Opposition Brief — Parlavecchio v. United States

No. 93-1405

——

Jn the Supreme Court of the Cinited States

OCTOBER TERM, 1998

NICHOLAS PARLAVECCHIO AND ANTONINO

PARLAVECCHIO, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

DREW 8S. DAYs, III

Solicitor General

JOANN HARRIS

Assistant Attorney General

MICHAEL E. O'NEILL

Attorney

Departme nt of Justice

Washington, D.C. 20530

(202) 514 217

QUESTIONS PRESENTED

1. Whether the evidence was sufficient to support

petitioners’ convictions for conspiring to possess cocaine

with the intent to distribute it.

2. Whether the evidence was sufficient to support

petitioners’ convictions for attempting to distribute

cocaine.

3. Whether the district court properly admitted cer-

tain recorded conversations in evidence.

4. Whether the district court properly sentenced

petitioners on the basis of a finding that they negotiated

to distribute 30 kilograms of cocaine.

5. Whether the government engaged in “sentencing

entrapment.”

(I)

TABLE OF CONTENTS

Page

ERE Se a eC ee 1

EEE ETL SE LS 1

REISE SS SE Nt ae 2

Argument STS SS ae eee 8

a oe cccmuntnioeeots 22

TABLE OF AUTHORITIES

Cases:

Bourjaily v. United States, 483 U.S. 171 (1987) ............ 16

California v. Green, 399 U.S. 149 (1970) ..........cccccceeeeeeee 16

Commonwealth v. Peaslee, 59 N.E. 55 (Mass. 1901) ....... 11

Glasser v. United States, 315 U.S. 60 (1942) .......0.00...... 7

Huddleston v. United States, 485 U.S. 681 (1988) ......... 14

Idaho v. Wright, 497 U.S. 805 (1990) ........cccccceceeeeeee 15

Jackson v. Virginia, 443 U.S. 307 (1979) ...........0cccccceeeee 9

McMillan v. Pennsylvania, 477 U.S. 79 (1986) .............. 18

Ohio v. Roberts, 448 U.S. 56 (1980) .0.......cccccccccececeeeeeeee 15

Tennessee v. Street, 471 U.S. 409 (1985) .........cccccececeeeee 16

United States v. Barth, 990 F.2d 422 (8th Cir. 1993) .... 20. 21

United States v. Beaulieau, 959 F.2d 375 (2d Cir.

EE i tuiiiilicinsdtcaadddhdeseumsdiaiie BN EET EES a 18

United States v. Bourjaily, 781 F.2d 539 (6th Cir. 1986),

i, UI ss demabiouebebeoces 9

United States v. Cea, 963 F.2d 1027 (7th Cir.), cert.

Me, en 18

United States v. Cohen, 888 F.2d 770 (11th Cir. 1989) .. 14

United States v. Connell, 960 F.2d 191 (1st Cir. 1992) .. 21

United States v. Costa, 691 F.2d 1358 (11th Cir. 1982).. 14

United States v. Cotts, 14 F.3d 300 (7th Cir. 1994) ...... 20

United States v. Delvecchio, 816 F.2d 859 (2d Cir.

a chulisuenivwves 12

United States v. Dworken, 855 F.2d 12 (1st Cir. 1988) . 11

(IIT)

IV

Cases—Continued: Page

United States v. Figueroa, 900 F.2d 1211 (8th Cir.),

cert. denied, 496 U.S. 942 (1990) ............cccccccccssssessseesees ~

United States v. Figueroa, 976 F.2d 1446 (1st Cir. 1992),

cert. denied, 113 S. Ct. 1346 (1998) ..........cccccccccceccescesers 18

United States v. Foley, 906 F.2d 1261 (8th Cir. 1990) ...... 20

United States v. Guerra, 888 F.2d 247 (2d Cir. 1989),

cert. denied, 494 U.S. 1090 (1990) ...........ccceeseceeeseeereeeees 18

United States v. Guerra-Marez, 928 F.2d 665 (5th Cir.),

certs. denied, 112 S. Ct. 322, 443 (1991) ........0.......cceeeeee x

United States v. Gutierrez-Chavez, 842 F.2d 77 (5th Cir.

DENTE ncscaicceiisicnabiecitngpnistsunitaciehiaieienamabaniaiessdsitiaidaenadinctiitiai 13

United States v. Jacobo, 934 F.2d 411 (2d Cir. 1991) ....... 20

United States v. Johnson, 943 F.2d 383 (4th Cir.), cert.

