determine whether unauthorized intercep-

tions had occurred (11/10/81-11/11/81 H. Tr. 883-1022).

7

establishing the authenticity of the tapes by clear and

convincing evidence (Tr. 661). At the conclusion of

testimony establishing the chain of custody from the

time the tapes were originally recorded,” the court

concluded that there was no “realistic chance” that the

tapes had been altered at the listening post* and

that thereafter the chain of custody was clear (Tr.

911-912). It accordingly admitted the tapes (Tr.

912), but specifically assured defense counsel that if

there were anything suspicious about the tapes as

they were played,"* they would be permitted to ex-

1° The court overruled a co-defendant’s objection to the re-

fusal to call each monitoring agent so that he could be cross-

examined about his compliance with established sealing pro-

cedures (Tr. 909).

1 Specifically, the court explained (Tr. 911):

Now, I don’t see in anything we have heard here that

there was any realistic chance of this being done by any-

body at this operating post. It takes expertise, it takes

the fact that an agent in listening to this is going to be

saying to himself: Joe, we have got a nice conversation

here but if I can slice this thing up and put it together

a different way it will make a lot better case for the

government.

And he’s got to have a chance to do it and get away

with it. He’s got to know how to do it, he’s got to know

how to splice, he’s got to have the equipment to do the

splicing, or he’s got to be awfully accurate with those

scissors when he makes those snippets and puts it back

together.

There is just no showing whatsoever that this agent

knew what was wanted or had any opportunity to, motiva-

tion or anything else, to have doctored these tapes at the

operating post.

12 Since the original tapes were hard to understand, en-

hanced and redacted versions were played for the jury (Tr.

850-852, 907).

8

amine them (Tr. 913-914; cf. Tr. 851-854).% Al-

though defendants presented to the jury their argu-

ment that the recorded conversations related to gam-

bling (Tr. 3385-3397), there was nothing suggesting

that any alteration had been made in the tapes (A.A.

959-960). The district court made a post-trial find-

ing that the tapes had not been altered (Tr. 3457-

3458).

ARGUMENT

Petitioners do not dispute that the government, at

its own expense, provided them with copies of all re-

quested tape recordings of their conversations inter-

cepted in Williams’ apartment (10/22/81 H. Tr. 29-

32; 11/11/18 H. Tr. 954-955; 2/5/82 H. Tr. 6-12).

They argue instead that the government improperly

denied them access to the original tapes of those con-

versations, which they sought in order to verify their

authenticity.”

‘8 The court later explained (A.A. 959-960) that “I assumed

you had your expert here listening to say he heard a bloop,

bloop or bleep, bleep that entitled him to conclude as an ex-

pert that there had been an alteration.”” Petitioner’s counsel

responded only that the expert “ha[d] to listen and be present

when certified copies are made from the originals.”” No expla-

nation has ever been offered as to why that was necessary.

1 Petitioners’ suggestion at trial was evidently that dele-

tions were made in the tapes before they were sealed (Tr.

841, 856-858, 862-864, 909-912), and that these deletions made

what were in fact gambling-related conversations appear

to be drug-related (Pet. 7; Tr. 3457-3458; cf. Tr. 3386-3404).

In United States v. Fuentes, 563 F.2d 527, 5382 (2d Cir.), cert.

denied, 434 U.S. 959 (1977), the court found it “hard to believe

that [an informant] could have effectively changed the char-

acter of a running conversation, by turning the device on and

off, without such attempts being immediately obvious * * * to

anyone listening to the tapes.” The district court here reached

the same conclusion (note 11, supra).

9

1. Petitioners contend that they had an absolute

right of “access” to the original tapes, and that there

is a conflict among the circuits on this issue. Neither

argument has merit. In support of their claims, peti-

tioners rely either on cases dealing with other types

of physical evidence, or on cases that hold that the

district court has broad discretion to determine

whether tapes have been sufficiently authenticated to

be admissible (see, e.g., United States v. Biggins,

551 F.2d 64, 66 (5th Cir. 1977) (noting that “[a]

defendant will often hear the tape recording for the

first time in court”); United States v. DiMuro, 540

F.2d 503, 512 (1st Cir. 1976); United States v.

