Appendix — Casamento v. United States
Supreme Court brief1990
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JOSEF i4 F SPANIOL JR,
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No.:
-
i ae
IN THE
Supreme Court of the United States
October Term, 1989
FILIPPO CASAMENTO,
Petitioner,
-against-
UNITED STATES OF AMERICA,
Respondent.
APPENDICES TO
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
JOSEPH W. RYAN, JR.
Attorney for Petitioner
EAB Plaza
West Tower-14 Floor
Uniondale, New York 11556-0120
(516) 832-1000
ion
Table of Contents
Appendix A
Opinion of United States Court of Appeals .... la
Appendix B
Order of United States Court of Appeals
on Petition for Rehearing and Suggestion
for PIGUROMNI TR TERME wn. ccc ccc cvcccncsesns 118a
Appendix C
Memorandum and Order on Defendants’
Motions for Severance .............ccceceoess 120a
la
Appendix A
Opinion of United States Court of Appeals
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
as
Nos. Z01, 217—August Term, 1988
(Argued: January 26, 1989 Decided: October 11, 1989)
Docket Nos. 87-1294, 87-1295, 87-1296, 87-1297, 87-1298,
87-1299, 87-1303, 87-1357, 87-1358, 87-1359, 87-1360,
87-1361, 87-1362, 87-1363, 87-1364, 87-1365, 87-1366
>
UNITED STATES OF AMERICA,
Appellee,
—V.—
FILIPPO CASAMENTO, EMANUELE PALAZZOLO,
GIOVANNI CANGIALOSI, SALVATORE SALAMONE,
GIOVANNI LIGAMMARI, FRANK CASTRONOVO,
GAETANO BADALAMENTI, SALVATORE CATALANO,
GIUSEPPE LAMBERTI, SALVATORE MAZZURCO,
SALVATORE LAMBERTI, GIUSEPPE TRUPIANO,
GIUSEPPE VITALE, LORENZO DEVARDO, SALVA-
TORE GRECO, FRANCESCO POLIZZI,
Defendants-Appellants.
Before:
NEWMAN, PIERCE and MAHONEY,
Circuit Judges.
>
2a
Appendix A
Opinion of United States Court of Appeals
Appeals from judgments of conviction and sentence
entered by the United States District Court for the South-
ern District of New York (Leval, Judge) for conspiracy,
other narcotics law violations, currency reporting crimes,
and other offenses.
Affirmed in part; reversed in part.
>
JOSEPH W. RYAN, JR., Esq., Uniondale,
N.Y., for Defendant-Appellant Filippo
Casamento.
BoBBI C. STERNHEIM, Esq., New York,
N.Y., for Defendant-Appellant Emanuele
Palazzolo.
GERALD J. DICHIARA, Esq., New York,
N.Y., for Defendant-Appellant Giovanni
Cangialosi.
SUSAN G. KELLMAN, Esq., New York, N.Y.,
for Defendant-Appellant Salvatore
Salamone.
BARRY M. FALLICK, Esq., New York, N.Y.
(Rochman, Platzer & Fallick, New York,
N.Y., of counsel), for Defendants-
Appellants Giovanni Ligammari and
Giuseppe Lamberti.
KENNETH J. KAPLAN, Esq., New York, N.Y.
(Robert F. Katzberg, Alice K. Berke,
Kaplan & Katzberg, New York, N.Y., of
counsel), for Defendant-Appellant Frank
Castronovo.
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Appendix A
Opinion of United States Court of Appeals
CHARLES F. CARNESI, Esq., Brooklyn, N.Y..,
for Defendant-Appellant Gaetano Bada-
lamenti.
JAMES A. COHEN, Esq., New York, N.Y.
(Mario Malerba, Queens, N.Y.. of coun-
sel), for Defendant-Appellant Salvatore
Catalano.
JONATHAN J. SILBERMANN, Esq., New York,
N.Y., for Defendants-Appellants Salva-
tore Mazzurco and Salvatore Lamberti.
Marvin E. Schechter, Esq., Brooklyn,
N.Y. (Sercarz, Schechter & Lopez,
Brooklyn, N.Y., of counsel), for
Defendant-A ppellant Salvatore Lamberti.
SALVATORE S. RUSSO, Esq., Brooklyn, N.Y.,
for Defendant-Appellant Giuseppe
Trupiano.
HARRIET B. ROSEN, Esq., Brooklyn, N.Y.,
for Defendant-Appellant Giuseppe
Vitale.
James T. Moriarty, Esq., New York,
N.Y., for Defendant-Appellant Lorenzo
Devardo.
ALAN SCRIBNER, Esq., Contoocook, N.H.
(Larry Bronson, Bayonne, N.J., of coun-
sel), for Defendant-Appellant Salvatore
Greco.
MORRILL J. COLE, Esq., Hackensack, N.J.
(Evan L. Steinberg, Cole, Schotz, Bern-
stein, Meisel & Forman, Hackensack,
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Appendix A
Opinion of United States Court of Appeals
N.J., of counsel), for Defendant-
Appellant Francesco Polizzi.
LOUIS J. FREEH, Assistant United States
Attorney, New York, N.Y. (Rudolph W.
Giuliani, United States Attorney for the
Southern District of New York, Robert B.
Bucknam, Andrew C. McCarthy, Daniel
C. Richman, Celia Goldwag Barenholtz,
Assistant United States Attorneys, New
York, N.Y., Richard A. Martin, Robert
C. Stewart, Department of Justice Attor-
neys, of counsel), for Appellee.
Robert M. Kaufman, Charles S. Sims,
Andrew W. Reich (Proskauer, Rose,
Goetz & Mendelsohn, New York, N.Y.,
of counsel), Attorneys for The New York
Community Trust, Amicus Curiae.
.
PIERCE, Circuit Judge:
These appeals stem from the convictions of various per-
sons alleged to have been members of an international nar-
cotics ring. This prosecution came to be known popularly
as ‘‘The Pizza Connection Case.’’ Appellants present
numerous issues for review.
For the reasons set forth below, we reverse the judg-
ments of conviction and sentence of appellant Frank Cas-
tronovo on count ten and appellant Giuseppe Trupiano on
counts one and sixteen, and we vacate the restitution pen-
alties ordered as to eight of the appellants; otherwise, we
affirm the judgments of conviction and sentence.
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Appendix A
Opinion of United States Court of Appeals
BACKGROUND
Appellants Filippo Casamento, Emanuele Palazzolo,
Giovanni Cangialos!, Salvatore Salamone, Giovanni
Ligammari, Frank Castronovo, Gaetano Badalamenti,
Salvatore Catalano, Giuseppe Lamberti, Salvatore Maz-
zurco, Salvatore Lamberti, Giuseppe Trupiano, Giuseppe
Vitale, Salvatore Greco and Francesco Polizzi appeal their
judgments of conviction and sentence after a jury trial
entered in the United States District Court for the South-
ern District of New York (Leval, Judge) on Indictment SS
84 Cr. 236, which charged thirty-five defendants with
engaging in a drug trafficking and money laundering con-
spiracy. Badalamenti also appeals his judgment of convic-
tion (Metzner, Judge) on Indictment 86 Cr. 1128, which
charged him with one count of criminal contempt, to_
which Badalamenti conditionally pled guilty. Appellant
Lorenzo Devardo, named as a defendant in Indictment SS
84 Cr. 236, pled guilty to lesser charges in a superseding
information. He challenges the sentence he received on his
judgment of conviction on Information SSSSS 84 Cr. 236,
which charged him with two counts of firearms violations
under 26 U.S.C. §§ 5842, 5845, 5861(d), 5861(h) and
5871.
Indictment SS 84 Cr. 236 was filed on February 19,
1985. Following pleas of not guilty, trial began on Septem-
ber 30, 1985 and contimwed for more than seventeen
months, until March 2, 1987, when the jury returned
guilty verdicts against eighteen of the named defendants.
Fifteen of these defendants now appeal their judgments of
conviction and sentence.
Indictment SS 84 Cr. 236 contained sixteen counts.
Count one charged all thirty-five defendants with conspir-
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Appendix A
Opinion of United States Court of Appeals
ing to import and distribute narcotics in violation of 21
U.S.C. § 846. All of the appellants except Salvatore Sala-
mone, who was acquitted on this count, and Lorenzo
Devardo, who pled guilty to lesser charges, were found
guilty on this count. Counts two through eleven each
charged a single defendant with engaging in a continuing
criminal enterprise in violation of 21 U.S.C. § 848.
Gaetano Badalamenti was found guilty of count two,
Salvatore Catalano was found guilty of count three,
Giuseppe Lamberti was found guilty of count five and
Frank Castronovo was found guilty of count ten. The jury
acquitted Salvatore Mazzurco of count six and Salvatore
Lamberti of count seven. The defendants charged in
counts four (Giuseppe Ganci), eight (Pietro Alfano), nine
(Giusepwe Soresi) and eleven (Gaetano Mazzara) are not
appellants here. Appellants Frank Castronovo, Salvatore
Catalano, Salvatore Greco and Salvatore Salamone were
found guilty of count twelve, which charged fifteen defen-
dants with conspiring to transport money out of the
United States without filing required currency reports in
violation of 18 U.S.C. § 371. Appellant Salvatore Sala-
mone was found guilty of count thirteen, which charged
six defendants with violating 18 U.S.C. §§ 1001 and 2 by
Se causing false statements concerning various cash deposits
to be made to the Internal Revenue Service or aiding and
abetting the making of such statements. Count fourteen
charged fifteen defendants with violating 31 U.S.C.
§§ 1059 (recodified at 31 U.S.C. § 5322), 1081 (recodified
at 31 U.S.C. § 5313), 5313(a) and 5322(b) and 18 U.S.C.
§ 2 by failing to file required currency reports or aiding
and abetting such failure. Appellants Frank Castronovo,
Salvatore Catalano, Salvatore Greco and Salvatore Sala-
mone were found guilty on this count. Count fifteen
charged ten defendants with failing to file required cur-
ee
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Appendix A
Opinion of United States Court of Appeals
rency reports in violation of 31 U.S.C. §§ 1059 (recodified
at 31 U.S.C. § 5322) and 1101 (recodified at 31 U.S.C.
§ 5316) and 18 U.S.C. § 2. Appellants Frank Castronove
and Salvatore Catalano were found guilty on this count.
Finally, count sixteen charged thirty-one defendants,
including all of the appellants except Gaetano Badala-
menti, with violating 18 U.S.C. §§ 1962(d) and 2 by con-
spiring to conduct and participating, through a pattern of
racketeering, in an enterprise which engaged in interna-
tional drug trafficking and money laundering related
thereto, or aiding and abetting therein. Found guilty on
this count were appellants Giovanni Cangialosi, Filippo
Casamento, Frank Castronovo, Salvatore Catalano,
Salvatore Greco, Giuseppe Lamberti, Salvatore Lamberti,
Giovanni Ligammari, Salvatore Mazzurco, Emanuele
Palazzolo, Francesco Polizzi, Giuseppe Trupiano and
Giuseppe Vitale. Salvatore Salamone was acquitted of
count sixteen and Lorenzo Devardo pled guilty to lesser
charges. The charges for which each appellant was
indicted, the disposition of those charges, and the senten-
ces imposed are set forth in an appendix to this opinion.
Indictment SS 84 Cr. 236 charged and the government
sought to prove at trial the existence of a large-scale con-
spiracy to import and distribute narcotics and to launder
the proceeds of the drug sales—count one charged a nar-
cotics conspiracy and count sixteen a RICO conspiracy.
We will not recount all the evidence adduced at trial. How-
ever, it is necessary to provide a brief overview of the
alleged conspiracy.
The government contends that the alleged criminal
events herein began in Sicily in the 1970’s when members
of the Sicilian Mafia decided to begin shipping narcotics to
the United States. These shipments came from two places,
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Appendix A
Opinion of United States Court of Appeals
Sicily and South America. In Sicily, Mafia members
imported morphine base from Turkey, refined it, and
smuggled the heroin they produced into the New York
metropolitan area. Among the Sicilian Mafia members
who the government contends were responsible for ship-
ping the heroin and developing a distribution network in
the United States were defendant Giuseppe Soresi and
appellants Lorenzo Devardo and Giovanni Cangialosi.
According to the government, the source of narcotics
from South America was appellant Gaetano Badalamenti,
a fugitive living in Brazil who was allegedly the deposed
head of the Sicilian Mafia and who, in connection with
this prosecution, later was extradited from Spain.
It is contended that Badalamenti sent narcotics to the
Midwest, where the drugs allegedly were distributed by
defendants Pietro Alfano and Salvatore Evola and appel-
lants Emanuele Palazzolo, Giuseppe Vitale and Giuseppe
Trupiano. The midwestern distributors delivered narcotics
to a distribution group in the New York area. This New
York group, comprised of members of the American
Mafia, or La Cosa Nostra, also received heroin shipments
from Sicily.
Further, according to the government, appellant Salva-
tore Catalano led the New York group, closely assisted by
defendant Giuseppe Ganci and appellants Giuseppe Lam-
berti, Salvatore Lamberti, Salvatore Greco and Salvatore
Mazzurco. Allegedly, Catalano also worked closely with
defendant Gaetano Mazzara and appellant Frank Cas-
tronovo, who the government claims were two Sicilian
Mafia members stationed in New Jersey.
The government asserts that the New York group sold
narcotics to secondary wholesalers, such as appellant
Filippo Casamento and defendant Benito Zito, and that to
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Appendix A
Opinion of United States Court of Appeals
finance its importation of narcotics the New York group
relied on payments from investors, such as appellants
Francesco Polizzi and Giovanni Ligammari.
In addition, according to the government, as part of the
conspiracy’s money laundering operation, appellants
Catalano, Castronovo, Ganci, Salvatore Salamone and his
brother, defendant Filippo Salamone, accumulated the
conspiracy’s cash proceeds in pizza parlors, and then
either smuggied the cash out of the country in suitcases or
laundered it through a maze of bank accounts. The gov-
ernment asserts that the money was deposited in Swiss
bank accounts, and from there went to conspirators in
Italy or to a man known as Musullulu, who the govern-
ment claims supplied the conspirators with morphine base
from Turkey.
Having briefly described the alleged criminal activities,
we now turn to a discussion of the various issues raised on
appeal.
DISCUSSION
1. Severance and Related Issues
A principal issue raised on appeal is whether the joint
trial of the numerous defendants deprived the individual
defendants of their right to due process. To support their
claims of lack of due process, appellants mainly point to
(1) the length and complexity of the trial, (2) the spillover
prejudice which allegedly resulted from the joinder of the
defendants, and (3) the publicity and the alleged atmo-
sphere of violence which surrounded the trial.
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Appendix A
Opinion of United States Court of Appeals
A. Length and Complexity of Trial .
By any standard, the magnitude of this trial was
extraordinary. Based on a multi-count indictment which
charged thirty-five defendants, the joint trial of twenty-
one defendants spanned more than seventeen months,
produced more than forty-thousand pages of trial tran-
script, and, according to defense counsel, involved the
introduction of thousands of exhibits and the testimony of
more than 275 witnesses.
During the course of the trial, Judge Leval allowed the
government to display charts to the jury which, through
graphs, maps or brief written descriptions, summarized
the evidence the government had presented. Much of this
evidence was uncontested, consisting of the testimony of
government agents regarding observations made during
surveillance, transcripts of intercepted telephone conver-
sations, and seized items such as guns or money. Before a
chart was shown to the jury, the judge gave the defendants
a chance to object to its contents. In some instances, he
directed that changes be made in the contents of a chart in
response to a defendant’s objection. Several times during
the trial, the district judge instructed the jury that the
charts were not evidence. He also told the jurors that they
were free to disregard the content of the charts if they
chose to do so. The judge repeated these instructions dur-
ing his charge.
Near the end of the trial, the government compiled a
binder which contained reproductions of the summary
charts which had been displayed to the jury during the
trial. During its deliberations, the jury requested and
received copies of this binder, as well as the entire trial
transcript, specifically identified items of evidence, and
also a blackboard, chalk and an eraser.
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Appendix A
Opinion of United States Court of Appeals
Appellants argue that the length and complexity of the
trial prevented the jury from adequately remembering and
evaluating the evidence. They argue that because the jury
could not remember the evidence sufficiently, it had to
rely uncritically on the government’s summary charts.
Appellants contend that, because the jury was unable to
evaluate the evidence independently, severance was
required, and that the district court’s refusal to sever the
trial, as requested, deprived them of due process.
In assessing appellants’ argument, we begin by noting
the standard of review we must apply to a district court’s
decision to deny a motion for severance. Motions to sever
are committed to the sound discretion of the trial judge.
United States v. Chang An-Lo, 851 F.2d 547, 556 (2d
Cir.), cert. denied, 109 S. Ct. 493 (1988). We will reverse a
ruling denying a motion to sever upon a showing that the
trial judge clearly abused his discretion. Jd. In order to
meet this ‘‘extremely difficult burden’? of showing an
abuse of discretion, an appellant must demonstrate that
the denial of the motion caused substantial prejudice.
United States v. Carpentier, 689 F.2d 21, 27 (2d Cir. 1982)
(citing United States v. Werner, 620 &.2d 922, 928 (2d Cir.
1980)), cert. denied, 459 U.S. 1108 (1983). If the denial of
the motion causes some prejudice, but less than substan-
tial prejudice, we are not apt to reverse, since, by and
large, joinder promotes judicial efficiency. Jd.