Gua, BEE Bs Gk Ge CRED eecatbirechcctinincstcbccesnwescintens 20

United States v. Jones, No. 93-5320 (4th Cir. Mar. 2,

RR ee Ps ES ee Sees We ne eee NONE 20

United States v. Jordan, 810 F.2d 262 (D.C. Cir.), cert.

Gated, G50 CEE, Bee priitiadictccctectibtesnccittatsdestocsces 13

United States v. Joyc , 693 F.2d 838 (8th Cir. 1982) ........ 11, 12

United States v. Lenfesty, 923 F.2d 1293 (8th Cir.), cert.

denied, 499 U.S. 968 (1991) ..............ceeeeee Seiiiediibiiiiamiaes 21

United States v. Manley, 632 F.2d 978 (2d Cir. 1980),

cert. denied, 449 U.S. 1112 (1981) .........ccccccrsereseseccocceeee 11

United States v. McCowz:, 711 F.2d 1441 (9th Cir.

ie. ssoage coninadiabmoelt 8

United States v. Melchor-Lepez, 627 F.2d 886 (9th Cir.

I i aie a dideigeadiab ieee, 10

United States v. Miele, 989 F.2d 659 (3d Cir. 1993) ......... 20

- United States v. Moreno, 899 F.2d 465 (6th Cir. 1990) .... 18

United States v. Nichols, 750 F.2d 1260 (5th Cir. 1985) .. 14

United States v. Owens, 484 U.S. 554 (1988) ................... 16

United States v. Paiva, 892 F.2d 148 (1st Cir. 1989) ....... ~

United States v. Percy, 765 F.2d 1199 (4th Cir. 1985) ..... 14

United States v. Pumphrey, 831 F.2d 307 (D.C. Cir.

TI aiicouass danctiusddimnsténsiaehciemetetiebaaandiedaceibbiealansnantdectanss 8

Cases—Continued: Page

United States v. Reyes, 930 F.2d 310 (3d Cir. 1991)......... 20

United States v. Richardson, 764 F.2d 1514 (11th Cir.),

cert. denied, 474 U.S. 952 (1985) ............:ccccccscersceceveeees 14

United States v. Richardson, 939 F.2d 135 (4th Cir.),

certs. denied, 112 S. Ct. 599 (1991), 112 S. Ct. 942

GT seaiiteticishtabdiitanatrssodasepaienibintingiiiititiiniaiaindie nla aie Nae 20

United States v. Riles, 928 F.2d 339 (10th Cir. 1991)....... 21

United States v. Rodriguez, 896 F.2d 1031 (6th Cir.

DIIUE) ndsceendensrdhtepisgnisetnanbahchebhtadasicnibanapioaieententncabespimmions 18

United States v. Rogers, 982 F.2d 1241 (8th Cir.), cert.

Gonied, 113 SB. Ct. SOIT (198B) ...ccccceccocorsvceceserseserccesoosese 20, 21

United States v. Shabani, 993 F.2d 1419 (9th Cir. 1993),

cert. granted, 114 S. Ct. 1047 (1994) ..........c eeeeeeeeeeeeeees a

United States v. Sharif, 817 F.2d 1375 (9th Cir. 1987) .... 10

United States v. Stuart, 923 F.2d 607 (8th Cir.), certs.

denied, 499 U.S. 967, 112 S. Ct. 145 (1991) 0.00.00. 21

United States v. Tate, 821 F.2d 1328 (8th Cir. 1987),

cert. denied, 484 U.S. 1011 (1988) ............ccccccseeseceeeeeees 14

United States v. Urrego-Linares, 879 F.2d 1234 (4th Cir.),

cert. denied, 493 U.S. 943 (1989) .0.......0...c.ccccceseeeeeeeeeee 18

United States v. Walton, 908 F.2d 1289 (6th Cir.), certs.

OE Re ee 18

United States v. Webster, 750 F.2d 307 (5th Cir. 1984),

certs. denied, 471 U.S. 1106 (1985) ....0...... cece eeeeeeeeeees 14

United States v. Whitman, 771 F.2d 1348 (9th Cir.

ED dibdesctbddebicnsredentdbenniantdaidaaiiidiss Ainaladianédindddielaéeis 13

United States v. Williams, 954 F.2d 668 (11th Cir.