Knohl, 379 F.2d 427, 441-442 (2d Cir.), cert. denied,

389 U.S. 973 (1967) ).** Where, as here, petitioners

have undisputedly been provided with copies of all

the relevant tapes, have presented only vague allega-

tions of omissions from clearly incriminating con-

versations, and have made no remotely credible sug-

gestion of how any alteration might have occurred,

1S Although petitioners contend (Pet. 16) that United States

v. Starks, 515 F.2d 112 (3d Cir. 1975) is “[i]n marked con-

trast” to the approach of the other circuits, that case is simply

one in which the court of appeals found that the district court

had abused its discretion in admitting largely inaudible copies

of recordings made on a body mike where the chain of custody

was inadequate. To the extent that petitioners rely on an

intra-circuit conflict with United States v. Fuentes, 563 F.2d

527 (2d Cir.), cert. denied, 434 U.S. 959 (1977), that conflict

is for the Second Circuit to resolve. Wisniewski v. United

States, 353 U.S. 901, 902 (1957). In any event, the court in

Fuentes simply suggested in passing that the defendant “could

have called an expert to examine the tapes for evidence of

tampering” in rejecting as incredible a claim of alteration

(563 F.2d at 532). There is no suggestion in Fuentes that

defense access to copies of the tapes would generally be

insufficient.

10

the district court surely did not abuse its discretion

in refusing to accede to petitioners’ eleventh-hour de-

mand that their expert be permitted to examine the

original tapes. Cf. United States v. Haldeman, 559

F.2d 31, 107-108 (D.C. Cir. 1976), cert. denied, 431

U.S. 933 (1977) (“the possibilities of misidentifica-

tion and adulteration [of tape recordings must] be

eliminated, not absolutely, but as a matter of reason-

able probability [citing cases]”; tapes admitted be-

cause risk of tampering was “slight’’).”*

2. Assuming arguendo that the government was

required to give the defendants access to the original

tapes, there was in fact no denial of reasonable access

here.” The original tapes were available for review

1® Petitioners rely (Pet. 16) on Fed. R. Crim. P. 16(a) (1)

which requires the government to permit the defendant to

“inspect and copy or photograph” all statements of defendants

and physical evidence in the custody of the government that

is material to the defense or that the government intends to

introduce at trial. Here, of course, the defendants were given

copies of the evidence and, as we note below, were permitted

to inspect it.

17 The record on this purely factual issue is not as clear as

it might be, in large part because this issue was only one of a

number urged by defendants. (We note that the government’s

brief in the court of appeals discusses 24 separate issues.)

Accordingly, neither the court nor the parties explored the

issue thoroughly. For example, it appears that the govern-

ment believed petitioners were seeking custody of the original

tapes (App., infra, 3a). Although petitioners now contend

(Pet. 20) that they never sought such custody, their conten-

tions below were less clear (see, e.g., A.A. 395). The court of

appeals concluded (Pet. App. 32a-38a) that they had sought

custody. In addition, petitioners have never explained what

sort of “independent analysis” they wished to make, nor

shown that the facilities in the United States Attorney’s office,

where the tapes were being held, were inadequate for that

analysis. See, e.g., A.A. 392-397 (affidavits of petitioner’s

expert).

11

in the United States Attorney’s office before trial.

Petitioners’ counsel did not choose to review them

there (presumably because they had adequate copies),

nor did they seek to have their expert review them

there or indicate in any way that the facilities there

were inadequate. Instead, they moved to have the

tapes “available for independent analysis” (A.A.

387), relying on conclusory allegations of “aberra-

tions” (A.A. 392-397)** and claims by petitioners of

omissions from the conversations as they recollected

them (A.A. 399).* Although the district judge did

permit, and himself participate in, extensive reviews

of the original tapes for other purposes (see note 9,

supra), he found that these allegations were insufh-

cient to require that the prosecution make special

arrangements for laboratory analysis of the original

tapes by defense experts. After the prosecution estab-

lished the authenticity of the tapes as they were of-

fered into evidence, the trial court again invited the

defense to demonstrate a genuine need to examine them

by producing some indication of tampering. No such

indication has ever been produced. On balance, we

submit that the record here suggests that petitioners’

1® These “aberrations” consisted of “certain interruptions

in the conversations” and “‘variations in signal to noise ratio”’

(A.A. 394, 396), which could be expected if the expert was

listening to the enhanced versions of the tapes provided to

petitioners and introduced at trial (Gov’t C.A. Br. 66).