We do not agree that the length and complexity of this
trial caused the appellants substantial prejudice. First of
all, we have no reason to believe that the jury lacked the
intellectual capacity to meet the task before it. Although
the jury had to evaluate a tremendous amount of evidence,
the nature of the evidence and the legal concepts involved
in the case were not extraordinarily difficult to compre-
.
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Appendix A
Opinion of United States Court of Appeals
hend, as they might be, for example, in a complex anti-
trust case involving abstruse economic theories or an
employment discrimination case involving technical statis-
tical evidence and formulae. Here the jury was required to
grasp the legal significance of shipments of narcotics, sales
of narcotics, and transfers of money. See United States v.
Moten, 564 F.2d 620, 627 (2d Cir.) (lengthy, multi-
defendant narcotics conspiracy trial not ‘‘beyond the ken
of the ordinary juror,’’ since ‘‘purchase and sale of hard
drugs is basically a simple operation’’), cert. denied, 434
U.S. 942 (1977).
The clearest indication that the jury was able to evaluate
the evidence, despite its being voluminous, is provided by
the jury’s verdicts themselves. We have held that in a
multi-defendant case, a mix of guilty and not guilty ver-
dicts is some indication that the jury was able to sift
through voluminous evidence and differentiate among
various defendants. Here, the jury’s not guilty verdicts on
certain counts (see supra Background; infra Appendix)
inform us that the jury differentiated among the defen-
dants. Moten, 564 F.2d at 627; see also United States v.
Carson, 702 F.2d 351, 367 (2d Cir.), cert. denied, 462 U.S.
1108 (1983). The clear distinctions the jury drew among
the defendants strongly suggest that it was indeed able to
evaluate the evidence critically and follow the instructions
of the trial judge.
Another indication that the jury was able to evaluate the
evidence fairly was the apparent effort it made during its
deliberations to parse and weigh the evidence. The jury’s
requests for the entire trial transcript, for various items ir
evidence, and for a blackboard, chalk, and eraser, as well
as copies of the summary chart book, suggest that the
jurors, rather than despairing in the face of the daunting
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Opinion of United States Court of Appeals
amount of evidence, accepted their arduous role and dili-
gently and conscientiously proceeded over the six-day
period of deliberations to meet their responsibilities as
fact-finders. See United States v. Aiello, 771 F.2d 621, 631
(2d Cir. 1985) Gury’s request during deliberations for mul-
tiple readbacks of testimony, and its determination of not
guilty on certain charges, indicative of ‘‘jury’s careful dis-
crimination in weighing the evidence’’). We believe that a
jury overwhelmed by the evidence would not have mani-
fested the interest shown here in making such an effort.
One incident in particular buoys our belief that the jury
fairly and carefully evaluated the evidence. During its
deliberations, the jury, in a note to the judge, requested
‘testimony and surveillance reports, if any, of July 24,
1983 surveillance.’’ According to one of the racketeering
acts with which Castronovo was charged, number 56 on
the jury’s verdict sheet, he travelled from New Jersey to
New York on July 24, 1983. After receiving the jury’s
note, the prosecutor and defense counsel agreed that no
surveillance evidence relating to Castronovo’s activities on
July 24, 1983 existed. The judge then instructed the jury to
strike number 56 from the verdict sheet. The jury’s ability
to discover that no evidence supported this particular
racketeering act, when 128 such acts were charged in the
indictment, is telling support for the conclusion that the
jury scrutinized the evidence with great care.
We do not believe that the jury’s use of the govern-
ment’s summary charts rendered the trial unfair. This
court has long approved the use of charts in complex
trials, and has allowed the jury to have the charts in the
jury room during its deliberations, United States v. Pinto,
850 F.2d 927, 935 (2d Cir.), cert. denied, 109 S. Ct. 174
(1988), so long as the judge properly instructs the jury that
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Opinion of United States Court of Appeals
it is not to consider the charts as evidence. United States v.
Baccollo, 725 F.2d 170, 173 (2d Cir. 1983); United States
v. Goldberg, 401 F.2d 644, 647-48 (2d Cir. 1968), cert.
denied, 393 U.S. 1099 (1969). Here, the judge gave the
jury the required instruction. We conclude that the court’s
rulings permitting the jury’s use of the government’s sum-
mary charts was not improper. .
Appellants argue that despite the judge’s instructions,
the vast amount of evidence presented to the jury made it
inevitable that the jury would rely uncritically on the gov-
ernment’s summary charts. We do not accept this argu-
ment. Barring contrary evidence, we must presume that
juries follow the instructions given them by the trial judge.
Richardson v. Marsh, 481 U.S. 200, 211 (1987); United
States v. Pforzheimer, 826 F.2d 200, 205 (2d Cir. 1987).
This presumption is ‘‘rooted less in the absolute certitude
that [it] is true than in the belief that it represents a reason-
able practical accommodation of the interests of the state
and the defendant in the criminal justice process.’’
Richardson, 481 U.S. at 211. Here, no evidence shows
otherwise, and we thus presume that the jury followed the
judge’s instruction not to consider the summary charts as
evidence or as fact, but rather to evaluate the evidence
independently.
In addition to their argument that the jury could not
fairly evaluate the great volume of evidence, appellants
argue that the length and complexity of the trial placed a
great burden on the jurors, and they suggest that this bur-
den may have caused the jurors to harbor resentment
toward the defendants. Although the trial was undoubt-
edly burdensome for the jury, and one juror, later
excused, did express resentment towards the defendants,
we do not believe that the burden caused appellants to suf-
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Opinion of United States Court of Appeals
fer substantial prejudice. We base this conclusion in large
part (1) on the verdicts the jury rendered, and (2) on the
apparently careful way in which the jury evaluated the evi-
dence (see discussion above), both of which support Judge
Leval’s characterization of the jury’s performance during
the trial as ‘‘fair, open-minded, [and] conscientious.’’
Although we hold here that the length and complexity
of this trial did not deprive appellants of their right to due
process, we do have misgivings about trials of this magni-
tude. We are aware that lengthy multi-defendant trials
may provide certain benefits in terms of the judicial sys-
tem, see Richardson, 481 U.S. at 209-10 (such trials can
promote efficiency and minimize the chance of inconsis-
tent verdicts); United States v. Cohn, 145 F.2d 82, 91 (2d
Cir. 1944) (such trials can allow witnesses to avoid the bur-
den of successive trials), cert. denied, 323 U.S. 799 (1945),
however, they also can have disadvantages, see United
States v. Gallo, 668 F. Supp. 736, 754-56 (E.D.N.Y. 1987)
(such trials can place great burdens on jurors, defendants,
counsel, and trial judges); see generally Federal Bar Coun-
cil Committee on Second Circuit Courts, A Proposal Con-
cerning Problems Created By Extremely Long Criminal
Trials (1989). We recognize the evident disadvantages
which can occur in these mega-trials; we also recognize
that district judges must retain a considerable degree of
discretion in determining whether, on balance, the fair
administration of justice will be better served by one
aggregate trial of all indicted defendants or by two or
more trials of groups of defendants. However, we believe
that some benchmarks ought tc be set out to guide the
exercise of that discretion. First, the district judge should
elicit from the prosecutor a good-faith estimate of the time
reasonably anticipated to present the government’s case.
Though the prosecutor’s estimate should not become the
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Opinion of United States Court of Appeals
subject of a contested hearing, the judge need not accept
the estimate without question but should be free to make
an independent assessment based on various factors
including the number of defendants, the time and territo-
rial scope of the crimes charged, the number of witnesses
likely to be called, and the number and size of exhibits
likely to be introduced, including wiretaps.
In those cases where the judge determines that the time
for presentation of the prosecution’s case will exceed four
months, the judge should oblige the prosecutor to present
a reasoned basis to support a conclusion that a joint trial
of all the defendants is more consistent with the fair
administration of justice than some manageable division
of the case into separate trials for groups of defendants. In
determining whether the prosecutor has made an adequate
showing, the judge should weigh the interests of the prose-
cution, the defendants, the jurors, the court, and the pub-
lic. Again, we do not contemplate a contested hearing nor
precise findings on this subject. A submission by the pros-
ecutor, a response by the defendants seeking a severance,
and a conclusion by the judge will suffice. The judge
should give particular attention to the feasibility of con-
ducting separate trials for any one or more defendants as
to whom a separate trial would be relatively brief, espe-
cially if such defendants are willing to stipulate, for pur-
poses of a separate trial, to facts concerning the activities
of other defendants who remain to be tried in the main
trial. Such separate trials, if ordered, may, in the judge’s
discretion, be assigned for simultaneous trial before other
judges.
In considering the advisability of separate brief trials for
one or more defendants, the judge should explore with the
prosecutor whether the interests of justice would be ade-
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Opinion of United States Court of Appeals
quately served by limiting the prosecution of such defen-
dants to charges that can be proven expeditiously and that,
in the event of conviction, carry exposure to adequate
maximum penalties. It makes little sense to extend the time
of a multi-month trial by including a peripheral defendant
against whom a few days of evidence in a separate trial
would be sufficient to obtain conviction on scaled down
charges exposing him to approximately as much punish-
ment as he would likely have received on the original
charges.
Finally, in assessing the appropriate number of defen-
dants for any trial in which the prosecution’s case is likely
to require more than four months to present, the judge
should oblige the prosecutor to make an especially com-
pelling justification for a joint trial of more than ten
defendants. Even in the event that the aggregate time for
separate trials would not be less than the time for a joint
trial of all defendants, there are significant advantages to
be achieved. The lives of each group of jurors would be
imposed upon for a shorter time, there would be a smaller
group of defense counsel in each trial with a consequent
reduction in trial disputes, the trial judge would have a
more manageable task, and the jurors’ ability to focus on
individual defendants would be enhanced. While the pros-
ecution’s estimate that separate trials will each require all!
of the evidence presented at a joint trial is often not borne
Out when severances occur, we note that in this case there
is a striking example of an instance when a contrary esti-
mate was made. One of the original co-defendants herein
was Giuseppi Baldinucci. Instead of enduring a seventeen-
month trial, he was severed at the instance of the govern-
ment and brought to trial on narrower charges. He was
convicted after a trial lasting just seven days.
18a
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Opinion of United States Court of Appeals
We recognize the extreme diligence with which Judge
Leval exercised his discretion in deciding whether to pro-
ceed with a joint trial of the twenty-one defendants in this
case. We are entirely satisfied that his trial management
decisions fully respected the rights of the defendants.
Indeed, the judge is to be commended for the fairness,
patience, and sound judgment he displayed throughout
the conduct of this most extraordinary proceeding. Never-
theless, we offer the guidance outlined in the preceding
paragraphs in the hope that we will not soon again be pre-
sented with the transcript of a seventeen-month trial in
which more than thirty persons were named as defendants.
B. Alleged Spillover Prejudice
Several appellants, especially those whose alleged roles
in the conspiracy were comparatively minor, argue that
evidence of the conduct of other defendants and a lack of
coordination in defense strategies caused them substantial
spillover prejudice which could have been avoided had
their motions for severance been granted. We do not
believe that any prejudicial spillover suffered by any
appellant was sufficiently substantial to warrant reversal
based on the denial of the severance motions. First, even if
each defendant had been tried separately, much of the evi-
dence the government presented at the joint trial regarding
the activities of alleged co-conspirators would have been
admissible in the single-defendant trials. See United States
v. Bari, 750 F.2d 1169, 1178 (2d Cir. 1984), cert. denied,
472 U.S. 1019 (1985); United States v. Cunningham, 723
F.2d 217, 230 (2d Cir. 1983), cert. denied, 466 U.S. 951
(1984); see also Fed. R. Evid. 801(d)(2)(E). Further, the
district judge instructed the jury to consider the evidence
—~against each defendant separately from the evidence pre-
sented against the other defendants. See Carson, 702 F.2d
OE
19a
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Opinion of United States Court of Appeals
at 367 (judge’s instructions to jury to afford each defen-
dant separate consideration, inter alia, leads to finding of
no unfair spillover prejudice). More importantly, as has
been discussed, the jury carefully evaluated the evidence
and rendered discriminating verdicts. See Garcia, 848 F.2d
at 1334 (partial acquittal of a defendant in multi-
defendant trial ‘‘is a strong indication. . . that there was
no prejudicial ‘spillover’ of evidence’’); Carson, 702 F.2d
at 367 (verdicts of acquittal on certain counts show no sig-
nificant spillover effect occurred). Because of the district
court’s thorough instructions to the jury, and because we
believe the jury’s verdicts were reached after careful con-
sideration of the evidence, we conclude that any prejudice
appellants suffered in this regard was less than substantial.
Our conclusion is not altered by consideration of the
additional prejudicial spillover allegedly suffered by
appellants as a result of a lack of coordination in the testi-
mony and trial strategies of the individual defendants.
Appellants point to the fact that Badalamenti testified that
certain telephone conversations he had with Mazzurco did
not concern narcotics, while Mazzurco testified that the
conversations concerned the sale of precious stones.
Appellants also point to certain disagreements which arose
among the defendants over the cross-examination of cer-
tain witnesses and over the jury instructions which should
be requested. Moreover, Cangialosi argues that he was
prejudiced when Badalamenti’s counsel, in his summa-
tion, accused Cangialosi of having carried a message, writ-
ten in code, which allegedly directed the Mafia to kill
Badalamenti.
Considering these contentions seriatim, we first note
that, while differences among the defenses asserted by co-
defendants might constitute justification for severance
20a
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Opinion of United States Court of Appeals
when the jury, in order to believe one defendant, ‘** ‘must
necessarily disbelieve the testimony offered on behalf of
his co-defendant,’ ’’ Carpentier, 689 F.2d at 28 (quoting
United States v. Berkowitz, 662 F.2d 1127, 1134 (Sth Cir.
Unit B Dec. 1981)), here, Badalamenti’s and Mazzurco’s
defenses were not in conflict. The jury could have believed
both that the Badalamenti-Mazzurco telephone conversa-
tions did not concern narcotics trafficking and that they
did concern the sale of precious stones.
Additionally, we do not believe that differences in
defendants’ trial tactics and strategies required severance.
Differences such as those noted by appellants will almost
inevitably arise in mul!ti-defendant trials, and to hold that
they require severance would effectively ban this type of
trial; we decline to impose such a ban.
Finally, we do not believe that Badalamenti’s accusation
against Cangialosi required severance. Severance is not
necessarily warranted ‘‘even if the defendants are hostile
or attempt to cast the blame on each other.’’ United States
v. Becker, 585 F.2d 703, 707 (4th Cir. 1978), cert. denied,
439 U.S. 1080 (1979). Mere ‘‘fingerpointing’’ does not
require severance. United States v. Arruda, 715 F.2d 671,
679 (Ist Cir. 1983). Here, Badalamenti’s counsel suggested
that Cangialosi may not even have known the content of
the message he was accused of having carried. Under these
circumstances, we cannot conclude that Cangialosi suf-
fered prejudice sufficient to compel severance. In sum, we
do not believe that the defendants’ lack of coordination in
their defense strategies—even considered in conjunction
with the spillover prejudice allegedly suffered as a conse-
quence of the introduction of evidence-eencerning the con-
duct of other defendants—resulted in a denial of
appellants’ due process rights.
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Opinion of United States Court of Appeals
C. Publicity and Alleged Atmosphere of Violence
Further, appellants argue that the publicity and the
alleged atmosphere of violence which surrounded the joint
trial rendered it unfair. To support this argument appel-
lants point to the following: (1) the government’s allega-
tion, in its opening statement to the jury, that Catalano
was inveived in the 1979 murder of the alleged Mafia fig-
ure Carmine Galante; (2) the great deal of publicity which
surrounded the trial in general; (3) the publicity surround-
ing the murder, approximately two and one-half months
into the trial, of the alleged Mafia figure Paul Castellano;
(4) the violent death, about fourteen months into the trial,
of defendant Gaetano Mazzara and the publicity which
surrounded this event; (5) the non-fatal shooting of defen-
dant Pietro Alfano, which occurred during the summation
stage of the trial, and the publicity which surrounded this
event; and (6) the government’s display to the jury of vari-
ous guns seized from Greco’s pizzeria. As we discuss
below, after reviewing the record, we cc clude that the
publicity and the alleged atmosphere of violence which
surrounded this case did not deprive appellants of due
process.
1. The Galante Murder
The district court stated that it was prejudicial for the
government to mention in its opening argument Cata-
lano’s alleged connection to the Galante murder. Rather
than grant a mistrial however, Judge Leval instructed the
jury that the Galante murder was not a part of the trial
and that the jury should not consider it. Although the
defendants, as the district court acknowledged, were prej-
udiced by the government’s mention of the Galante mur-
der, we do not believe that this prejudice was substantial
22a
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Opinion of United States Court of Appeals
enough to have deprived appellants of their right to due
process. First, given the care with which the jury appar-
ently considered the evidence (see discussion above), we
think the government’s prejudicial statement did not have
a significant impact. Cf. Aiello, 771 F.2d at 630-31 (jury’s
careful discrimination in weighing evidence indicates jury
was not influenced by third party contact with one of the
jurors). Second, the district judge gave the jury a proper
instruction. Third, without more, we presume, as we
must, Richardson, 481 U.S. at 211; Pforzheimer, 826 F.2d
at 205, that the jury followed the judge’s instruction not to
consider the government’s mention of the Galante mur-
der. In short, in light of the jury’s apparent care in weigh-
ing the evidence, coupled with the judge’s instruction to
the jury, we hold that the government’s statement in its
opening argument did not deprive defendants of a fair
trial.