IED aicadbadadnushinatinnDieiehimeciarntea te La mea es oe 21

Constitution, statutes and regulations:

U.S. Const. Amend. VI (Confrontation Clause) ............... 15, 16

I id el 2

| ELT SETTER NOE Pe 2

I 2

| ae EC A ale Se eee a a 2

I a a ea 2

Be IEE ciictticoncacaubuniéctiaukasadesmmuborsnunssenadenase 18

VI

Statutes and regulations—Continued: Page

BF, ES wa AAI Te 2

BRR SERRE NE Sen ie aoe ee ean 2

air enT ITI Casslich Oo escnitendnichetdnanddiial ueabusumuebtbaeniesdainon 2, 8, 9, 10

Fed. R. Crim. P.:

STINET Ith ieidcstuetbadicbedmionniadiiidtinanesitiededi sade nabidenl 16

ee A ern ee 16

Fed. R. Evid.:

| LER aN ee Re ae 14

ETE AE ae ee Ra 15

SEE SES OI SE TE Tce 16

TTT LLC TT Te ae 13

a ee II ee 13

Sentencing Guidelines (Nov. 1, 1991):

tN a Te ee Le Nn 7

Rn a 2 a mM ase EP 17, 18

§ 2D1.4, Application Note 1 ...........cccccccccceceecceceeeeeeeeees 18

I i a 7

Sentencing Guidelines (Nov. 1, 1992):

ee ae 18

Miscellaneous:

American Law Institute, Model Penal Code (1985) .......... 11

United States Sentencing Comm'n, Guidelines Manual

SUPTU sls UIE cuietaktninaiicgspemdbibeaneounsamsessontianeebidaneapananunesiente 17, 18

Gn the Supreme Court of the United States

OCTOBER TERM, 1993

No. 93-1405

NICHOLAS PARLAVECCHIO AND ANTONINO

PARLAVECCHIO, PETITIONERS

v.

~

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The judgment orders of the court of appeals, Pet.

App. 3a-5a, 6a-8a, are unreported.

JURISDICTION

The judgments of the court of appeals were entered

on October 18, 1993. A petition for rehearing was

denied on December 7, 1993. Pet. App. la-2a. The

petition for a writ of certiorari was filed on March 7,

1994. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

(1)

STATEMENT

Following a jury trial in the United States District

Court for the District of New Jersey, petitioners

were convicted of conspiring to conduct an enterprise

through a pattern of racketeering activity, in viola-

tion of 18 U.S.C. 1962(d); conducting an enterprise

through a pattern of racketeering activity, in viola-

tion of 18 U.S.C. 1962(c); conspiring to possess

cocaine with the intent to distribute it, in violation of

21 U.S.C. 846; attempting to distribute cocaine and to

possess cocaine with intent to distribute it, in viola-

tion of 21 U.S.C. 846; possessing cocaine with intent

to distribute it, in violation of 21 U.S.C. 841(a)(1);

using a telephone in furtherance of a cocaine conspir-

acy, in violation of 21 U.S.C. 843(b); conspiring to

counterfeit credit cards, in violation of 18 U.S.C.

1029(b)(2); trafficking in counterfeit credit cards, in

violation of 18 U.S.C. 1029(a)(1); and wire fraud, in

violation of 18 U.S.C. 1343. Pet. App. 15a-18a, 28a-31a.

The district court sentenced Nicholas Parlavecchio

to a total of 210 months’ imprisonment, to be followed

by five years’ supervised release. /d. at 32a-34a. The

court sentenced Antonino Parlavecchio to a total of

168 months’ imprisonment, to be followed by five

years’ supervised release. /d. at 19a-2la. The court of

appeals affirmed. /d. at 3a-5a, 6a-8a.

1. The evidence at trial showed that petitioners

engaged in a conspiracy to distribute cocaine and to

obtain money and property by means of false pre-

tenses. In late 1988, Nicholas Parlavecchio loaned

Hamilton Campos $7,500 in order to help finance a

conspiracy to import heroin from Brazil and sell it in

the United States. Some of the heroin was sold and

Campos repaid some of the money, but he did not sell

3

the rest of the heroin and still owed Nicholas approx-

imately $3,700. Gov’t C.A. Br. 5-6.

Campos later contacted Nicholas and Antonino

Parlavecchio, explaining that he would repay the

outstanding debt to Nicholas from profits obtained

from planned cocaine sales. Campos devised a scheme

to import cocaine from Brazil and to distribute it in

the United States and Italy. In May 1989, Campos

attempted to recruit Erastro Campos Filho and

Ricardo Valente, who were in Brazil, to help him.

Hamilton Campos discussed the plan with the

Parlavecchios using the code words “car wash,”

“brushes,” and “rollers” to refer to kilograms of

cocaine.' Antonino and Campos discussed importing

seven kilograms of cocaine into the United States,

with the Parlavecchios planning to act as brokers.