18 The district court suggested that the omissions could have

resulted from minimization (2/5/82 H. Tr. 8). They could

also have been due to the failure of the agents to turn on the

intercepting equipment as soon as a petitioner entered the

apartment, if the agents watching from across the street mis-

calculated the time used to travel from the entrance hall to

the apartment (see 11/11/81 H. Tr. 969-972).

12

complaint at trial was not that they had been denied

any access to the original tapes, but rather that they

had not been given such access on their own terms

and conditions, even though they never explained why

those conditions were important.*’ This purely factual

issue is not one this Court need resolve.

Finally, even if, contrary te the district court’s

conclusion that there had been no alterations or omis-

sions from the tapes, gambling-related conversations

were omitted from the tapes, that omission would not

affect the conclusion that the conversations that were

recorded related to narcotics. For example, in the

conversation between petitioners and Williams on

March 6, 1981 (which we have reproduced at App.

infra, 8a-1la), Williams asked Porcelli for “the rock”’,

and Porcelli replied that, while he didn’t have it now,

‘“‘a guy has some coke. * * * He promised me, I’ll give

it to you. * * * he scored for me the other night.” The

“guy” had given away “a ki” of “Peruvian Flake”

that “come out like feathers” for what it cost him.

Porcelli continued, “I told him, get me some, tell

Sonny [Guippone] when he comes out what I said.

* * * [Later] I went to see this guy. He says he was

gonna give us a half but it’ll take a couple more * * *

package[s].’”’ When Williams urged “I need it now,”

Porcelli replied “I ain’t got it now. Tonight I’ll bring

it, Seven thirty.” Williams then paid him ‘20 thou”

and asked how much he still owed. Porcelli replied “I

figure about least, 15 hundred.” Guippone then in-

quired “What you want?” and Williams responded

20 We would not, in principle, object “» permitting a de-

fendant’s expert to examine original tape recordings in the

custody of the government, where appropriate arrangements

are made to safeguard the integrity of the tapes and the ex-

amination is requested in timely fashion.

13

“You better send me a half. * * * you can send three

quarters or send half.” Porcelli and Guippone agreed.

After hearing this and similar evidence, including

references in the recorded conversations of other co-

conspirators to petitioners’ part in the operation, the

jury understandably rejected petitioners’ claim (Tr.

9385-3387) that their recorded conversations related

to gambling, not drugs. It is hard to imagine how any

omitted portions of this conversation could possibly

have transformed it from one about drugs into one

exclusively about gambling.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

Rex E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

NOVEMBER 1983

la

APPENDIX A

RAM :gep

February 4, 1982

Honorable Richard Owen

United States District Judge

United States Courthouse

Southern District of New York

Foley Square

New York, New York 10007

Re: United States v. Willard Williams et al.,

S 81 Cr. 398 (RO)

Dear Judge Owen:

I am writing in response to the defendants’ motion,

set forth in the letter of Paul Victor, Esq. dated

February 2, 1982, for a continuance of the trial date.

We vigorously oppose this application, which is based

on a completely distorted recitation of the respective

discovery efforts made by the parties.

First, as we advised the Court at the July 9, 1981

pretrial conference, the Government provided to all

defense counsel copies of all the papers underlying

the wiretaps as well as a listing of all the physical

evidence purchased or seized during the course of the

investigation, including arrests and searches. (Tr.

pp. 3-7, enclosed.) From that date forward, all the

physical evidence was available for inspection at our

offices, or at DEA headsuarters. Precisely because we

wanted to avoid time-consuming, piecemeal produc-

tion of discovery materials, and belated claims such

as those of Mr. Victor, we urged defense counsel] in

July 1981 to see the physical evidence. In fact, as the

enclosed letter of July 31, 1981 reflects, we set aside

2a

one week for this specific purpose. During that period,

a number of defense counsel, including Mr. Bugan,

Mr. Herbst and others, examined the evidence. Wr.