2. Publicity in General
Without a doubt, this trial attracted a great deal of
media attention. We do not believe, however, that this
publicity rendered the trial unfair. On several occasions,
Judge Leval instructed the jury not to pay attention to
anything which appeared in the media concerning the trial.
In the absence of evidence to the contrary, we will presume
the jury followed these admonitions and avoided exposure
to news reports about the trial. See United States v.
Greschner, 802 F.2d 373, 381 (10th Cir. 1986), cert.
denied, 480 U.S. 908 (1987); United States v. Metzger, 778
F.2d 1195, 1209 (6th Cir. 1985), cert. denied, 477 U.S. 906
(1986). Some warrant for this presumption is provided by
the fact that several times during the trial the judge con-
ducted voir dire of the jury to satisfy himself that the
23a
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Opinion of United States Court of Appeals
jurors had followed his instructions and had indeed
avoided news reports about the case, e.g., on January 13,
1986, following the reported appearance in The New York
Times of an ‘‘article’’ by former President Ronald Reagan
which concerned organized crime and which favorably
mentioned then United States Attorney Rudolph Giuliani;
on January 16, 1986, following the reported appearance of
a cover story in New York magazine about Nicholas
Pileggi’s book Wise Guy: Life in the Mob; on February 5,
1986, following the reported appearance in the New York
Post of an article recounting testimony from the trial; and
on December 3, 1986, following the Mazzara murder (see
discussion below). A district judge has substantial discre-
tion in determining whether potentially prejudicial public-
ity has affected a jury’s impartiality, and a conclusion that
the jury remained impartial will not be overturned on
appeal absent an abuse of discretion. United States v.
Scopo, 861 F.2d 339, 349 (2d Cir. 1988), cert. denied, 109
S. Ct. 1750 (1989). Here, in light of the district judge’s
instructions and inquiries of the jury via voir dire, and his
considered conclusions as to the jurors’ impartiality, we
believe that he acted well within his discretion in deciding
that the publicity which the trial generated did not affect
the jurors’ ability to serve fairly.
3. The Castellano, Mazzara, and Alfano Incidents
and the Publicity Surrounding Them
On December 16, 1985, Paul Castellano, a person who
had been listed as an unindicted co-conspirator herein and
whose name appeared on one of the charts shown to the
jury, was murdered outside a restaurant in midtown Man-
hattan. The murder attracted a great deal of attention in
the media. The day after the killing, the trial judge
24a
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Opinion of United States Court of Appeals
instructed the jury to ignore all news reports about the
event. His inquiry of the jurors as to whether any of them
would be unable to comply with his instruction evoked no
negative response.
One year later, defendant Mazzara was murdered and
his body was discovered in Brooklyn. After the murder,
the judge told the jury that Mazzara had died, that the
cause of his death was unrelated to the trial, and that the
members of the jury should stay home and avoid all news
reports entirely for two days. Judge Leval interviewed
each juror to ensure that each could comply with his
instructions. Later, after conducting voir dire of the jury,
he was assured that the jury had complied with his instruc-
tions.
In February 1987, during the summation stage of the
trial, defendant Alfano was shot while walking in the
streets of New York City. Upon learning of the shooting,
the district judge instructed the jury to avoid all news
reports. He then conducted a voir dire of the jury to
ensure that the impartiality of the jury was not affected by
the shooting; he was so assured. Finally, he ordered the
jury sequestered for the remaining days of the trial.
We are satisfied that the judge’s actions following the
Castellano, Mazzara, and Alfano events sufficiently pro-
tected appellants from undue prejudice from the publicity
these incidents generated, and that the judge did not abuse
his discretion in deciding to proceed with the trial. See
Scopo, 861 F.2d at 349; Greschner, 802 F.2d at 381;
Metzger, 778 F.2d at 1209.
Apart from the publicity surrounding these incidents,
whether the sudden absences of Mazzara and Alfano from
the courtroom may possibly have made the jury more
25a
Appendix A
Opinion of United States Court of Appeals
inclined to believe that those two defendants, and by asso-
ciation, the rest of the defendants, led lives of violence is a
matter of conjecture, and, as such, is not a sufficient basis
from which we can conclude that the trial was unfair,
especially given the appropriate actions timely undertaken
by the trial judge.
4. Display of the Guns
Finally, we do not believe the government’s display to
the jury of guns, including an Uzi rifle, a semi-automatic
pistol and a Luger pistol, seized from Greco’s pizzeria,
rendered the trial unfair. Although the government did
not allege that the defendants used these guns, the guns
themselves, in context, were probative of the existence of
the narcotics conspiracy charged. See United States vy.
Fernandez, 829 F.2d 363, 367 (2d Cir. 1987); United States
v. Wiener, 534 F.2d 15, 18 (2d Cir.), cert. denied, 429 U.S.
820 (1976). While Judge Leval, in his discretion, could
have restricted the government only to showing photo-
graphs of these guns to the jury, we do not believe that the
judge unfairly prejudiced appellants by allowing the gov-
ernment to display the guns themselves.
In sum, we conclude that appellants did not suffer a
deprivation of their rights to due process as a result of the
length and complexity of the trial, or due to any spillover
prejudice which they may have suffered, or due to the
publicity and the alleged atmosphere of violence which
surrounded the trial.
Il. Sufficiency of the Evidence
Eleven of the appellants—Badalamenti, Cangialosi,
Casamento, Castronovo, Greco, Ligammari, Palazzolo,
26a
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Opinion of United States Court of Appeals
Polizzi, Salamone, Trupiano 1d Vitale—claim that the
evidence presented against them was legally insufficient to
support their convictions on certain counts. We conclude
that the claims of Castronovo and Trupiano have merit.
We find the claims of the other appellants lack merit.
Below we set forth the reasons for our conclusions.
A. General Principles
The standards by which we review claims challenging
the sufficiency of the evidence are well established. An
appellant challenging the sufficiency of the evidence bears
a very heavy burden. United States v. Nusraty, 867 F.2d
759, 762 (2d Cir. 1989). A conviction must be allowed to
stand if, ‘“‘after viewing the evidence in the light most
favorable to the prosecution,” the reviewing court finds
that ‘‘any rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt.’’
Jackson vy. Virginia, 443 U.S. 307, 319 (1979). A jury’s
verdict will be sustained if there is substantial evidence to
support it. United States v. Nersesian, 824 F.2d 1294, 1324
(2d Cir.), cert. denied, 108 S. Ct. 355 (1987).
Further, a reviewing court must view pieces of evidence
not in isolation but in conjunction. United States v.
Young, 745 F.2d 733, 762 (2d Cir. 1984), cert. denied, 470
U.S. 1084 (1985). Viewing the evidence in conjunction is
especially important in a conspiracy case such as this,
where so much of the evidence is not incriminating on its
face and the jury, to infer the existence of a conspiracy,
must piece together circumstantial evidence. See Young,
745 F.2d at 762.
Circumstantial evidence, it should be noted, if relied
upon by the jury, is of no lesser probative value than direct
evidence. United States v. Glasser, 443 F.2d 994, 1007 (2d
27a
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Opinion of United States Court of Appeals
Cir.), cert. denied, 404 U.S. 854 (1971). It is the role of a
jury to draw reasonable inferences or conclusions from
facts which the jury determines the evidence establishes.
Whether the jury, in determining guilt, relies upon direct
evidence, or upon reasonable inferences drawn from cir-
cumstantial evidence, the inquiry remains the same: there
must be in either case sufficient evidence from which any
rational juror could find a defendant guilty beyond a rea-
sonable doubt. See Jackson, 443 U.S. at 319.
Finally, we note that once a conspiracy is shown to
exist, the evidence sufficient to link another defendant to
it need not be overwhelming. United States v. Ciambrone,
787 F.2d 799, 806 (2d Cir.), cert. denied, 479 U.S. 1017
(1986). However, the evidence must show that the defen-
dant, even if unaware of the contours of the broader con-
spiracy, at least had knowledge that a common unlawful
endeavor existed, Nusraty, 867 F.2d at 763, and that the
defendant agreed to join that endeavor, United States y.
Delvecchio, 816 F.2d 859, 864 (2d Cir. 1987).
B. Badalamenti
The jury found Badalamenti guilty on counts one and
two. With regard to count one, the narcotics conspiracy
count, Badalamenti claims (1) that the evidence is insuffi-
cient to show that he agreed to ship narcotics into the
United States and (2) that even if he had so agreed, the evi-
dence is insufficient to support a conclusion that his activi-
ties and those of the other defendants formed a single
conspiracy. With regard to count two, the continuing
criminal enterprise count, Badalamenti claims that the
government failed to prove any of the elements of the
crime. We conclude that Badalamenti’s claims lack merit.
28a
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Opinion of United States Court of Appeals
1. Narcotics Conspiracy
The record contains sufficient evidence to support a
rational conclusion that Badalamenti imported narcotics
into the United States. Intercepted telephone calls show
that Badalamenti spoke to Mazzurco, an alleged buyer, on
more than one occasion about the shipment of various
commodities which he referred to as ‘‘shirts,”’ ‘‘parcels’’
and ‘‘containers.’’ Both the evidence showing that Maz-
zurco was a narcotics dealer (see infra Point VIII) and
Badalamenti’s refusal during cross-examination to explain
the nature of these calls strongly support the inference that
the calls concerned the importation of narcotics.
Evidence of two deliveries demonstrate that these tele-
phone calls were not just fruitless conversations, as Bada-
lamenti argues, but were discussions which led to
consummated deals. With regard to the first delivery, toll
records suggest that on April 30, 1983, defendant Pietro
Alfano, who Badalamenti concedes was his subordinate,
called Vitale and Palazzolo, two of Alfano’s assistants,
(see infra Points II(H), II(L)). The same day, Mazzurco
called defendant Giuseppe Ganci and told him that
‘*tomorrow I’m supposed to meet those people. . . [and]
bring them 95 cents.’’’ Ganci said: ‘‘I’ve got about 40.’’
Mazzurco testified at trial that ‘‘them’’ was a reference to
Alfano and others, and that ‘‘95 cents’’ was a reference to
$95,000. The day after Mazzurco called Ganci, a govern-
ment agent observed him leaving Ganci’s house carrying a
brown bag. Mazzurco testified that he gave Alfano
$40,000.
1 The quotations from intercepted telephone calls are translations
from Sicilian. Those words in these quotations which were originally
spoken in English are ualicized.
29a
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Opinion of United States Court of Appeals
Evidence suggests that a second delivery occurred on
February 4, 1984. That morning, Alfano phoned Maz-
zurco from a public telephone in Queens, New York. Dur-
ing the call, which the government intercepted, Alfano
arranged to meet Mazzurco in a restaurant two hours
later. That afternoon, presumably after Alfano and Maz-
zurco met, Giuseppe Lamberti called Mazzurco and asked
him, ‘‘{[D]id he bring you everything?’’ Mazzurco
answered in the affirmative. That evening, Alfano spoke
to defendant Salvatore Evola, another one of Badalamen-
ti’s subordinates (see discussion below), and told him: ‘‘I
left him everything.”’
Badalamenti’s telephone calls, along with evidence of
the two deliveries, in late April 1983 and early February
1984, are sufficient in the total context to justify a rational
inference that he conspired to import narcotics. Badala-
menti claims that even if he did conspire to import narcot-
ics, he was not part of a single conspiracy which involved
all the defendants named in the indictment. To support his
claim that he was not part of the overall conspiracy
charged in count one, Badalamenti argues that the govern-
ment failed to produce evidence linking him to the Sicilian
suppliers. Badalamenti’s claim is unpersuasive. First, the
evidence does suggest that Badalamenti was aware of the
Sicilian suppliers. On March 30, 1984, a government agent
observed Badalamenti’s acknowledged subordinate,
Alfano, meeting with Cangialosi, a representative of the
Sicilian suppliers. (See infra Point II(C).) But even assum-
ing arguendo that Badalamenti had no connection to the
Sicilian suppliers, his claim would still fail. A lack of evi-
dence connecting one defendant with others does not pre-
clude a determination that all the defendants were
co-conspirators; a single conspiracy may be found to link
them all so long as each defendant knew from the scope of
30a
Appendix A
Opinion of United States Court of Appeals
the operation that others were involved in the performance
of functions vital to the success of the endeavor. United
States v. Bynum, 485 F.2d 490, 496 (2d Cir. 1973), vacated
and remanded on other grounds, 417 U.S. 903 (1974). In
particular, suppliers unknown to each other may be co-
conspirators when ‘‘the scale of the operation permit([s]
the inference that the persons at a particular level must
have known that others were performing similar roles.’’
United States v. Miley, 513 F.2d 1191, 1207 (2d Cir.), cert.
denied, 423 U.S. 842 (1975). Here, a rational trier of fact
could have found, based on the evidence of the deliveries
in late April 1983 and early February 1984, discussed
above, that Badalamenti imported tens of thousands of
dollars worth of narcotics into the United States. Remarks
he made in telephone calls—e.g., a remark regarding ‘‘the
shirts of four years ago’’—suggest that he may have been
in the drug importing business for at least four or five
years. Viewing the evidence and construing all permissible
inferences in the light most favorable to the government,
as we must, Nersesian, 824 F.2d at 1302-03, we conclude
that there was sufficient evidence to support a rational
trier of fact’s conclusion that Badalamenti must have
known from the scale of the operation in which he was
involved that others were performing roles similar to his
Own as part of the same overal. operation. Therefore, we
hold that the evidence was sufficient for the jury to ration-
ally conclude beyond a reasonable doubt that Badalamenti
was part of a single conspiracy which involved’ other
defendants.
2. Continuing Criminal Enterprise
The record also contains sufficient evidence to support
Badalamenti’s conviction on the continuing criminal
ee taal
3la
Appendix A
Opinion of United States Court of Appeals
enterprise count. To prove Badalamenti guilty of having
engaged in a continuing criminal enterprise, the govern-
ment had the burden of establishing (1) that he committed
a narcotics-related felony, (2) that the felony was part of a
series of narcotics law violations, (3) that these violations
were undertaken by Badalamenti in concert with at least
five people he supervised or managed, and (4) that he
obtained substantial income from the narcotics law viola-
tions. 21 U.S.C. § 848; see United States v. Young, 745
F.2d 733, 746-48 (2d Cir. 1984), cert. denied, 470 U.S.
1084 (1985).
Badalamenti’s participation in the narcotics conspiracy
satisfies the first element of § 848, which requires a
narcotics-related felony violation. See Young, 745 F.2d at
751-52. The jury, in its special verdict, found that Badala-
menti made twenty-two telephone calls in violation of 21
U.S.C. § 843(b) over a nearly four-month-long period in
furtherance of the conspiracy. These calls were made to
Pietro Alfano, Mrs. Alfano, Giuseppe Lamberti, Salva-
tore Lamberti, Salvatore Mazzurco and Salvatore Evola.
They serve to satisfy the second element, which requires a
series of violations. See Young, 745 F.2d at 755.
Relying on Judge Newman’s concurrence in Young, 745
F.2d at 767 n.1, Badalamenti argues that these calls, which
he claims all concerned a single shipment of narcotics,
were insufficiently distinct to constitute a series of Viola-
tions. This argument is meritless. In his concurrence,
Judge Newman merely suggested that a phone call to
arrange a drug sale and the consummation of the sale
‘moments later’’ did not constitute a series of violations.
Id. Here, Badalamenti made twenty-two telephone calls
and they spanned a nearly four-month-long period. We
————————
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Opinion of United States Court of Appeals
conclude that the calls were sufficiently distinct to consti-
tute a series of violations.
It is also clear from the evidence that, as part of his
criminal activity, Badalamenti supervised or managed at
least five people, thus satisfying the third element of
§ 848. Badalamenti concedes that he directed the activities
of Alfano. Through Alfano, Badalamenti managed the
narcotics-related activities of Palazzolo and Vitale. (See
infra Points II(H), II(L).)
The fourth person Badalamenti supervised was Evola.
Evola admitted to an FBI agent that on one occasion he
had sold a kilogram of cocaine. A search of Evola’s resi-
dence revealed a piece of paper containing Badalamenti’s
telephone number written in code. His passport shows that
he travelled to Brazil on the same date that Alfano did.
The jury could have reasonably concluded that the pur-
pose of this trip was to confer with Badalamenti. Figures
found on a slip of paper Evola had in his possession
matched figures found in a notebook which belonged to
Alfano, strongly suggesting that Evola and Alfaro worked
as a team. In light of the evidence that Evola was in com-
munication with Badalamenti, and appeared to work with
Alfano, who was Badalamenti’s subordinate, we hold that
the record sufficiently supports a reasonable finding that
Badalamenti managed the activities of Evola.
The fifth person Badalamenti supervised was defendant
Vincenzo Randazzo. On one occasion, Randazzo called
Mazzurco from Brazil and had a discussion with him
about various items and their prices. During the conversa-
tion, Randazzo offered to send Mazzurco samples. Ran-
dazzo referred to a third person as the actual seller of the
items, implying that he worked for this third party. Sev-
eral days before this telephone call occurred, Mazzurco,
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Opinion of United States Court of Appeals
standing on a street corner in Queens, New York, handed
a brown paper bag containing $20,000 in cash to defen-
dant Faro Lupo. Randazzo was with Lupo at the time. A
toll record indicates that the morning after this transaction
occurred, a brief telephone call was made from Alfano’s
home in Illinois to the New York City hotel in which Lupo
was registered. Randazzo was with Lupo when Lupo regis-
tered at the hotel. On another occasion (see infra Point
II(H)), Randazzo, along with Alfano, Lupo, and Palaz-
zolo, met Mazzurco in a Queens restaurant. Randazzo’s
dealings with Mazzurco, the buyer of the narcotics Bada-
lamenti imported; his connection to Alfano, Badalamen-
ti’s subordinate; his connection to Brazil, the nation from
which Badalamenti operated; and his references to a third
party for whom he appeared to work, considered together,
provide sufficient evidence to support a rational finding
that Badalamenti managed the activities of Randazzo.