Nicholas introduced Campos to one “J.R.,” who was

interested in purchasing 125 grams of cocaine, and

Antonino asked to be given an opportunity to invest in

any deal Campos made with “J.R.” Nicholas also

agreed to negotiate with a potential Italian cocaine

buyer. After contacting the individual, Nicholas re-

ported to Campos that the requested price was too

high. Campos instructed Nicholas to get a counter-

offer, which he agreed to do. Gov’t C.A. Br. 6.

On June 30, 1989, Campos was arrested and subse-

quently agreed to cooperate with the police in their

ongoing investigation of the Parlavecchios. On

July 1, 1989, Campos telephoned Nicholas and, using

1 Nicholas Parlavecchio owned a car wash in Newark, New

Jersey. In May 1989, law enforcement officers obtained a

wiretap on both the car wash and Nicholas’s residence. The

conversations described in the text were recorded and the

audio tapes were introduced at trial. Gov’t C.A. Br. 3, 5.

the familiar “car wash” code, told him that 60

kilograms of cocaine were available. The

Parlavecchios again sought to play the role of broker.

Campos told Nicholas that the 60 kilograms would

cost $12,000 per kilo, and Nicholas said he had a

contact who would take the cocaine in Spain, or “here,

if the price was right.” Gov’t C.A. Br. 7.

The following morning, July 7, 1989, Nicholas told

Antonino to talk to an Andrew Giovinazzo, who was in

Florida, about the “60-12”—the 60 kilograms of

cocaine at a unit price of $12,000. A few hours later,

Giovinazzo called from Florida and offered $11,000 per

kilogram and requested one week’s advance credit.

Nicholas reported the offer to Campos. Campos,

however, said that he wanted $12,000 cash, and would

not sell on credit. Nicholas and Campos agreed to

split the $1,000-per-kilo profit if the cocaine were sold

for $12,000. Nicholas said he would try to interest

Giovinazzo “once more with that,” and that he had

other “people who were interested” in the drugs.

Gov't C.A. Br. 7-8.

Over the next few days, the conspirators had a

number of telephone conversations. On July 11, 1989,

Nicholas told Campos that a deal in Spain was “solid,”

but that he didn’t think the deal for “here” would

happen. Later that same day, Nicholas told Campos

that he would find out Giovinazzo’s “bottom figure.”

Campos subsequently agreed to sell the cocaine to

Nicholas’s buyers for $11,000. Gov’t C.A. Br. 7-8.

On July 20, 1989, at 10:24 a.m., Nicholas told Campos

that he had a “definite thing,” but asked if it could be

in “2s or 3s,” 7.e., lots of two or three kilograms,

rather than “tens and twenties,” and told Campos that

he would confirm the details by 1:00 p.m. After

4

5

speaking with Giovinazzo, Nicholas informed Campos

that “[w]Je’ll take 10,” and that he wanted to consum-

mate the deal “down there,” referring to Florida.

Gov’t C.A. Br. 8.

On July 24, 1989, Nicholas told Campos that they

needed five “here” (in New Jersey) and ten “down

there” (in Florida). Campos said that Florida was

“too hot,” referring to law enforcement activity, and

told Nicholas to ask Giovinazzo if he could pick up the

cocaine in New Jersey. On July 25, Nicholas informed

Campos that Giovinazzo wanted to look at one kilo-

gram of cocaine. Nicholas told Campos that if they

looked at “one” and thought it was “quality, we’ll sell

10 right away to each guy, three different guys,” but

that Campos had to “show” the cocaine. Campos

balked at that, indicating that they “won’t let him go

with one.” Gov’t C.A. Br. 8.

On July 27, 1989, Nicholas informed Campos that

there was “the potential for 30” (i.e., 30 kilograms of

cocaine), but that “if [Giovinazzo] don’t see it, they’re

not gonna move.” Nicholas explained that Daniel

Dellisanti, who worked with Giovinazzo, agreed to

examine the cocaine in New Jersey. Nicholas added

that Dellisanti is the one who “determines and tells

the guy down there [Giovinazzo] that it’s okay, and

then there’ll be, there’ll be a thirty.” Campos then

confirmed that “three” could be done immediately, to

which Nicholas responded, “What three? Thirty.”

Nicholas added that the buyers no longer wanted

credit, but “they want[ed] to look.” Gov’t C.A. Br. 9.