Victor and Mr. Goldberg chose not to do so.

During the fall, the physical evidence remained

available, and many other counsel arranged to review

ijt without any difficulty. As the date for trial drew

nearer, however, we became concerned that defense

counsel would wait until the last possible moment

before trial to examine the evidence, thereby inter-

fering with our pretrial preparation and the trials of

defendants Terry, Bedoya and McMillan, which were

scheduled for that same time. In fact, I expressed

this concern at the December 11, 1981 pretrial con-

ference [Tr. p. 1068, enclosed], and wrote to defense

counsel to arrange a final daie (December 23, 1981)

when this material would be available for their re-

view. That date, however, was not convenient for Mr.

Victor, and, at his request, was changed to January 6,

1982.

On that date, Mr. Victor and Mr. Goldberg arrived

to look at the evidence, but, because we had no table

for them to use, refused to examine it that day. It

should be noted that on that same day, other counsel

examined the material and expressed no objection

whatever with the Government’s facilities. Al] coun-

sel were aware of the trial date and of the Govern-

ment’s need for a discovery cut-off so that it could

reasonably prepare for trial. Nevertheless, Mr. Victor

decided to wait a month, until just one week before

trial, to see evidence which had been available for

the preceding seven months. In sum, the Government

has sought continuously to have defense counsel com-

plete their discovery; their persistent failure to do so

cannot rationally be blamed on the Government.

3a

Likewise, as we also advised the Court (June 22,

1981, Tr. enclosed), the Government made a complete

set of tapes, identical to the ones used by the Govern-

ment, for defense counsel to borrow. These tapes have

been available since July, 1981. However, several de-

fense counsel, including Mr. Victor, insisted on being

provided with the Government’s original tapes, which

we declined to provide. Instead, we arranged to have

any original tape which they requested copied for

them by Paul Ginsburg, an audio expert frequently

used by the Government. By this means, Mr. Victor

and other counsel obtained copies of any tapes they

wanted. The tapes referred to in his letter, however,

are those supplied to defendants themselves. In that

regard, we have provided to Ed Flores, defendants’ in-

vestigator, sets of 20 tapes at a time for several

months, providing him an additional set of 20 when

the last ones were returned. Finally, I have, as Mr.

Flores will state, returned every one of his calls, and

provided him tapes he requested.

With respect to the transcripts, they are being pro-

vided as completed. However, apart from Gerald

Shargel, Esq., no defendant has complied with the

agreement, reached on July 9, 1981, that the defend-

ants provide transcripts of any conversations they

intend to use or reply on, although they agreed to

do so by September 15, 1981. (Tr. pp. 47-48 enclosed)

Likewise, only Mr. Shargel responded to the Govern-

ment’s demand for reciprocal discovery.

The second reason proferred for delay of the trial

is similarly flawed. In effect, Mr. Victor seeks re-

argument of motions already denied, or claims denia!

of access to materials that have been available to

him. Thus, his request to examine the original tapes,

recording equipment and video tapes outside the Gov-

4a

ernment’s control has been denied by the Court, yet

these materials have been available at our office. In

fact, Mr. Bogan reviewed all the video tapes in our

offices in the fall, and the Government provided de-

fendants with a composite tape of all the video taped

evidence it will offer at trial.

In conclusion, we feel that the application misstates

the facts concerning discovery in this case. There is

a great gulf between refusing to produce discovery,

as claimed, and neglecting to review it, as happened.

This last minute effort to find some basis for delay

and disruption should be denied.

Respectfully,

JOHN S. MARTIN, JR.

United States Attorney

By:

RICHARD A, MARTIN

Assistant United States Attorney

Telephone: (212) 791-0068

ec: Paul Victor, Esq.

5a

APPENDIX B

DUBLIRER, HAYDON, STRACI & VICTOR

67 Wall Street

New York, New York 10005

(212) 943-0880

August 31, 1981

Richard A. Martin, Esq.