The last element of § 848 which the government had to
prove was that Badalamenti derived substantial income
from his narcotics activities. The statute does not prescribe
the minimum amount of income that may be considered
substantial, but we have held that as little as $2,000 may be
sufficient. United States v. Losada, 674 F.2d 167, 173 (2d
Cir.), cert. denied, 457 U.S. 1125 (1982). Here, evidence
of the late April 1983 and early February 1984 deliveries,
discussed above, allows the conclusion to be drawn that
Baladamenti dealt in tens of thousands of dollars worth of
narcotics. Badalamenti concedes that on one occasion,
approximately two months after the February 4, 1984
delivery, Alfano brought him $10,000. Clearly, one may
reasonably conclude from this evidence that Badalamenti
derived substantial income from his narcotics activities.
34a
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Opinion of United States Court of Appeals
In sum, we believe that the jury had before it sufficient
evidence to rationally conclude that Badalamenti engaged
in a continuing criminal enterprise, and that he was a
member of the single narcotics conspiracy alleged in the
indictment.-
C. Cangialosi
Cangialosi contends that the record contains insuffi-
cient evidence to support the conclusion that he knowingly
participated in the charged conspiracy. We do not agree.
The record supports the government’s theory that Can-
gialosi’s role in the conspiracy was to help plan for the
importation of narcotics by facilitating communication
between his boss, the Sicilian narcotics supplier Giuseppe
Soresi, and the New York buyers, Mazzurco and Giuseppe
and Salvatere Lamberti. According to the testimony of
agents who observed the meetings, on March 15, 1984,
Cangialosi arrived in the United States, and was met at
John F. Kennedy Airport in New York City by Mazzurco
and Salvatore Lamberti. Over the next few days, Can-
gialosi met with Mazzurco, the Lambertis, and others.
Two of these meetings occurred in parking lots at night.
The evidence discloses that, in addition to meeting with
and presumably delivering messages to the New York buy-
ers, Cangialosi attempted to arrange for the buyers to
receive telephone calls from his boss in Sicily. On one
occasion shortly after he arrived in the United States, Can-
gialosi was observed waiting by a public telephone on the
side of a highway in Long Island, New York, with Maz-
zurco and Salvatore Lamberti. On another occasion, on
the side of the same highway, Cangialosi spent approxi-
mately one-half hour near a public telephone with
Giuseppe Lamberti. In intercepted telephone calls, Maz-
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zurco discussed with the Lambertis the fact that ‘‘the engi-
neer’’ had not called. On March 20, 1984, Soresi,
apparently from Sicily, did place a call which came
through a public telephone on the side of the highway in
Long Island and he spoke to Mazzurco and Salvatore
Lamberti. On the morning of the day Cangialosi went to
Kennedy Airport to return to Sicily, a government agent
saw Mazzurco in a car with Cangialosi. Mazzurco
appeared to be writing down the numbers of public tele-
phones on the side of the highway in Long Island. That
afternoon, the agent who arrested Cangialosi at the air-
port seized from him a piece of paper with the numbers of
various public telephones on it. Some of these telephones
were located in the same area on the side of the highway
where Mazzurco had appeared to copy numbers.
Two intercepted calls in particular support the conclu-
sion that Cangialosi knowingly participated in the conspir-
acy. In the March 20 call, Salvatore Lamberti, speaking to
Soresi on a public telephone in Long Island, said that ‘‘the
one who came here will return. . . . He will come over
there. And he will come to tell you the things with more
preciseness.’’ Cangialosi does not dispute that Soresi was
in Sicily during this telephone call. The jury could reason-
ably have concluded, as the government argues, that Lam-
berti meant that Cangialosi would inform Soresi of the _
New York buyers’ plans upon his return to Sicily. Two
days before his arrest, Cangialosi, who was planning to
return to Sicily, was asked by a person he identified as
“‘Uncle Pino’’ whether he had “‘prepared the dirt for the
tomatoes?’’ Cangialosi replied, ‘‘Almost.’’ When asked
**Will this thing be organized?’’, he answered, ‘‘Yes, yes.”’
The jury could reasonably have concluded that Cangialosi
was informing his relative that he was making arrange-
——
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ments for the New York buyers to receive shipments of
narcotics from Sicily.
Cangialosi’s meetings with Mazzurco, Salvatore Lam-
berti and others, especially in parking lots at night; his
clear participation in their efforts to receive telephone calls
from Soresi in Sicily; and both Salvatore Lamberti’s refer-
ence to and his own oblique acknowledgment of his role as
a go-between rationally support the conclusion that Can-
gialosi knowingly participated in the charged conspiracy.
D. Casamento
Casamento contends that the record contains insuffi-
cient evidence to support the conclusion that he partici-
pated in the charged conspiracy. In our view, ample
evidence supports the conclusion that, as a member of the
conspiracy, Casamento purchased narcotics from defen-
dant Giuseppe Ganci.
To begin with, the record clearly demonstrates that
Ganci was a narcotics dealer. (See infra Points VIII, XVI.)
Indeed, Casamento concedes that Ganci supplied heroin
to defendant Benito Zito. Intercepted telephone messages
reveal that, during the course of a six-month period in
1983, Casamento communicated with Ganci through
brief, apparently coded messages using the same phirases
Ganci used in other drug-related conversations, and,
according to the testimony of agents, he was observed
meeting with Ganci several times—in Ganci’s car, in a
park, in a storé—for meetings which lasted up to twenty
minutes. Given Ganci’s role as a narcotics supplier, and
the suspicious nature of Casamento’s dealings with him,
there was sufficient evidence from which the jury could
reasonably conclude that Casamento engaged in narcotics
transactions with Ganci.
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A review of the evidence regarding one particular series
of calls and meetings illustrates the range of evidence pre-
sented against Casamento. On August 6, 1983, Casamento
called Ganci at home in Queens, New York, and asked
him if they could meet the next day for five minutes. Ganci
replied that ‘‘[i]f you need, even now.’’ Casamento said he
did not want to meet just then and they arranged to meet
the next day. The next morning, Ganci was observed meet-
ing Casamento at a store in Brooklyn, New York. After
about twenty minutes in the store, Ganci and Casamento
left, carrying boxes. They put the boxes in Ganci’s car.
Ganci then drove away alone.
Shortly after noon, Ganci called Mazzurco, his associ-
ate in narcotics dealing (see infra Point VIII), and told him
that he needed ‘‘three of those checks.’’ Later that after-
noon, Mazzurco met Ganci and handed him a bag. After
receiving the bag from Mazzurco, Ganci was observed
driving home with it and carrying it into his house.
That night, shortly after ten o’clock, Casamento called
Ganci’s home and told Ganci’s wife that he was coming
over. A few minutes after eleven o’clock, Casamento
arrived near Ganci’s house. Casamento was observed
looking around in every direction as he walked from his
car to Ganci’s house. Less than four minutes after entering
Ganci’s house, Casamento left. After leaving Ganci’s
house, according to the testimony of an agent who fol-
lowed him, Casamento appeared to detect that he was
being followed and began to drive in an evasive manner.
This series of events allows the reasonable inference to
be drawn that Casamento purchased narcotics from
Ganci, a dealer in narcotics. Clearly, the conclusion rea-
sonably could be drawn that Casamento called Ganci to
obtain a certain item and his short stay in Ganci’s house
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suggests that he visited Ganci just to obtain it. The hour of
his visit, the manner in which Casamento entered Ganci’s
house, and his evasive driving thereafter, in context, allow
for inferences that illegal behavior occurred. The jury rea-
sonably could infer, as the government argues, that the
boxes Ganci received when he met Casamento at the store
contained cash as payment for the item Ganci would later
give Casamento. Similarly, it reasonably could be inferred
by the jury that the bag Mazzurco delivered to Ganci con-
tained narcotics. We conclude that the jury acted reasona-
bly in finding Casamento to have been a member of the
narcotics conspiracy.
E. Castronovo
Castronovo was convicted on count one (conspiracy),
count ten (continuing criminal enterprise), counts twelve,
fourteen and fifteen (money laundering), and count six-
teen (racketeering). On appeal, he challenges the suffi-
ciency of the evidence against him only with regard to
count ten. Castronovo claims that the government pre-
sented insufficient evidence to prove that, in the course of
committing a series of narcotics violations, he organized,
supervised or managed at least five individuals, in viola-
tion of 21 U.S.C. § 848. We agree with Castronovo and
therefore reverse his conviction on count ten.
The jury in its special verdicts found that Castronovo
supervised six individuals: Salvatore Amendolito, Philip
Matassa, and Antonino Rotolo, and defendants Olivero
Tognoli, Salvatore Miniati and Adriano Corti. We con-
clude that insufficient evidence exists to demonstrate that
Castronovo supervised Tognoli and Miniati, thus leaving
only four who could have been supervised or managed.
—_—...___,_... ieee
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Castronovo, who owned a restaurant in New Jersey,
does not dispute that he participated in the conspiracy’s
money laundering scheme. Moreover, he concedes that
Tognoli, a wealthy Italian industrialist, and Méiniati,
Tognoli’s agent, were also participants in the scheme. In
June 1980, Miniati, acting on behalf of Tognoli, hired
Amendolito, an Italian who was resident in the United
States, to transfer money from New York to Switzerland.
Miniati instructed Amendolito to meet with Castronovo.
Amendolito met with Castronovo, and thereafter Amen-
dolito began a series of visits to Castronovo in New Jersey,
during which Amendolito received large amounts of cash
from Castronovo. Castronovo does not dispute that this
money eventually was sent to Tognoli in Switzerland.
While the evidence demonstrates that Castronovo and
Tognoli were part of the same conspiracy, the government
points to no evidence which indicates that Castronovo was
Tognoli’s superior in the conspiracy’s hierarchy.
Nowhere, for example, does the record show that Cas-
tronovo ever gave Tognoli orders or even that Castronovo
gave orders to someone who in turn managed Tognoli’s
activities. Cf. United States v. Cruz, 785 F.2d 399, 407 (2d
Cir. 1986); United States v. Mannino, 635 F.2d 110, 116-
17 (2d Cir. 1980).
To support its claim that Castronovo managed Tognoli,
the government argues that ‘‘it was Castronovo who com-
municated the need for a pick-up’’ of accumulated cash to
European members of the money laundering scheme. Cas-
tronovo’s communicating the need for a pick-up of cash
does not indicate that he was directing the activities of oth-
ers; it merely shows that he was carrying out the role of a
communicator in the conspiracy.
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Several pieces of evidence suggest that Tognoli was at
least Castronovo’s equal in the conspiracy’s hierarchy.
First, on one occasion, when Tognoli and Matassa visited
Castronovo’s restaurant, Matassa testified that he heard
Tognoli ‘‘raise his voice in agitation’’ while speaking to
Castronovo. This incident suggests that Tognoli was not
Castronovo’s subordinate, since subordinates usually do
not raise their voices in agitation while conversing with a
superior.
On another occasion, Amendolito travelled to Montreal
to meet with Tognoli, upon Tognoli’s request. Amendo-
lito testified that Tognoli ‘‘recommended’’ that Amendo-
lito not inform Castronovo about the meeting. At
LaGuardia Airport in New York City, Amendolito ran
into Castronovo, who was also travelling to meet Tognoli.
Amendolito testified that both he and Castronovo were
embarrassed upon seeing each other, since they were each
unaware that the other was flying to Montreal to meet
Tognoli. Like the meeting at Castronovo’s restaurant, this
incident suggests that Tognoli was not Castronovo’s sub-
Ordinate. It seems to us that, assessing this evidence, the
reasonable inference to be drawn was that if Castronovo
were in charge he would have been informed by Tognoli
that Amendolito was attending the Montreal meeting.
Further, Amendolito testified that Castronovo ‘‘was just a
delivery man.’’ This remark further undermines the gov-
ernment’s claim that Castronovo had a management role
in the conspiracy.
In sum, we conclude that the record evidence is insuffi-
cient to establish that Castronovo supervised, organized,
or managed the activities of Tognoli.
The government presents no evidence to show that Cas-
tronovo ever had any direct interactions with Miniati. Its
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argument that Castronovo supervised Miniati hinges on
Miniati’s role as Tognoli’s agent. Since we have concluded
that the evidence is insufficient to establish that Cas-
tronovo supervised Tognoli, we conclude that Miniati’s
role as Tognoli’s agent does not suffice to establish that
Miniati was supervised by Castronovo.
We conclude that the record contains insufficient evi-
dence to show that Castronovo supervised two of the six
individuals the jury found Castronovo to have supervised.
Therefore, since the record lacks sufficient evidence to
support the conclusion that Castronovo supervised the
requisite five persons, we reverse Castronovo’s conviction
on the continuing criminal enterprise count.
F. Greco
The jury convicted Salvatore Greco on counts one (con-
spiracy), twelve and fourteen (money laundering), and six-
teen (racketeering). On appeal, Greco challenges the
sufficiency of the evidence only with regard to the money
laundering and racketeering convictions. We find Greco’s
challenge to be without merit.
1. Money Laundering Counts
There is substantial record evidence from which the jury
could rationally conclude beyond a reasonable doubt that
Greco participated in the money laundering operation.
Greco concedes ‘‘that there is good evidence’’ that defen-
dants Filippo Salamone, Gaetano Mazzara and appellant
Frank Castronovo were involved in money laundering,
and that he associated with these three men. In March
1983, Filippo Salamone was responsible for shipping hun-
dreds of thousands of dollars in cash to Switzerland. (See
infra Point II(J).) The evidence suggests that by mid-June
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1983, Filippo Salamone had sold his house and departed
from the United States. An intercepted call to Salamone’s
former house after he departed reveals that Greco was
occupying the house. Moreover, viewing the evidence in
the light most favorable to the government, we believe it
would have been reasonable for the jury to conclude that
Greco was aware of Salamone’s apparent departure. The
government argues that Greco assumed Salamone’s
money laundering duties after Salamone’s departure.
Greco’s presence in Salamone’s former house, his knowl-
edge of Salamone’s departure, and Greco’s subsequent
activities, discussed below, support the government’s con-
tention.
A government agent testified that, on July 5, 1983, he
saw Greco place two boxes in his car and drive to Cas-
tronovo’s residence in New Jersey. On the morning of July
7, 1983, Ganci, the narcotics distributor (see infra Points
Il(D), VIII, XVI), was observed delivering two packages
to Mazzara. Late that night, Mazzara met Greco in New
Jersey. Greco was then observed driving to Brooklyn,
where, upon meeting an unidentified individual, he took a
box out of his car. Given Greco’s concession thai there
exists ‘‘good evidence’ of Mazzara’s and Castronovo’s
participation in money laundering, and considering this in
conjunction with the evidence recited below, we believe
the jury could reasonably have concluded that on July 5
and 7 Greco, as part of the money laundering operation,
delivered cash to Castronovo and an unidentified partici-
pant on those respective dates.
Another meeting which the jury could reasonably have
concluded involved a delivery of cash by Greco occurred
on August 24, 1983. Testimony based on surveillance
revealed that on that day Greco travelled from New Jersey
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Opinion of United States Court of Appeals
to New York and delivered a package to the pizzeria of
defendant Rosario Dispenza in lower Manhattan. Before
entering the pizzeria with the package, Greco looked up
and down the street, and waited for a short time. A subse-
quent search of Dispenza’s residence in Queens, New
York, produced approximately $398,000 in cash. Dispenza
also had a menu from Greco’s pizzeria in his house, with
the pizzeria’s address and telephone number on it. On
April 9, 1984, when he was questioned by a government
agent, Greco denied ever having taken a package to
Dispenza’s pizzeria.
Further evidence to support Greco’s money laundering
activity was discovered on April 9, 1984, when govern-
ment agents searched his home and car. The search
revealed that in his kitchen Greco had empty money wrap-
pers, which in total were designed to contain approxi-
mately $169,800. Greco also had $13,000 in cash in his car.
A search of Greco’s pizzeria that same day revealed a
loaded Uzi rifle, a silencer compatible with the rifle, a
loaded semi-automatic pistol, a Luger pistol and several
magazines of ammunition.
We conclude that, when viewed in the light most favor-
able to the government, Greco’s close association with
Mazzara, Castronovo, and especially Filippo Salamone;
evidence that he placed two packages in his car and drove
to Castronovo’s residence; his delivery of a package to
Dispenza’s pizzeria; his apparent delivery of a package to
an unidentified individual; and the evidence of money,
money wrappers, and guns ia his home, considered
together, provide sufficient evidence to rationally support
his convictions on the money laundering counts.
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2. Racketeering Count
In attacking his RICO conviction, Greco claims that the
government presented insufficient evidence to prove that
he committed two racketeering acts. See H.J. Inc. v.
Northwestern Bell Tel. Co., 109 S. Ct. 2893, 2899 (1989)
(in a RICO prosecution, government must prove defen-
dant committed at least two predicate acts); United States
v. Benevento, 836 F.2d 60, 72 (2d Cir. 1987), cert. denied,
108 S. Ct. 2035 (1988). Greco does not dispute that his
Participation in the narcotics conspiracy properly served
as one racketeering act. See id. Rather, he argues that the
government presented insufficient evidence to establish
that, as a second racketeering act, he violated 18 U.S.C.