Assistant United States Attorney

One St. Andrew’s Plaza

New York, New York 10007

Re: United States v. Willard Williams,

et al and related cases

81 Cr. 426, 427, 428, 439, 431 and 432

Dear Mr. Martin:

I am writing this lettex,to acknowledge receipt of

your rough drafts of transcripts pertaining to both

the bug and telephone taps. In order to assure myself

that this is a complete list of transcripts, I have an-

nexed hereto an inventory of same. It would be ap-

preciated if you would review this inventory for com-

pleteness and accuracy.

If for any reason you intend to use transcripts

other than those identified on the inventory, please

forward same immediately.

I am also writing to confirm your statement to

Ms. Salten-Smith, of my office, relating to the tele-

phone conversation contained in Count 21 of the in-

dictment. It is my understanding, based upon your

representation, that the conversation contained in R

66 Cl is the one upon which Count 21 is based.

6a

It would be sincerely appreciated if you could con-

firm in writing that this is the conversation upon

which you based Count 21. In addition thereto, I

would also appreciate receiving a copy of the identical

conversation which should be contained in your tele-

phone taps. To date, I have been unable to identify

the specific conversation within the telephone tap

logs.

Pursuant to your agreement we would like to hear

the best and most audibie copies of all conversations

relating to Anthony Porcelli and Robert Guippone.

I would like to start at 10:00 A.M. Wednesday morn-

ing, September 2, 1981. If this is not a convenient

time for you, please let me know so that we can mu-

tually agree on another date.

In addition, it is our client’s request that he be per-

mitted to hear the best copies of all of the tape record-

ings, and that he be permitted to listen to said tapes

prior to any determination by him with regard to

making copies thereof. This is not an unreasonable

request since in the past we have found it inexpedient

to copy tapes which end up being completely inaudible.

Perhaps you and I could arrange to have 10 or 20

of your audible copies of tapes delivered to my client

at the MCC for reasonable and limited periods of

time.

We have been informed that the government con-

ducted a search of the Social Club, located on Bogart

Avenue, Bronx County, a location where Mr. Guip-

pone was observed. We are hereby requesting a copy

of the search warrant, the application therefor and

an inventory of any items seized.

On Thursday, August 27, 1981, Ms. Salten-Smith

went to your office and you gave her what was pur-

ported to be all of the still photographs taken as part

Ta

of the surveillance at 307 East 89th Street. However,

we have looked through the photographs of some of

the evidence you sent us in the mail and note that

there are copies of photographs designated as evi-

dence exhibit 000, dated February 4, 1981, which she

did not see at your office.

In view of this discrepancy please supply us with

an inventory and log of all physical evidence, includ-

ing photographs which are in your possession. This

procedure will obviate any claim of surprise at the

trial.

It is our further request that we be permitted to

makes copies of the following tapes from your sealed

originals, to wit: R 2, R 11, R 39, R 47, R 75, R 80,

R 96, R 97, R 149, R 166 and R199.

Since you stated that you will not oppose this ap-

plication, we have enclosed herewith a stipulation

which we can submit to the Court for its endorsement.

Lastly, please let me know as soon as possible when

the composite video tapes will be available for re-

view by Mr. Guippone and me, at the MCC.

Very truly yours,

/s/ Paul A. Victor

PAUL A. VICTOR

PAV eks

encl.

Sa

APPENDIX C

Excerpt from conversation of March 6, 1981

between Williams, Porcelli, and Guippone (“Sonny”)

WILLIAMS: I want the rock from you.

PORCELLI: I know, I know.

WILLIAMS: Ineedit now. I got...

PORCELLI: I got to go downtown tonight.

WILLIAMS: I got to go to the dentist.

PORCELLI: I got to go, I ain’t got it now.

WILLIAMS: I don’t believe you.

PORCELLI: Hey, listen to me. I’m cured.

WILLIAMS: Yeah, well, that.

PORCELLI: I didn’t take a blow in over two

months.

WILLIAMS: Please don’t bother to (IU) it.