§ 1952(a). In the indictment, it is alleged that Greco’s
delivery on August 24, 1983, of a package to Dispenza’s
pizzeria constituted a violation of § 1952. Greco argues
that the government failed to prove that this delivery con-
stituted such a violation.
Section 1952(a)(3) prohibits an individual from travel-
ling in interstate commerce with the intent to ‘‘promote’’
an ‘‘unlawful activity’’ and thereafter performing an act
which promotes such an activity. Here, we conciude that
the jury could reasonably have inferred that Greco’s trip
from New Jersey to New York on August 24, 1983 to
make a delivery to Dispenza’s pizzeria was part of the
enterprise’s money laundering operation. We base this
conclusion on the evidence demonstrating Greco’s role in
the money laundering enterprise, discussed above; the cau-
tious way in which Greco behaved before entering the piz-
zeria; the huge amount of cash found in Dispenza’s home;
and Greco’s denial that he delivered the above-described
package, which an agent testified he saw him deliver. Since
sufficient evidence was presented from which a jury could
aia
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Opinion of United States Court of Appeals
reasonably conclude that the interstate delivery occurred
and that it was part of the money laundering operation, a
reasonable conclusion can be drawn that Greco travelled
to Dispenza’s pizzeria with the intent to promote the nar-
cotics enterprise and that he thereafter did promote it by
delivering the package. Having determined that-the evi-
dence provides a sufficient basis for the jury to rationally
conclude that Greco committed two racketeering acts, we
find his challenge to the RICO conviction to be without
merit.
G. Ligammari
The record contains sufficient evidence to support
Ligammari’s convictions on counts one (conspiracy) and
sixteen (racketeering). The government alleges that, as a
member of the conspiracy, Ligammari agreed to help fund
the narcotics purchases of the New York group, a group
which included Mazzurco, Ganci, and Giuseppe Lamberti.
(See supra Points II(B), I1(C), I1(D), infra Points VIII,
XVI). Two series of events in particular support a finding
that Ligammari did join the conspiracy.
Intercepted telephone conversations disclose that, on
February 13, 1984, Alfano, who sold imported narcotics
to the New York group for Badalamenti (see supra Point
II(B), infra Points II(H), II(L)), made airline reservations
to fly from Chicago to New York the next morning. That
night, Alfano told Mazzurco he would be arriving the next
day and that Mazzurco should ‘‘[p]ut together some of
those. . . .’’ In the circumstances herein, the jury could
reasonably have inferred that Alfano was requesting that
Mazzurco gather money to pay for a narcotics shipment.
Early on the morning of February 14, Giuseppe Lamberti
called Ligammari, spoke of ‘‘that guy who is going to
— ————
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Opinion of United States Court of Appeals
bring the plant,’’ and asked Ligammari to meet that morn-
ing with certain unnamed persons. Less than two hours
later, Ligammari, according to the testimony of an agent,
met with Mazzurco, Ganci, Catalano and Giuseppe Lam-
berti in New York City. The jury could reasonably have
inferred that the participants at this meeting met to discuss
paying Alfano.
The second series of events began on February 23, 1984.
On that day, in a coded telephone conversation between
Mazzurco and Alfano about how much money would be
paid to Alfano for delivered iterns, Mazzurco said ‘‘let me
talk to those guys.’’ That night, Mazzurco met with
Ganci, Catalano and Ligammari at Ganci’s house. Just
past midnight, Mazzurco called Alfano and told him that
he would receive some payment now but that Mazzurco
did not know when more payments would be made. Maz-
zurco said: ‘‘If they’re taking their time, what can I tell
you?’’ The jury could reasonably have inferred that Maz-
zurco was referring to Ligammari and the others. Alfano
urged Mazzurco to ‘“‘[glive them a little push,’’ and added
that ‘‘[t]hese people shouldn’t be doing this,’’ to which
Mazzurco replied, ‘‘Pietro, I’m just telling you, I’m
reporting to you what they told me.’’ Intercepted calls
reveal that, the very next day, on February 24, Mazzurco
spoke to Ligammari’s son and told him to tell his father
that ‘‘those people want 10.’’ The son responded: ‘‘I don’t
think he’ll be too happy about it.’’ Mazzurco replied: ‘‘I
know he wasn’t too happy last night.’’ The jury could rea-
sonably have inferred that Mazzurco was referring to the
meeting at Ganci’s house.
Viewed in the light most favorable to the government,
the meetings and telephone calls of February 13-14 and
February 23-24 provide sufficient evidence to rationally
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Opinion of United States Court of Appeals
support the jury’s conclusion that Ligammari was guilty
of counts one and sixteen.
H. Palazzolo
The record contains sufficient evidence to support
Palazzolo’s convictions on counts one (conspiracy) and
sixteen (racketeering). The jury could reasonably have
relied upon evidence of two incidents to conclude that he
knowingly participated in the narcotics conspiracy by act-
ing as an assistant to Alfano, who was one of Badalamen-
ti’s representatives in the United States. (See supra Point
I1(B).)
First, on September 26, 1983, Palazzolo, along with
Alfano and two other alleged subordinates of
Badalamenti—defendants Vincenzo Randazzo and Faro
Lupo—was observed meeting with Mazzurco in a restau-
rant in Queens, New York. Given Mazzurco’s role as a
buyer of narcotics (see supra Point II(B), infra Point
VIII), the jury could reasonably have inferred that the
meeting concerned narcotics trafficking. Further, the jury
could reasonably have concluded from evidence concern-
ing the rental car used that, after the meeting, Palazzolo
drove with Alfano back to the Midwest.
The second incident was Alfano’s delivery to Mazzurco
on February 4, 1984. (See supra Point II(B).) The evidence
suggests that Palazzolo drove with Alfano from Ohio to
Queens, New York, to make the delivery. After the deliv-
ery, in a February 7 telephone call to Palazzolo’s pizzeria
in Wisconsin, Badalamenti spoke to Alfano in code about
the delivery. Just over an hour later, Alfano’s wife called
the pizzeria, and the jury could reasonably have found
from Palazzolo’s coded discussion with her that he was
icieaiimiaissaiiaianaiaa iil
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well aware of the content and significance of the
Badalamenti-Alfano conversation.
One further bit of evidence against Palazzolo was the
unloaded gun which he concedes he kept in his house.
Though there is no claim that possession of this gun was
illegal, it may nonetheless be considered probative of
Palazzolo’s involvement in the narcotics conspiracy, if the
jury chose to so view it. See United States v. Mourad, 729
F.2d 195, 201 (2d Cir.) (gun found in defendant’s home is
probative of narcotics conspiracy), cert. denied, 469 U.S.
855 (1984).
I. Polizzi
Polizzi argues that the record contains insufficient evi-
dence to support his convictions on counts one (conspir-
acy) and sixteen (racketeering). We do not agree. As to
count one, surveillance evidence and taped telephone con-
versations provide a rational basis from which a fact-
finder could conclude that Polizzi was a member of the
narcotics conspiracy, who helped Ganci arrange to receive
narcotics-related telephone calls from Sicily, and who pro-
vided funds to help Ganci and Mazzurco purchase narcot-
ics. (See infra Point XVI.)
In attacking his RICO conviction, Polizzi argues that
the government failed to establish that he committed two
racketeering acts. This argument lacks merit. Once the
jury found Polizzi had participated in the narcotics con-
spiracy charged, it could properly find that such participa-
tion served as one of the two predicate acts required for
Polizzi’s conviction on count sixteen. See United States v.
Benevento, 836 F.2d 60, 72 (2d Cir. 1987) (‘‘Conspiracies
to violate the narcotics laws . . . are properly chargeable
as predicate acts.’’), cert. denied, 108 S. Ct. 2035 (1988).
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The second predicate act commenced with a telephone call
between Ganci and Polizzi on March 13, 1983, in which
Ganci reported to Polizzi that he (Ganci) was going to
receive a call from a public telephone near Polizzi’s home.
Since Polizzi was involved in arranging these overseas
narcotics-related calls, his speaking on the telephone with
Ganci about the arrangements for such a call constitutes
use of a facility in interstate commerce with the intent to
facilitate the carrying on of an unlawful activity. Polizzi
met Ganci at a public telephone in New Jersey at least once
after March 13, 1983, to wit, on April 28, 1983. (See infra
Point XVI.) This meeting with Ganci allowed the jury to
reasonably conclude that Polizzi, after March 13, commit-
ted a further act to facilitate the conspiracy. Polizzi’s
March 13 use of the telephone and his meeting with Ganci
thereafter could be found to constitute a violation of 18
U.S.C. § 1952(a)(3). Thus, a trier of fact could reasonably
have found that Polizzi committed two predicate acts, as
18 U.S.C. § 1962 requires, hence, we conclude that Poliz-
zi’s conviction on count sixteen is sufficiently supported
by record evidence and must be sustained.
J. Salamone
Appellant Salamone, who was acquitted on counts one
and sixteen, claims that the record contains insufficient
evidence to support his convictions om count twelve (con-
spiring to transport money out of the United States with-
out filing required currency reports), count thirteen (the
making of false statements to the Internal Revenue Service
with regard to various cash deposits or aiding and abetting
same), and count fourteen (the failure to file required cur-
rency reports or aiding and abetting same). The evidence,
discussed below, indicates that Salamone assisted in the
operation of the money laundering scheme, the existence
bes
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of which he does not dispute. We conclude that the evi-
dence was sufficient to permit a jury to rationally conclude
that Salamone conspired to violate, and aided and abetted
the violation of, the various currency reporting statutes on
which counts twelve, thirteen and fourteen are based.
Salamone’s main involvement in the money laundering
operation was to change small denominations of cash to
larger denominations, a task carried out at his request by
two waitresses in his pizzeria and by a sales representative
of a pizza supply company with whom Salamone had con-
tact; each of these persons so testified. Salamone’s orders
to the waitresses not to change over $10,000 in any one
bank so as to avoid having to sign any documents and to
leave the bank if questioned about the purpose of their
visit provided a sufficient basis for the jury to reasonably
conclude that Salamone knew he was involved in an illegal
activity.
The evidence reveals that Salamone’s money changing
activities occurred in the summer and fall of 1982 and were
part of a broader money laundering operation; this is
made evident by Salamone’s contact with his brother,
defendant Filippo Salamone (‘‘Filippo’’). The jury could
reasonably have found that Filippo was a major partici-
pant in the money laundering operation; the record indi-
cates that in March 1983 Filippo sent $400,000 in cash to
Switzerland, to defendant Franco Della Torre, whom
Salamone describes as ‘‘the kingpin in all the financial
transactions involved in the heroin scheme.’’ The sales
representative who changed money for him testified that,
at one point, Salamone told him that he (the representa-
tive) could give the large bills he received from the bank to
Filippo if Salamone was not at the pizzeria. Indeed, at one
point Filippo himself asked the sales representative when
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he (the representative) would be changing money. The jury
could reasonably infer from Salamone’s willingness to
have the cash go to Filippo and Filippo’s own questioning
of the sales representative that Filippo was an interested
party to the cash exchanging activity.
On another occasion, according to one of the waitress
witnesses, during the summer of 1982, Filippo joined Sala-
mone and four visitors from Switzerland for dinner at the
pizzeria. The record evidence also shows that Salamone
travelled to Switzerland, and that he met with Filippo
while there.
Salamone’s money exchanging activities, and his con-
nections with Filippo and with people from Switzerland
provide sufficient evidence from which a fact-finder could
reasonably couiclude that Salamone assisted in the moncy
laundering operation charged, i.e., knew of the scheme
and participated therein. We find there is sufficient evi-
dence to support his convictions.
K. Trupiano
Trupiano contends that the record contains insufficient
evidence to support the conclusion that he was a member
of the narcotics ring. We agree and therefore reverse his
convictions on counts one (conspiracy) and sixteen (racke-
teering).
In support of Trupiano’s convictions, the government
argues that he was aware of and participated in the con-
spiracy. Pointedly, the government identifies an inter-
cepted telephone conversation in which Alfano asked
Trupiano whether he would ‘“‘like to take a walk?’’ Viewed
in the light most favorable to the government, Alfano
appears to have been asking Trupiano whether he would
act as a drug courier. In response to Alfano’s request, Tru-
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piano implied that he might go on the requested trip for
Alfano if, in Trupiano’s words, Alfano could send his
‘‘daughter or someone to stay here with my wife.’’ At the
end of the conversation, however, Trupiano told Alfano
that he would not go on the trip. Finally, the government
points to the fact that when he was arrested Trupiano had
an unloaded gun in his possession.
Even viewed in the light most favorable to the govern-
ment, we conclude that the evidence was insufficient to
establish beyond a reasonable doubt that Trupiano was a
member of the conspiracy. An individual is not a conspira-
tor merely because he is aware of a conspiracy and associ-
ates with its members. See United States v. Nusraty, 867
F.2d 759, 763 (2d Cir. 1989); United States v. Young, 745
F.2d 733, 764 (2d Cir. 1984), cert. denied, 470 U.S. 1084
(1985); United States v. Garcia-Duarte, 718 F.2d 42, 46
(2d Cir. 1983). To be a conspirator, an individual must
agree to participate in the conspiracy. United States v.
Delvecchio, 816 F.2d 859, 864 (2d Cir. 1987); United
States v. Cepeda, 768 F.2d 1515, 1516 (2d Cir. 1985).
Here, the record contains insufficient evidence that Tru-
piano agreed to participate in the charged conspiracy.
While, during his intercepted conversation with Alfano,
Trupiano implied that he might agree to act as a courier if
Alfano met his conditions, he ultimately told Alfano that
he would not agree to go on the ‘‘walk.’’ Moreover, the
fact that Trupiano possessed an unloaded gun when
arrested, without more, does not prove that he was a con-
spirator. See Young, 745 F.2d at 764 (evidence against
defendant insufficient on narcotics conspiracy charge
despite fact that an M-16 rifle was found concealed in her
apartment).
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Since the record contains insufficient evidence that Tru-
piano agreed to join the conspiracy, his conviction on
count one must be reversed. Trupiano’s conviction on
count sixteen must also fall, since, as the discussion above
indicates, there is insufficient evidence to support the con-
clusion that Trupiano participated in the drug trafficking
enterprise charged.
L. Vitale
Vitale claims that the record contains insufficient evi-
dence to support his convictions on counts one (conspir-
acy) and sixteen (racketeering). Specificaily, he argues that
the record contains insufficient evidence to show (1) that
telephone conversations he had with defendant Pietro
Alfano concerned narcotics; (2) that he knowingly agreed
to participate in the narcotics conspiracy; (3) that he par-
ticipated in the conspiracy charged; and (4) if he did agree
to facilitate a narcotics transaction, that he had sufficient
knowledge of the overall conspiracy to be considered a
member of it.
The record concerning Vitale includes the following evi-
dence. During the morning of March 8, 1984, Alfano
called Vitale and asked him, ‘‘[A]re you going to take a
walk?’’ When Vitale asked where, Alfano said, ‘‘Where
we had gone that time. . . . From there to the big city.’’
Vitale asked, ‘‘Where we went on the last trip?’’ and
Alfano answered ‘‘Yes.’’ In discussing the trip Alfano
seemed to be proposing, the two discussed the possibility
of Vitale flying. Alfano stated that if Vitale drove, the trip
would take two days. The conversation ended with Alfano
telling Vitale to think about taking the trip.
About forty minutes later, Vitale called Alfano and
said, ‘*Tell me what I should do. I’m ready to do whatever
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you say.’’ Later in the conversation he said, ‘‘When
should I leave?’’ Alfano told him, ‘‘As soon as I call, you
leave.’’ ‘‘Okay,’’ Vitale responded. The next day in
another telephone conversation, Alfano said to Vitale,
‘“‘'Tjhis thing has just come up. . . they were supposed to
go. Remember those guys from last time?’’ Vitale
responded, ‘‘ Yeah.”’
The government argues that in ca!ling Vitale on March
8, Alfano was seeking to enlist his services as a courier to
carry cocaine from Florida to New York. The evidence
strongly supports the government’s contention that the
telephone conversations concerned narcotics and a fact-
finder could rationally so find. Vitale concedes that
Alfano participated in the narcotics conspiracy charged,
and the record contains sufficient evidence to establish
that Badalamenti imported narcotics into the United
States. (See supra Point II(B).) On February 8, 1984,
according to intercepted telephone calls, Badalamenti told
Mazzurco to expect a shipment of ‘‘parcels’’ to Fort
Lauderdale, Florida. Then, on February 28, Badalamenti
told Alfano that more than one driver would be needed.
From this evidence, it was reasonable for the jury to infer
that the trip Alfano proposed to Vitale was one to pick up
a narcotics shipment; also, the coded nature of the tele-
phone conversations in the overall context of this case sup-
ports the inference that the conversations concerned illegal
activity involving narcotics.
From the conversations themselves, it is clearly infer-
able that Vitale knew the purpose of the trip Alfano was
proposing and that he agreed to go on the trip. Vitale’s
reference to a prior trip, his memory of ‘‘those guys from
last time,’’ and his failure to ask about the purpose of the
proposed trip while discussing the prospect of taking it, all
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strongly suggest that Vitale knew what Alfano wanted him
to do and a jury could rationally so find. Moreover,
Vitale’s saying ‘‘I’m ready to do whatever you say,’’ and
his asking when he should leave could sufficiently estab-
lish that he agreed to perform the service Alfano
requested. Once Vitale agreed to take the trip he became a
member of the conspiracy. That Vitale may never have
taken the trip has no bearing on whether he joined the con-
spiracy charged. See United States v. Delvecchio, 816 F.2d
859, 864 (2d Cir. 1987) (‘‘no overt act need be alleged or
proven as a necessary element of conspiracy under 21
U.S.C. § 846.’’).
Finally, we reject Vitale’s argument that he had insuffi-
cient knowledge of the conspiracy to be considered a part
of it. To become part of a conspiracy, a defendant need
not know every aspect of it, but need only know that a
common unlawful endeavor exists. United States v.
Nusraty, 867 F.2d 759, 763 (2d Cir. 1989). Here, viewed in
the light most favorable to the government, the evidence
may reasonably be construed as establishing that Vitale
knew he was being asked to act as a courier. As a go-
between, a courier must know that he is acting in the ser-
vice of a common endeavor between at least two parties.
Vitale’s reference to an earlier trip and his memory of
“‘those guys from last time’’ suggest that he knew he was
not involved in an isolated transaction. The evidence was
sufficient for a rational fact-finder to conclude that Vitale
had knowledge of a common unlawful endeavor, and that
he became a co-conspirator when he called Alfano and
agreed to take the trip Alfano proposed.
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III. Statements by Carlo Castronovo
Castronovo argues that the district court erred in admit-
ting certain statements. We conclude ‘iat the court did not
err.
At trial, Salvatore Contorno, a witness for the govern-
ment, testified about certain statements that he claimed
had been made to him by one Carlo Castronovo
(‘‘Carlo’’). Contorno testified that Carlo told him that (1)
he (Carlo) was dealing in drugs with a cousin in the United
States named Ciccio Castronovo and (2) that Ciccio Cas-
tronovo used pizza restaurants as a front for his drug traf-
ficking. According to Contorno, Carlo invited Contorno
to participate in the drug business. According to an inter-
preter who translated at the trial, ‘‘Ciccio’’ is a diminutive
of ‘‘Francesco.’’ Appellant Frank (Francesco) Castronovo
makes no argument that the reference to Ciccio Cas-
tronovo was not a reference to himself.
The trial judge ruled that Carlo’s first statement,
regarding his claimed drug dealing with Castronovo, was
admissible as a statement against penal interest under Fed.
R. Evid. 804(b)(3) and that Carlo’s second statement,
regarding Castronovo’s alleged use of pizzerias as fronts,
was admissible as a statement by a co-conspirator under
Fed. R. Evid. 801(d)(2)(E).
A. First Statement
Castronovo makes a three-pronged attack on the admis-
sion of Carlo’s first statemeni. He argues that Carlo Cas-
tronovo was not an unavailable declarant, that no
corroborating circumstances existed to indicate the trust-
worthiness of the statement, and that the reference to Cas-
tronovo as a drug dealer was not against Carlo’s penal
interest. We address these claims in turn.
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1. Unavailability
Castronovo claims that Carlo was not ‘‘unavailable’’ as
a witness under Fed. R. Evid. 804(a) or for the purposes of
the confrontation clause of the sixth amendment. He
argues that the government’s effort to obtain Carlo as a
witness was inadequate and, further, that the effort was
flawed since it came after the start of the trial.
At the time of trial, Carlo was incarcerated in an Italian
prison. The government represented to the district court
that, at some point between September 30, 1985, the date
the trial began, and December 17, 1985, the date of an
affidavit filed by the government in response to claims
that Carlo was not unavailable, an Assistant United States
Attorney spoke to the Director of Italy’s Office of Extra-
dition. The Director told the prosecutor that Italy would
not extradite Carlo. According to the government’s affi-
davit, the government believed that the position taken by
Italy—that Italy had a right to refuse extradition—was
*‘sound.”’
For purposes of Rule 804, a declarant is unavailable
when the declarant ‘‘is absent from the hearing and the
proponent of a statement has been unable to procure the
declarant’s attendance. . . by process or other reasonable
means.’’ Fed. R. Evid. 804(a)(5) (emphasis added). For
purposes of the confrontation clause, a declarant is
unavailable when the declarant is absent ‘‘despite good-
faith efforts undertaken prior to trial to locate and present
that witness.’’ Ohio v. Roberts, 448 U.S. 56, 74 (1980).
The length to which the confrontation clause requires the
prosecution to go to produce a witness is ‘‘a question of
reasonableness.’’ Jd. at 74 (quoting California v. Green,
399 U.S. 149, 189 n.22 (1970) (Harlan, J., concurring)).
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We conclude that the extent of the government’s effort
to obtain Carlo was both reasonable and undertaken in
good faith—as is implied by the district court’s ruling—
and therefore satisfied both-Rule 804 and the confronta-
tion clause. Having been told by the Italian authority
responsible for extraditions that Italy would not extradite
Carlo, the government had no obligation to take any fur-
ther action. Castronovo implies that the government
should have made a formal written request for Carlo’s
extradition. While utilizing this formal approach perhaps
would have been preferable, such a request would most
likely have been futile and ‘‘[t]he law does not require the
doing of a futile act.’’ Roberts, 448 U.S. at 74. The gov-
ernment’s statement in its affidavit that it believed Italy’s
position was sound was not unreasonable and the state-
ment sufficed to establish that the government made a
“good-faith effort[ ],’’ id., despite the fact that it limited
itself to a single conversation with the responsible Italian
official in its effort to procure Carlo for trial.
In arguing that the admission of the statement violated
the confrontation clause, Castronovo also points out that
the government’s eifort to obtain Carlo’s presence was
made after the start of the trial. We note that the Supreme
Court in Roberts, 448 U.S. at 74, did use the language
‘efforts undertaken prior to trial’’ in discussing the test
for determining whether the prosecution had made a
good-faith effort to obtain the declarant’s presence at
trial. However, we do not believe the Court intended the
timing of the government’s effort in relation to the start of
the trial to be a crucial element of the test. In its discussion
of the test in Roberts, 448 U.S. at 74-77, the Court focused
on the extent of the government’s effort, and nowhere
indicated that it considered the timing of the government’s
effort to be of particular significance.
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Moreover, we believe that in a case such as this, in
which the government’s case-in-chief was massive and
took many months to present, it would impose an undue
burden upon the government to require it to make all of its
efforts to obtain the presence of all declarants before the
start of the trial. In such a complex trial, the prosecution
may not be aware before the trial begins of all the declar-
ants whose statements it may later seek to have admitted
into evidence. Thus, we hold that in this case Carlo was
unavailable for purposes of Rule 804 and the confronta-
tion clause, although the government’s effort to procure
him was made after the trial began.
2. Corroborating Circumstances
Next, Castronovo claims that the admission of Carlo’s
first statement violated Fed. R. Evid. 804(b)(3) since, in
his view, no corroborating circumstances existed to indi-
cate the trustworthiness of the statement. Castronovo
argues that Contorno was inclined to testify falsely in the
government’s favor. In addition, he argues that Carlo
most likely would not have made such a statement to Con-
torno, who, Castronovo argues, was a ‘‘virtual stranger’’
to Carlo.
Although Rule 804(b)(3) requires the presence of cor-
roborating circumstances only in the case of statements
‘*tending to expose the declarant to criminal liability and
offered to exculpate the accused,’ this Circuit requires
corroborating circumstances even when the statement is
offered, as here, to inculpate the accused. See United
States v. Stratton, 779 F.2d 820, 828 n.7 (2d Cir. 1985),
cert. denied, 476 U.S. 1162 (1986). In determining whether
such a statement is trustworthy enough to be admissible,
the district court must look to the circumstances in which
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the declarant made the statement. However, the court
should not look to the credibility of the in-court witness.
See United States v. Katsougrakis, 715 F.2d 769, 777 (2d
Cir. 1983), cert. denied, 464 U.S. 1040 (1984). Assessing
the credibility of an in-court witness is the role of the jury.
Therefore, we reject as not pertinent to the evidentiary rul-
ing Castronovo’s argument that Contorno was inclined to
lie. Castronovo asserts that Contorno was a ‘‘virtual
stranger’’ to Carlo. The district court concluded other-
wise, finding for purposes of its evidentiary ruling that
Carlo and Contorno had worked together as cigarette
smugglers and cattle dealers. Badalamenti, 626 F. Supp. at
662. We conclude that the court did not err in making this
determination. Therefore, since Carlo was a former busi-
ness associate, and we perceive no reason from the evi-
dence in the record for him to have lied or attempted to
curry favor, we conclude that the circumstances in which
the statement was made indicate that it was sufficiently
trustworthy to be admitted.
3. Against Penal Interest
Castronovo argues that the district court erred in admit-
ting that portion of Carlo’s first statement which referred
to Castronovo, since it was not against Carlo’s penal inter-
est to say that Castronovo was dealing Crugs. Castronovo
concedes that the portion of Carlo’s statement relating to
Carlo’s drug dealing was against Carlo’s penal interest,
but he argues that only that portion of it, and not the
whole statement, satisfied the requirement of Rule
804(b)(3) that the statement must ‘‘tend[ ] to subject the
declarant to civil or criminal liability.”” We do not agree.
In admitting a statement as against the penal interest of
the declarant, the district court need not excise those por-
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Opinion of United States Court of Appeals
tions which refer to others. See Stratton, 779 F.2d at 828
(statement by declarant inculpating himself and three
other defendants admissible against the three others under
Rule 804(b)(3)). Admitting the entire statement even
though it contains a reference to others is particularly
appropriate when that reference is closely connected to the
reference to the declarant. See 4 J. Weinstein & M. Berger,
Weinstein’s Evidence 4 804(b)(3)[02], at 137-38 (1988)
(admitting portions of the statement closely connected to
the declaration against interest is approach ‘‘best calcu-
lated to carry out the design of the draftsmen of Ruie
804(b)(3)’’). In Carlo’s statement that he was dealing
drugs with Castronovo, the reference to Carlo’s drug deal-
ing is so closely linked to the reference to Castronovo’s
drug dealing that the admission of the entire statement was
clearly proper. In sum, we conclude that the district court
committed no error in admitting Carlo’s first statement.
B. Second Statement
Castronovo claims that the district court erred in admit-
ting Carlo’s second statement—regarding Castronovo’s
use Of pizzerias as a front—because, he argues, insuffi-
cient evidence existed to show that Carlo’s statement was
“‘by a coconspirator of a party during the course and
in furtherance of the conspiracy.’’ Fed. R. Evid.
801(d)(2)(E).
We find this argument unpersuasive. In determining
whether for purposes of Rule 801(d)(2)(E) the declarant is
a co-conspirator of a party, a court may look to the state-
ments of the declarant. Bourjaily v. United States, 483
U.S. 170, 180-81, 107 S. Ct. 2775, 2781-82 (1987). Here,
Carlo’s statement that he and Castronovo were dealing in
drugs together presented key evidence that Carlo and Cas-
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tronovo were co-conspirators. Carlo’s invitation to Con-
torno to join the conspiracy presents strong evidence that
Carlo’s remarks were made to Contorno in furtherance of
the charged conspiracy.
Evidence independent of Carlo’s statements lends fur-
ther support to the conclusion that Carlo’s statements sat-
isfied the requirement of Rule 801(d)(2)(E). For example,
evidence in the record shows that in early 1980 Castronovo
attended a meeting in Bagheria, Sicily, at which a quantity
of heroin was tested. The district court found that Salva-
tore Greco also attended the meeting, as a representative
of the Mafia family to which Carlo belonged. This finc-
ing, which we do not believe to be clearly erroneous, fur-
ther supports the conclusion that Castronovo and Carlo
were CO-conspirators.
In attacking the evidence as insufficient to satisfy Rule
801(d)(2)(E), Castronovo argues that the evidence proved
events which occurred after Carlo made the statement at
issue, and that this evidence could not be used to prove the
conspiracy existed at the time the statement was made. We
do not agree. Post-statement events may be used to prove
that a statement was made during the course of a conspir-
acy. See United States v. Kaplan, 832 F.2d 676, 685 (lst
Cir. 1987), cert. denied, 108 S. Ct. 1080 (1988). Having
considered Carlo’s statements along with the other evi-
dence discussed by the district court, 626 F. Supp. at 663,
we conclude that the court did not err in determining that
the requirement of Rule 801(d)(2)(E) was satisfied. In
sum, the court properly admitted Carlo’s statements.
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IV. Admission of the Cocilovo Evidence
As part of its rebuttal, the government presented evi-
dence that on June 6, 1983, in Miami, Florida, two police
officers seized approximately six kilograms of cocaine and
a piece of paper with appellant Mazzurco’s telephone
number on it from a person named Guido Cocilovo. The
government aiso presented a customs document, seized
from Mazzurco’s residence, which indicated that Cocilovo
had shipped certain goods from Italy to Miami.
On appeal, Catalano, Mazzurco and Giuseppe and
Salvatore Lamberti claim that the district court erred in
admitting this evidence. Appellants argue that the evi-
dence did not rebut any of the evidence presented by the
defense, but merely bolstered the government’s case, and
therefore should not have been admitted. We are not per-
suaded by appellants’ argument. The function of rebuttal
evidence is to explain or rebut evidence offered by the
other party. United States v. Neary, 733 F.2d 210, 220 (2d
Cir. 1984). A district court has wide discretion over what
evidence may be presented on rebuttal. United States v.
Nussen, 531 F.2d 15, 20 (2d Cir.), cert. denied, 429 U.S.
839 (1976). Here, we conclude that the district court acted
within its discretion in admitting the evidence relating to
Cocilovo.
Mazzurco testified in his own defense. During his cross-
examination, Mazzurco stated that he had worked as a
broker in the business of importing precious stones.
Implicitly, he denied that he had any connection to narcot-
ics trafficking. The evidence relating to Cocilovo served to
rebut Mazzurco’s claim that he was an importer of legiti-
mate goods. By linking Mazzurco to Cocilovo, who clearly
was involved both in importing activities and drug traf-
ficking, the evidence cast doubt on Mazzurco’s claim of
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Opinion of United States Court of Appeals
innocence. Since the Cocilovo evidence served to rebut the
defense presented by Mazzurco, we rule that the district
court did not abuse its discretion in admitting this evidence
during the government’s rebuttal case.
V. The Depositions Taken in Switzerland
During a six-day period in June 1985, the government
deposed a number of witnesses in Switzerland. On appeal,
Castronovo claims that three of these depositions should
not have been admitted into evidence. Greco claims that
the deposition of Paul Waridel should not have been
admitted.
A. Cross-Examination of Waridel
First, appellants argue that the admission into evidence
of the deposition of Paul Waridel, who was then incarcer-
ated in Switzerland and facing criminal charges there, vio-
lated their rights under the confrontation clause of the
sixth amendment and under 18 U.S.C. § 3503(d)(2). In
essence, appellants argue that they were not given suffi-
cient advance notice that Waridel’s deposition would be
taken and that, during the deposition, the Swiss judge who
presided did not give them sufficient time to cross-examine
the deponent. We reject these arguments.
On June 3, 1985, the prosecution applied to the district
court for authorization to take the depositions in Switzer-
land. In making its application, the prosecution stated its
theory of Waridel’s role in events relevant to the govern-
ment’s case. The prosecution stated that Waridel had an
**instrumental’’ role in the conspirators’ efforts to collect
the proceeds of their drug sales, and that he was
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Opinion of United States Court of Appeals
present at meetings in Switzerland where the specific
details of the cash collection in New York . . . were
made and the particulars as to where the money was
going in Switzerland and the purpose that it was to be
used for, which again we believe will be the financing
of heroin deals in the 1980, 1982 period.
On June 5, 1985, the district court ordered that the gov-
ernment arrange with Swiss authorities to take the deposi-
tion of Waridel and others during the week of June 10,
1985.
The Waridel deposition was taken on June 14, 1985.
The presiding Swiss judge allowed the government to
examine Waridel for two and one-half hours. Waridel tes-
tified about various meetings and financial transactions
and his dealings with Musullulu, the alleged morphine
base supplier in Turkey. Following Waridel’s direct exami-
nation, the judge indicated that the defense collectively
would have as much time for cross-examination as the
government had for direct, plus a little more time ‘‘if need
be.’’ The seven defense counsei present then stated that
they could not adequately cross-examine the witness
because they were not sufficiently prepared and because
they were not being allowed sufficient time to question
him. Speaking for himself and the other defense counsel,
counsel for Castronovo stated that an adequate examina-
tion would probably take at least two or three days.
Despite this protest, counsel for Catalano proceeded to
cross-examine Waridel for approximately two and one-
half hours. Following the cross-examination by Cata-
lano’s counsel, the other defense counsel declined to
question Waridel in the time that remained. Counsel
refused to question Waridel even after the Swiss magis-
trate stated that he would give counsel ‘‘the time necessary
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Opinion of United States Court of Appeals
to put some questions to the witness.’’ The defense coun-
sel, although complaining of lack of time for adequate
cross-examination, made no proffer to indicate what areas
of inquiry they would pursue were more time available.