PORCELLI: Huh, I don’t touch you. What’s the

matter with you, huh? He’s out there, a guy has

some coke.

WILLIAMS: Yeah

PORCELLI: He promised me, I'll give it to you.

I don’t want it. You know what I mean? Now he

scored for me the other night.

WILLIAMS: Yeah

PORCELLI: He gave it to, he gave it away to

that guy gave it away the whole thing.

WILLIAMS: Whataki?

PORCELLI: Yeah, he gave it for what cost him,

it cost him (UI).

WILLIAMS: How was it? Was it any good?

PORCELLI: Was it good? He told me what it

was.

WILLIAMS: I (ui).

PORCELLI: I, they never seen anything like it,

they did us a favor, for the guy’s bar.

9a

WILLIAMS: So, why don’t you get me some?

PORCELLI: I talked (UI)! Tell him what I told

the guy! Give me, I can’t give it (UI). You know

what was, Peruvian Flake.

WILLIAMS: Oh

PORCELLI: (UI) come out like feathers

WILLIAMS: Oh man, he done did it?

PORCELLI: I told him, get me some (UI), tell

Sonny when he comes out what I said. I give, I said

I’ll bring it to that guy”. I told him. When he comes

out. He I said it went like, this like feathers.

WILLIAMS: Yea, but Sonny didn’t dig it.

PORCELLI: We..., Sonny didn’t know it. This

was the other night. Wednesday night. I was away.

I came back Wednesday night. I went to see this

guy. He says he was gonna give us a half but it’ll

take a couple more package...

WILLIAMS: Yea, well brung me (UI).

PORCELLI: Hecut,no....

WILLIAMS: (UI) package.

PORCELLI: (UI) couple more packages.

WILLIAMS: Yea.

PORCELLI: He did it for a favor this guy. So he

did it for him. He won’t bother with that. So when

I when I seen this friend, I said, give me some, I gotta

bring, go see a friend of mine. I’ll bring it. What

was I telling, what happened?

GUIPPONE: Ya, what’s that?

WILLIAMS: (UI)

PORCELLI: That (UI) Peruvian flake. What

happened?

GUIPPONE: Why did you tell him? You got to

aggravate him now right?

WILLIAMS: Yeah that’s right.

GUIPPONE: You shouldn’t even tell him. You

should forget it

10a

WILLIAMS: (UI) guy (UI)

PORCELLI: (UI).

GUIPPONE: Yea

PORCELLI: (UI) hired that guy (UI).

WILLIAMS: I need it now. I got to go to the

dentist.

PORCELLI: I ain’t got it now. Tonight I’ll bring

it, seven thirty

WILLIAMS: Here's, here’s the money.

PORCELLI: Seven thirty I bring it.

WILLIAMS: Given you 20 thou.

(Sound of paper).

PORCELLI: Where’s your notebook by the way?

WILLIAMS: How much I owe ya

PORCELLI: I figure about least, 15 hundred.

WILLIAMS: 15 hundred?

PORCELLI: At least. I’ll be honest, I’d say fuck

the rest.

GUIPPONE: What you want?

WILLIAMS: You better send me a half. No, ah,

ah, lets see you better send me, uh, three. Dont

send one.

PORCELLI: Three quarters?

WILLIAMS: Yea, you can send three quarters or

send half, it’ll take a week or so.

PORCELLI: OK. (UI)

WILLIAMS: You know, the same as is this cause

I’m not going to rush.

PORCELLI: Alright, ok. ok.

PORECLLI: Uh, uh, if you want, I’ll make a

special trip for that. If you want, if you don’t, I’ll

give it tomorrow (UI).

GUIPPONE: Come on what we did yesterday

(UI) (UI). put everything over there.

lla

WILLIAMS: Well, he got to go get it anyway.

PORCELLI: Tomorrow. Tomorrow I'll get it.

GUIPPONE: It’s gonna take a little while, we'll

get it all at once.

PORCELLI: Alright? Don’t get desperate be rea-

sonable (laughter).

* * * * »

2 0. 8. SoTERMmENT PHrmTiNG OFrice, 1983 425595 142