The confrontation clause of the sixth amendment
‘‘suarantees only ‘an opportunity for effective cross-
examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might
wish.’ ’’ Kentucky v. Stincer, 482 U.S. 730, 739 (1987)
(emphasis in original) (quoting Delaware v. Fensterer, 474
U.S. 15, 20 (1985) (per curiam)). Here, eleven days before
the Waridel deposition was taken, defense courisel were
informed of what the government expected would be the
content of Waridel’s testimony. While defense counsei
understandably would have preferred more time to pre-
pare for Waridel’s deposition, we are satisfied that the
notice they were given was sufficiently in advance of the
deposition date so as not to deny the appellants an oppor-
tunity for effective cross-examination. :
Similarly, we conclude that the amount of time allotted
to the defense to conduct cross-examination of Waridel
did not deny appellants the opportunity for effective
cross-examination. We note that the extent of cross-
examination lies within the discretion of the judge, United
States v. Blanco, 861 F.2d 773, 781 (2d Cir. 1988), cert.
denied, 109 S. Ct. 1139 (1989), and that a judge ‘‘abuses
his discretion in curtailing cross-examination of a govern-
ment witness when the curtailment denies the jury ‘suffi-
cient information to make a discriminating appraisal of
the particular witness’s possible motives for testifying
falsely in favor of the government.’ ’’ /d. at 781 (quoting
United States v. Singh, 628 F.2d 758, 763 (2d Cir.), cert.
denied, 449 U.S. 1034 (1980)). Here, defense counsel col-
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Opinion of United States Court of Appeals
lectively had over two and one-half hours to cross-examine
Waridel. While, understandably, defense counsel would
have preferred to have more time to probe every aspect of
Waridel’s testimony, on these facts, appellants were not
unconstitutionally denied sufficient time for cross-
examination. In two and one-half hours, counsel for the
defense surely could have elicited, and counsel for Cata-
lano to some extent did elicit, information from Waridel
to suggest that Waridel might have had a motive for testi-
fying falsely. Moreover, defense counsel made no proffer
to indicate what areas of inquiry they would pursue if they
had had more time. See Jones v. Berry, No. 89-2126, slip
op. at 4678-79 (2d Cir. July 24, 1989); Harries v. United
States, 350 F.2d 231, 236 (9th Cir. 1965) (no abuse of dis-
cretion in limiting cross-examination when, inter alia,
counsel made no offer of proof as to additional facts
expected to be elicited from the witness). Since one defense
counsel used the allotted time effectively in an effort to
impeach the deponent’s credibility and additional time
apparently was available to other counsel, we conclude
that appellants were not prejudiced by the fact that every
defense counsel was not guaranteed time to challenge
Waridel to the extent they deemed sufficient. Cf. United
States v. Partin, 524 F.2d 992, 1000 & n.20 (Sth Cir. 1975)
(district court’s refusal to allow both of defendant’s attor-
neys to cross-examine witness did not deprive defendant of
his sixth amendment right to confrontation), cert. denied,
425 U.S. 904 (1976). Under the circumstances, we con-
clude that no sixth amendment violation occurred herein.
Appellants also claim that the admission of the Waridel
deposition violated 18 U.S.C. §3503(d)(2). This provision
requires that when a deposition is taken in a criminal case,
*“*the scope of examination and cross-examination shall be
such as would be allowed in the trial itself.’’ Appellants
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argue that the extent of cross-examination at a trial would
have been greater than was allowed at the Waridel deposi-
tion, and, therefore, that the admission of the deposition
violated the statute. Appellants’ argument is not persua-
sive; we disagree with appellants’ premise that at a trial
defense counsel necessarily would have been permitted to
cross-examine Waridel to a greater extent than occurred at
the taking of the deposition. As has been discussed, coun-
sel were afforded an adequate opportunity to elicit infor-
mation from Waridel to suggest that he might have had a
motive for testifying falsely. See Blanco, 861 F.2d at 781.
Moreover, defense counsel made no proffer to indicate
what areas of inquiry they would pursue had they been
permitted more time. See Jones, slip op. at 4678-79; Har-
ries, 350 F.2d at 236. In light of these facts, there is no
basis for us to conclude that the cross-examination of
Waridel was of a lesser scope than ‘‘would be allowed in
the trial itself.’’ Therefore, the admission of the deposi-
tion into evidence did not violate § 3503(d)(2).
B. Unavailability of Waridel
Castronovo argues that the admission of the Waridel
deposition violated 18 U.S.C. § 3503(f) since Waridel was
willing to testify at trial. This argument lacks merit.
Section 7503(f) provides that a deposition may be used
at trial ‘‘if it appears: . . . that the witness is out of the
United States, unless it appears that the absence of the wit-
ness was procured by the party offering the deposition.”’
Here, Waridel, incarcerated in a Swiss prison, was ‘‘out of
the United States.’’ Moreover, his presence in Switzerland
was procured by Swiss authorities, not by the United
States government. Since the requirements for admissibil-
ity set forth in § 3503(f) were met here, no violation of
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that provision occurred. Whether Waridel would have
been willing to testify at trial is not pertinent to our analy-
sis.
C. Absence of Oath or Pre-Testimony Affirmation
Finally, Castronovo argues that the depositions of
Waridel, Franco Della Torre and Adriano Corti should
not have been admitted since the presiding Swiss judge did
not administer an oath or affirmation to these deponents
before they testified. We find this argument unpersuasive.
The presiding Swiss judge did not administer an oath or
affirmation to the deponents before they testified because
the deponents were facing criminal charges in Switzerland
and Swiss law does not allow those facing criminal charges
to take an oath before testifying. Although none of the
deponents took an oath or made an affirmation, each
stated at the beginning of his examination that he would
tell the truth. Della Torre made such a statement sua
sponte and Waridel and Corti in response to a question by
the prosecuting attorney. At the end of each deponent’s
testimony, a special master from the United States, Hon-
orable Edmund L. Palmieri, appointed by Judge Leval to
serve as an advisor to the Swiss authorities, asked each
deponent the following question:
Can you solemnly affirm that all the answers you
have given in this proceeding represent the truth and
nothing but the truth to the best of your information
and belief and do you so affirm with the same force
and effect as if you had been formally sworn to tell
the truth?
Each deponent answered in the affirmative. In a report to
the district court, the special master wrote, ‘‘I] was deeply
impressed by the respectful attitude of the witnesses and
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their attorneys towards the Swiss judge and it occurred to
me on more than one occasion that they were deeply
impressed by the solemnity of the proceedings and the
necessity to testify truthfully.’’
Castronovo correctly points out that Fed. R. Civ. P.
30(c), which under 18 U.S.C. § 3503(d) governs the taking
of depositions in criminal cases, requires that ‘‘[t]he offi-
cer before whom the deposition is to be taken shall put the
witness on oath,’’ and that Fed. R. Evid. 603 requires that
‘“‘fbjefore testifying, every witness shall be required to
declare that the witness will testify truthfully, by oath or
affirmation.’’ However, as this court made clear in United
States v. Salim, 855 F.2d 944 (2d Cir. 1988), a deposition
taken in a foreign country may be admissible in a criminal
trial in the United States despite the deposition’s having
been taken in a manner which does not strictly accord with
federal law. In Salim, the court held that such a deposition
would be admissible ‘Sunless the manner of examination
required by the law of the host nation is so incompatible
with our fundamental principles of fairness or so prone to
inaccuracy or bias as to render the testimony inherently
unreliable.’’ Jd. at 953. In our view, the testimony given
by Waridel, Della Torre and Corti was not ‘‘inherently
unreliable.’’ The promises given by the deponents to tell
the truth, the affirmations the deponents gave at the end
of their examination, and the respectful attitude the depo-
nents displayed toward the proceedings persuade us that
the testimony given was sufficiently reliable to be admis-
sible.
Having considered all of appellants’ arguments with
regard to the Swiss depositions, we do not find them per-
suasive.
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VI. Bagheria Meeting
In its opening statement, the government asserted that
in February 1980, several of the defendants, including
Greco, met in Bagheria, Sicily, to test some heroin which
they were planning to buy. In his opening statement,
Greco denied that he had attended the meeting. Subse-
quently, the government presented Greco with a demand
for an alibi. In the alibi demand, dated October 30, 1985,
the government asserted that the Bagheria meeting
occurred ‘‘sometime shortly prior to approximately Feb-
ruary 14, 1980.’’ Shortly after issuing the alibi demand,
the government came upon evidence—in the form of rec-
ords from a travel agency and a series of checks signed by
Greco—which strongly suggested that Greco had been in
the United States in February 1980. Meanwhile, Greco had
responded to the alibi demand by asking the government
to specify on which date the government alleged the meet-
ing occurred. Responding to Greco in a document dated
November 19, 1985, the government stated that ‘‘[bJased
upon the present state of the evidence, the Government
can specify that the testing session occurred . . . some-
time between approximately February 1, 1980 and March
15, 1980.’
On December 18, 1985, during the trial, the prosecution
asked Salvatore Contorno, a government witness, when in
1980 the Bagheria meeting occurred. Contorno testified
that it occurred in ‘‘February, March.’’
Later in the trial, out of the presence of the jury, in an
effort to prove that Contorno originally told the govern-
ment that the Bagheria meeting had occurred on or before
February 14, 1980 and that Contorno’s testimony that the
meeting occurred in ‘‘February, March’’ was a fabrica-
tion, Greco offered (1) the government’s alibi demand as
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proof, and also offered (2) to call to the stand Robert
Stewart, the Department of Justice attorney who signed
the alibi demand. In response to Greco’s offers, Judge
Leval asked Stewart what caused the government to
believe at the time it made its alibi demand that the Baghe-
ria meeting occurred sometime before February 14, 1980.
Stewart responded that the government believed that the
meeting occurred at that time because appellant Cas-
tronovo, who it believed attended the meeting, left Sicily
on February 14, 1980 and because another meeting, which
the government believed followed the Bagheria meeting,
occurred in Palermo, Sicily, on the same day. The judge
also asked Stewart whether Contorno had ever told the
government anything different regarding the date of the
Bagheria meeting from what he said on the witness stand.
Stewart replied in the negative. The district judge then sus-
tained the government’s objections to Greco’s two offers.
In addition, the judge stated that in his summation, Greco
would be allowed to argue to the jury that Contorno’s tes-
timony was fabricated, so long as the argument was based
on evidence in the record.
On appeal, Greco argues that the district court commit-
ted reversible error when it refused to admit into evidence
the alibi demand and refused to allow him to call Stewart
as a witness. We conclude that the court’s ruling was not
erroneous.
Unless made in excess of sound discretion, evidentiary
rulings of the sort here challenged will not be disturbed on
appeal. United States v. Blanco, 861 F.2d 773, 781 (2d Cir.
1988), cert. denied, 109 S. Ct. 1139 (1989). Here, the dis-
trict court did not exceed its discretion in denying Greco’s
request to admit the alibi demand or to call Stewart as a
witness.
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According to Greco’s theory, Contorno originally told
the government that the Bagheria meeting occurred at the
latest in February 1980 and, according to Greco, the gov-
ernment, in making its opening statement and its alibi
demand, relied upon this representation. When the gov-
ernment learned of evidence showing that Greco most
likely was in the United States in February 1980, it
changed its position, and stated in its November 19, 1985
statement to Greco that the meeting may have occurred in
February or March 1980. Then, according to Greco, Con-
torno, to conform to the government’s new position,
falsely testified that he believed the meeting occurred in
‘February, March’’ 1980.
Greco sought to have the alibi demand admitted to
prove that Contorno had fabricated his testimony. To
prove that such a fabrication occurred, Greco would have
had to establish that, before testifying, Contorno actually
believed, or at least told the government, that the meeting
occurred at the latest in February 1980. However, the
admission of the alibi demand would not have established
what Contorno believed or what he told the government.
The alibi demand would only have shown that the govern-
ment originally believed that the meeting occurred some-
time before February 14. So long as the government based
its original position on something other than a representa-
tion by Contorno, the alibi demand could not establish
what Contorno originally believed or told the government.
Here, Stewart told the court that the government based its
Original position regarding the date of the Bagheria meet-
ing on the timing of Castronovo’s departure from Sicily
and the meeting in Palermo. Since the district judge
believed that the government did not base its original posi-
tion on a representation by Contorno, he acted reasonably
in excluding the alibi demand; the admission of the alibi
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demand would not have established that Contorno’s testi-
mony differed from what he actually believed or told the
government.
The district court also acted reasonably in refusing to
allow Grece to call the Department of Justice attorney,
Stewart, as a witness. Stewart told the court that Contorno
had made no statements to the government which differed
from his testimony. We see little reason to believe that by
examining Stewart, Greco would have been able to estab-
lish that Contorno had fabricated his testimony.
Finally, we reject as frivolous Greco’s argument that the
district court, by allowing Greco to argue in summation
that Contorno had testified falsely, recognized that argu-
ment ‘‘as being legitimate,’’ and therefore was obligated
to admit the evidence Greco offered in support of his
claim. A district court does not endorse an argument
merely by allowing it to be made. The district judge had no
obligation to admit the evidence Greco offered, so long as
he had a valid reason to exclude it. As already discussed,
such a valid reason existed—namely, that the evidence
would not have tended to establish that Contorno’s testi-
mony was fabricated. In sum, we conclude that the district
court did not commit reversible error in excluding the alibi
demand from evidence or in refusing to allow Greco to call
the government attorney as a witness.
VII. Restitution Order
As part of their sentences, the district court ordered sev-
eral of the appellants to pay restitution ‘‘to a fund which
shall be utilized for the medical treatment, rehabilitation
and restitution of persons injured by addiction to narcot-
ics in the 1980s.’’ In imposing the restitution order, Judge
Leval asserted that he was acting pursuant to 18 U.S.C.
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§ 3579(b)(2) (1982) (enacted as part of the Victim and Wit-
ness Protection Act of 1982) (redesignated § 3663, effec-
tive November 1, 1987).* Those appellants sentenced to
pay restitution now challenge the restitution order, claim-
ing it was improper. We agree and we vacate the relevant
portions of the judgments of sentence. -
We begin our analysis by noting that, in reviewing resti-
tution orders, we apply an abuse of discretion standard.
See United States v. Atkinson, 788 F.2d 900, 902 (2d Cir.
1986); United States v. Richard, 738 F.2d 1120, 1122 (10th
Cir. 1984). We also note, however, that a federal court has
no inherent power to order a defendant to pay restitution,
United States v. Elkin, 731 F.2d 1005, 1010 (2d Cir.), cert.
denied, 469 U.S. 822 (1984); further, a ‘‘court’s otherwise
broad discretion to determine the punishment to be
imposed on a defendant is circumscribed by the sentencing
limitations established by statute.’’ Jd. at 1010.
Before the enactment of the Victim and Witness Protec-
tion Act, district courts were authorized to order restitu-
tion payments pursuant to 18 U.S.C. § 3651 (1982)
(repealed, effective November |, 1987). Under § 3651, a
district court was authorized to require a defendant, as a
condition of the defendant’s probation, ‘‘to make restitu-
2 Section 3579(b)(2) states that a restitution order may require that a
defendant:
in the case of an offense resulting in bodily injury to a victim—
(A) pay an amount equal to the cost of necessary medical and
related professional services and devices relating to physical,
psychiatric, and psychological care, including nonmedical care
and treatment rendered in accordance with a method of healing
recognized by the law of the place of treatment;
(GB) pay an amount equal to the cost of necessary physical and
occupational therapy and rehabilitation; and
(C) reimburse the victim for income lost by such victim as a
result of such offense.
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tion or reparation to aggrieved parties for actual damages
or loss caused by the offense for which conviction was
had.’’ Interpreting § 3651 in Fiore v. United States, 696
F.2d 205, 209 (2d Cir. 1982), this court wrote that a
**defendant may not be required to pay reparations to per-
sons not aggrieved by his crimes, or simply to the commu-
nity at large’’ A restitution order like the one under
consideration here would provide reparations to the addict
community at large and clearly would have been imper-
missible under § 3651. Using the defendants’ money, the
subject fund would be used to provide care to individuals
who could not be shown to have been injured by these
defendants. It cannot be gainsaid that it would have been
contrary to Congress’ intent in enacting § 3651 to compel
one group of suppliers to pay to ameliorate the deleterious
effects of drug usage attributable to drugs supplied by
others.
While 18 U.S.C. § 3579 (now § 3663), like § 3651
before it, contains no explicit prohibition against a restitu-
tion order which requires payment on behalf of individ-
uals whose injuries have no connection to the activities of
the defendants, the legislative history and the language of
§ 3579 clearly indicate to us that such orders have not been
authorized by Congress. In enacting § 3579, Congress
intended to allow a district court to order a criminal defen-
dant to make whole those who had been victimized by that
defendant. See S. Rep. No. 532, 97th Cong., 2d Sess. 30,
reprinted in 1982 U.S. Code Cong. & Admin. News 2515,
2536 (‘‘The premise of [§ 3579] is that the court in devising
just sanctions for adjudicated offenders, should insure
that the wrongdoer make [good], to the degree possible,
the harm he has caused Ais victim.’’ (emphasis added)).
The legislative history contains no hint that § 3579 was
meant to authorize restitution orders which would compel
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defendants to make whole the victims of crimes committed
by others. Moreover, the language of § 3579(b)(2) shows
that Congress did not contemplate broad restitution
orders such as the one at issue here. The language of this
provision sets forth in detail those costs incurred by a vic-
tim which may be used to calculate the amount of restitu-
tion. By taking pains to spell out which of the victim’s
costs could be used to calculate the amount of restitution,
the Congress in drafting § 3579(b)(2) clearly evinced no
intent to authorize the district court to compel a defendant
to pay for other losses suffered by the defendant’s victim,
and, @ fortiori, for losses suffered by individuals with
whom the defendant had no provable connection.
Title 18 U.S.C. § 3580(a) (redesignated § 3664, effective
November 1, 1987) lends further support to our determi-
nation that the district court abused its discretion in
imposing the restitution order. Section 3580(a) (now
§ 3664) requires that ‘‘[t]he court, in determining whether
to order restitution under section 3579 of this title and the
amount of such restitution, shall consider the amount of
the loss sustained by any victim as a result of the offense.’’
(emphasis added). The district court need not make fac-
tual findings on the record regarding the amount of the
victim’s damages, United States v. Golomb, 811 F.2d 787,
791 (2d Cir. 1987), but, under the statute, it must at least
consider the amount of loss sustained by individual vic-
tims. Here, the district court could not have been expected
to identify any individual victims who suffered a loss as a
result of the offenses committed by these appellants.
Therefore, the district court could not have considered the
amount of loss any such victims may have suffered. That
the district court obviously could not comply with
§ 3580(a) in this regard reinforces our conclusion that the
subject restitution order was not authorized by law.
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In arguing that the restitution order was proper, the
government relies on United States v. Danilow Pastry Co.,
563 F. Supp. 1159 (S.D.N.Y. 1983). In Danilow, the dis-
trict court held that it was proper under § 3651 to order six
bakeries which had pleaded nolo contendere to charges of
price-fixing to donate fresh baked goods to certain chari-
table organizations. We withhold judgment as to whether
Danilow was properly decided. Even assuming for pur-
poses of this appeal that it was properly decided, Danilow,
by its own terms, involved an order clearly distinguishable
from the one in this case. The court in Danilow made clear
that its holding only applied to ‘‘non-monetary, commu-
nity service,’’ id. at 1171, and stated that in cases involving
‘‘a monetary payment,’”’ ‘‘the defendant may not be
required to pay reparations to persons not aggrieved by his
crimes,’’ id. at 1170 (quoting Fiore, 696 F.2d at 209).
The government’s reliance on United States v. Ruffen,
780 F.2d 1493 (9th Cir.), cert. denied, 479 U.S. 963 (1986),
is also misplaced. In Ruffen, the Ninth Circuit affirmed a
district court order, issued pursuant to § 3579, which
required a defendant to pay restitution to a county social
services agency after he pled guilty to conspiring to steal
and convert to his own use federal funds which were pre-
sumably earmarked for the agency’s use. Jd. at 1494.
While the court noted that the defendant had defrauded
taxpayers, it identified the county as the ‘‘victim’’ for pur-
poses of § 3579. Id. at 1496. In Ruffen, therefore, the
court identified a victim which had suffered a loss as a
consequence of the crime of the defendant. Here, the
court identified no individual victims who suffered injury
attributable to the appellants’ crimes.
While the effect of our reversal of the district court’s
restitution order will deprive unidentified drug users of a
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modicum of care which they might otherwise receive, Con-
gress has enacted no law authorizing such an order and we
are obliged to act within the constraints of the applicable
statute, see Elkin, 731 F.2d at 1010. Therefore, we vacate
the relevant portions of the judgments of sentence pertain-
ing to restitution.
VIII. Mazzurco’s Post-Arrest Statement
On April 9, 1984, FBI agents arrested Mazzurco and
informed him of his constitutional rights. At the time of
his arrest, Mazzurco told the agents that he knew defen-
dant Pietro Alfano and that the previous year he and
Alfano had thought about buying a pizzeria together.
During his direct examination at trial, Mazzurco testified
that he had engaged in the business of importing precious
stones into the United States. On cross-examination, the
prosecutor asked Mazzurco whether at the time of his
arrest he told the FBI agents that he was ‘‘dealing precious
stones with Mr. Alfano?’’ The district court overruled the
objection which followed this question. Mazzurco replied
to the question: ‘‘No, I did not.’’
On appeal, Mazzurco argues that the district court vio-
lated his due process rights by allowing the prosecutor’s
question, and that the court’s ruling constitutes reversible
error. The government argues that the question was
proper since Mazzurco, after receiving Miranda warnings,
elected to speak about his relationship with Alfano. We
agree with Mazzurco that the district court erred by allow-
ing the question. However, we conclude that the error was
harmless.
In Doyle v. Ohio, 426 U.S. 610, 618 (1976), the Supreme
Court held that a defendant suffers a deprivation of due
process when the prosecution uses his post-arre t, post-
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Miranda-warnings silence to impeach an explanation he
subsequently offered at trial. In Anderson v. Charles, 447
U.S. 404, 408 (1980), the Court held that ‘‘Doyle does not
apply to cross-examination that merely inquires into prior
inconsistent statements.’’ Here, the government cites
Anderson in support of its argument that the question
asked on cross-examination was proper.
It is evident to us that Anderson does not apply here
since Mazzurco’s statement to the FBI agents and his testi-
mony during direct examination were not inconsistent. It
is logically consistent that Mazzurco could have known
Alfano and considered buying a pizzeria with him and,
concurrently, could have been in the business of importing
precious stones.
By making a post-arrest statement about Alfano, Maz-
zurco did not open the door to any and all questions about
Alfano the government might have cared to ask him dur-
ing cross-examination. Indeed, for purposes of analysis
under Doyle, even if a defendant has made statements to
the police after receiving Miranda warnings, he is deemed
to have maintained his silence, unless the post-arrest state-
ments are inconsistent with the defendant’s testimony at
trial. See Anderson, 447 U.S. at 407 n.2 (in Doyle, defen-
dant deemed to have remained silent for due process pur-
poses despite his having made statements to arresting
officer, since his statements did not contradict later testi-
mony); Phelps v. Duckworth, 772 F.2d 1410, 1412 (7th
Cir.) (en banc) (for Doyle purposes, defendant deemed not
to have remained silent after arrest since ‘‘[bJefore trial
. . . he denied he had been sexually involved with Mrs.
Clem, whereas at the trial he told a completely different
story that he. .—. had sexual intercourse with her’’), cert.
denied, 474 U.S. 1011 (1985). Here, since Mazzurco’s
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post-arrest statement was not inconsistent with his trial
testimony, we conclude that for Doyle purposes he
remained silent. Therefore, we conclude that, under
Doyle, the district court violated Mazzurco’s due process
rights by allowing the prosecutor’s inquiry.
Although we find the district court erred, we also con-
clude that the error was harmless. An error of constitu-
tional dimension may be held to have been harmless if the
government can show ‘“‘ ‘beyond a reasonable doubt that
the error complained of did not contribute to the verdict
obtained.’ ’’ Satterwhite v. Texas, 108 S. Ct. 1792, 1798
(1988) (quoting Chapman v. California, 386 U.S. 18, 24
(1967)). Appraisal of an error’s impact depends on the
nature of the violation in the context of a given factual set-
ting. Hawkins v. LeFevre, 758 F.2d 866, 878 (2d Cir.
1985).
In Hawkins, this court held that the Doyle-type viola-
tion which occurred in that case was of a ‘“‘grievous
nature.’’ Jd. at 879. In Hawkins, the trial judge, rather
than the prosecutor, made the inquiry which violated the
defendant’s rights. Jd. at 875. Moreover, the inquiry con-
cerned the defendant’s silence not only at the time of his
arrest, but also after his arrest, in the district attorney’s
office and in the grand jury room. /d. at 876. Finally, the
trial judge made repeated references to the defendant’s
having maintained his silence. Jd. at 869-70. Here, by con-
trast, the prosecutor, not the judge, asked the offending
question; the question concerned only Mazzurco’s silence
immediately after his arrest, and not later; and, finally,
Mazzurco does not contend on appeal that the prosecutor,
after asking the improper question, thereafter sought to
make a point of Mazzurco’s silence. These distinctions
between Hawkins and the instant case lead us to conclude
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that the violation of Mazzurco’s due process rights was
not of a ‘‘grievous nature.’’
Furthermore, in Hawkins, the evidence against the
defendant was tenuous. /d. at 878. Here, by contrast, the
evidence supporting a finding that Mazzurco was guilty
was strong.
To demonstrate the weight of the evidence against Maz-
zurco, which we only partially describe here, we briefly
recount an incident in which Mazzurco was involved and
then list the fruits of the FBI’s search of Mazzurco’s
home, car, and garage. Evidence was presented to show
that on July 25, 1983, a federal agent telephoned defen-
dant Benito Zito and expressed interest in buying some
heroin. Following the agent’s call, Mazzurco engaged in
coded conversations with defendant Giuseppe Ganci and
then, on July 31, delivered a blue box to Ganci’s home. On
August |, Zito told the agent that his associates had heroin
available and, two days later, Zito delivered to the agent a
blue box which contained heroin. Inside the box, on tissue
paper, was Mazzurco’s palmprint.
When an FBI agent searched Mazzurco’s garage on
April 9, 1984, he seized a wooden box which, according to
the evidence, contained traces of heroin. (See infra Point
XV.) The search of Mazzurco’s house, car and garage also
revealed a scale which contained traces of heroin and
cocaine, a money-counting machine, a loaded semi-
automatic handgun, ammunition, approximately $46,000
in cash, and a notebook containing records, which,
according to the testimony of the agent who found the
notebook, appeared to relate to criminal transactions.
We conclude that, based on the nature of the violation
and the trial record as a whole, the error in allowing the
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prosecutor’s question was harmless. ‘‘[T]he properly
admitted evidence of guilt is so overwhelming, and the
prejudicial effect of the [error] so insignificant by compar-
ison, that it is clear beyond a reasonable doubt that [the
error] was harmless error.’’ Parker v. Randolph, 442 U.S.
62, 70-71 (1979) (plurality) (footnote omitted).
IX. Devardo’s Plea Agreement
On July 21, 1986, Devardo pled guilty to two counts of
firearms violations in a superseding information. As part
of the plea agreement Devardo reached with the govern-
ment, the government promised that it would ‘‘make no
recommendation as to sentence with regard to counts on
this information.’’ Nowhere in the agreement did the gov-
ernment state that it reserved the right to comment upon
the nature of Devardo’s crimes. However, the government
did ‘‘reserve all rights to respond to any arguments that
the defendant makes to the court prior to or at sentenc-
ing.’’ Prior to his sentencing on July 23, 1987, Devardo
presented material to the district judge in support of a leni-
ent sentence. Judge Leval then sentenced Devardo to four
years in prison on each count, to be served concurrently.
Prior to Devardo’s presenting his material to the district
court, the government, on May 27, 1987, filed a sentenc-
ing memorandum with the court. The memorandum
recounted the government’s case against the defendants
and then discussed in detail the allegations and evidence
presented against each of the eighteen defendants the jury
had found guilty. In the final section of the memorandum,
the government wrote that the defendants should be
divided into two groups, a group of higher level criminals,
who performed supervisory functions in the conspiracy, —
and a group of lower level criminals, who took orders. It
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placed Devardo in the second group. The government then
wrote ‘‘we respectfully submit that the culpability of the
defendants standing before the Court should be regarded
in the primary and secondary groupings set forth.’’ The
government also wrote that ‘‘no defendant should receive
an artificial benefit because of the fortuity of the charges
against others. Such blind ‘ranking’ fails to account for
the unparalleled degree of criminal activity of these defen-
dants, who are fortunate that they do not all face more
potential incarceration.’’
On appeal, Devardo contends that the government, by
submitting the sentencing memorandum, violated that
part of his plea agreement in which the government prom-
ised not to make any recommendation as to his sentence.
He argues that he should be resentenced before another
judge. We conclude that the government breached the plea
agreement, but we deny Devardo’s request for resen-
tencing.
To determine whether a plea agreement has been
breached, we must determine what the parties to the plea
agreement reasonably understood to be the terms of the
agreement. United States v. Carbone, 739 F.2d 45, 46 (2d
Cir. 1984); Paradiso v. United States, 689 F.2d 28, 31 (2d
Cir. 1982), cert. denied, 459 U.S. 1116 (1983). In United
States v. Corsentino, 685 F.2d 48, 49 (2d Cir. 1982), as this
court noted, the government entered a plea agreement
with the defendant, promising that it would ‘‘take no posi-
tion at sentence.’’ During the course of a colloquy with the
defendant prior to acceptance of the plea agreement, the
district judge expressly noted that the government had
retained the right to submit ‘‘a brief setting forth its view
of the facts.’’ Jd. Prior to sentencing, the government sub-
mitted to the district court a sentencing memorandum
85a
Appendix A
Opinion of United States Court of Appeals
detailing Corsentino’s crimes and their significance. In the
court’s opinion, Judge Newman wrote that a ‘‘plausible
interpretation’ of the government’s promise in the plea
agreement was that “‘the Government would make no
comment to the sentencing judge, either orally at sentenc-
ing Or in writing prior to sentencing, that bears in any way
upon the type or severity of the sentence to be imposed.’’
Id. at 51. However, we concluded that in light of the refer-
ence the district judge made to the defendant about the
prospect of the government submitting a sentencing mem-
orandum, the defendant must be deemed to have reasona-
bly understood that the government’s promise to ‘‘take no
position’’ did not preclude the filing of such a document.
Id.
In United States v. Diamond, 706 F.2d 105 (2d Cir.
1983), we made clear that our position in Corsentino was
that ‘‘if the Government wishes to refrain only from rec-
ommending a specific sentence, the prosecutor should
make that limited commitment clear and retain the right
‘to present facts and arguments bearing upon sentencing,’
. . . or use Other words to that effect.’’ Id. at 106 (empha-
sis added).
Here, the government did not reserve its right to com-
ment upon the nature of Devardo’s crimes. If it had
wished to reserve such a right, ‘‘it should have stated so
explicitly.”” Carbone, 739 F.2d at 47. Since we are
unaware of any evidence in the record which demonsirates
that Devardo reasonably understood that the government
might comment upon the nature of his crimes in a sentenc-
ing memorandum, we conclude that the government’s sub-
mission of these comments breached the plea agreement.
Cf. United States v. Weinberg, 852 F.2d 681, 687-88 (2d
Cir. 1988) (government’s pre-sentencing submissions to
86a
Appendix A
Opinion of United States Court of Appeals
district court which commented on seriousness of defen-
dant’s crimes did not breach promise to ‘‘make no specific
recommendation with respect to sentencing,’’ when gov-
ernment reserved the right to detail to the court ‘‘the
nature and extent of [the defendant’s] criminal activi-
ties’’).
Although we conclude that the government breached
the plea agreement, ‘‘[a] breach . . . does not automati-
cally require resentencing.’’ United States v. Brody, 808
F.2d 944, 948 (2d Cir. 1986). ‘‘The nature of the remedy
varies with the nature of the broken promise and the facts
of each particular case.’’ Jd. Here, the government did
reserve the right to respond to any arguments Devardo
might make at sentencing, and we are satisfied that the
brief statements the government made about Devardo in
its sentencing memorandum could properly have been pre-
sented to the district court as rebuttal to Devardo’s argu-
ments. Since the government’s statements regarding
Devardo were brief, and since they could properly have
been presented to the court after Devardo presented his
material, we fail to perceive ‘‘any possible prejudicial
effect caused by the prosecutor’s breach.’’ Jd. Therefore,
we deny Devardo’s request for resentencing.
X. Alleged Prosecutorial Misconduct
Casamento claims that his conviction should be vacated
and the indictment dismissed. He presents two arguments
to support this claim. First, he argues that the govern-
ment, during the grand jury proceeding, made only a sum-
mary presentation of the evidence it had against
Casamento, deliberately presented misleading evidence
and deliberately withheld exculpatory evidence. Second,
he argues that the government, in a pre-trial memorandum
87a
Appendix A
Opinion of United States Court of Appeals
to the district court, deliberately misrepresented the evi-
dence it would present at trial in order to induce the court
to deny Casamento’s motion for severance. Having con-
sidered these arguments, we conclude that Casamento’s
arguments lack merit.
A. Grand Jury Proceeding
In arguing that the government acted improperly during
the grand jury proceeding, Casamento contends: that the
government, choosing not to rely on the witnesses and sur-
veillance photographs it presented against him at trial,
made only a summary presentation to the grand jury of
the evidence it had against him; that the government delib-
erately attempted to convey the false impression to the
grand jury that he was involved in a delivery of narcotics
sales proceeds which occurred on November 18, 1980, by
referring to a delicatessen near the place where the delivery
allegedly occurred as the ‘‘Casamento Deli’’; and that the
government acted improperly by failing to present as a
witness one Calogero Petralia, who had previously told
the government that a meeting which he and Casamento
attended—and which the government believed concerned
narcotics—did not in fact concern narcotics.
Before addressing Casamento’s allegations, we note
generally that the dismissal of an indictment following a
conviction is an ‘‘extraordinary’’ remedy. United States v.
Thibadeau, 671 F.2d 75, 77 (2d Cir. 1982). As for Casa-
mento’s first allegation—that the government merely sum-
marized the evidence against him for the grand jury—we
conclude that even if this allegation is true, the indictment
need not be dismissed. An indictment, if valid on its face,
may not be challenged on the ground that it is based on
inadequate evidence. United States v. Contreras, 776 F.2d
88a
Appendix A
Opinion of United States Court of Appeals
Si, 54 (2d Cir. 1985) (citing Costello v. United States, 350
U.S. 359, 363 (1956)).
In considering Casamento’s allegation regarding the
November 18, 1980 delivery, we note that to warrant dis-
missal of an indictment after a conviction, ‘‘the prosecu-
tor’s conduct [must] amount[ ] to a knowing or reckless
misleading of the grand jury as to an essential fact.’’
United States v. Bari, 750 F.2d 1169, 1176 (2d Cir. 1984),
cert. denied, 472 U.S. 1019 (1985). By referring to the deli-
catessen as the ‘‘Casamento Deli,’’ the government did
not knowingly or recklessly mislead the grand jury. The
delicatessen, owned by Casamento’s brother Francesco,
was named ‘‘Cas
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