Campos, Dellisanti, and the Parlavecchios agreed

to meet at the car wash, and Campos promised to

bring a kilogram of cocaine to show Dellisanti. When

Campos, accompanied by Roy Diaz, an undercover

6

Drug Enforcement Administration (DEA) agent,

arrived at the car wash, Dellisanti was not present.

Nicholas instructed them to leave the cocaine with

him and he would show it to Dellisanti. Campos

refused, because he was not authorized to relinquish

control of the sample. After Dellisanti returned,

Nicholas explained the situation to him, and

Dellisanti left without meeting Campos or seeing the

cocaine. Gov't C.A. Br. 10-11.

Campos then called Nicholas for an explanation.

Nicholas stated that Dellisanti was suspicious

because Campos could not release a sample and had

brought a stranger (Diaz) with him. Nicholas ex-

pressed skepticism that Giovinazzo would go through

with the purchase. Campos then obtained the DEA’s

permission to release a small sample of cocaine. On

August 9, 1989, Campos told Antonino to tell Nicholas

that the sample was available. Antonino explained

that Nicholas was away, but that he could “handle

whatever it is.” Gov’t C.A. Br. 11-12.

On August 17, 1989, Campos delivered a two-gram

cocaine sample to Antonino, who subsequently turned

it over to Nicholas. Campos told Antonino to tell

Nicholas to move fast, because there were 32 kilos of

cocaine left. Antonino replied that doing the transac-

tions “this week” would be “no problem.” Later that

same day, Nicholas informed Campos that the

potential buyer had said the sample was “not quality”

and refused to go through with the deal. Negotiations

were subsequently discontinued. Gov’t. C.A. Br. 12.”

2 The evidence relating to wire fraud and conspiracy to

counterfeit credit cards (summarized at Gov’t C.A. Br. 12-15)

is unrelated to this petition.

7

2. At sentencing, the district court rejected the

probation office’s recommendation that the conspir-

acy to distribute involved ten kilograms of cocaine.

Instead, the court found, by a preponderance of the

evidence, that the proposed cocaine transaction in-

volved 30 kilograms. VIII Pet. C.A. App. A1889. The

court noted that Nicholas Parlavecchio referred to 30

kilograms of cocaine in discussing the transaction

and that Nicholas stated that the conspirators could

sell ten kilograms to each of three different people.

Accordingly, the court found that it was “unequiv-

ocally 30 kilograms” of cocaine under discussion.

Tbid.

The court thus calculated Nicholas’s base offense

level to be 34. See Sentencing Guidelines § 2D1.1

(c)(5) (15 to 50 kilograms of cocaine). The court

refused to make a two-point upward adjustment in the

offense level for the firearm found at Nicholas’s car

wash, but did add two points because Nicholas was

shown to be the “organizer or leader” of criminal

activity involving fewer than five participants. VIII

Pet. C.A. App. A1891; see Sentencing Guidelines

§ 3B1.1(c). The adjusted offense level of 36, combined

with a Criminal History Category I, yielded a Guide-

lines sentencing range of 188 to 235 months’ impris-

onment with fines ranging from $20,000 to $4,000,000.

The court found that Nicholas had insufficient

financial resources to warrant a fine, but sentenced

him to a total of 210 months’ imprisonment. Pet. App.

32a-55a.

With respect to Antonino Parlavecchio, the court

used the same base offense level of 34, but did not

make any adjustments. Combined with a Criminal

History Category I, Antonino had a Guidelines

8

sentencing range of 151 to 188 months’ imprisonment

and a fine range of $17,500 to $4,000,000. The court

waived the fine, and sentenced Antonino to a total of

168 months’ imprisonment. Pet. App. 19a-20a.

Each petitioner raised the same seven claims on

appeal. The court of appeals affirmed without opinion.

Pet. App. 3a-5a, 6a-8a.

ARGUMENT

1. Petitioners contend that the evidence was insuf-

ficient to support their convictions fer conspiring to

distribute cocaine. Pet. 10-14. That contention war-

rants no further review.

To obtain a conviction for drug conspiracy under

21 U.S.C. 846, the government must prove that the

defendant agreed with another person to traffic in

drugs and that the defendant and another person each

knew of, and participated in, the conspiracy. See, e.g.,

United States v. Guerra-Marez, 928 F.2d 665, 674 (5th

Cir.), certs. denied, 112 S. Ct. 322, 443 (1991). Section

846 does not require proof of an overt act. See, e.g.,

United States v. Figueroa, 900 F.2d 1211, 1218 (8th

Cir.), cert. denied, 496 U.S. 942 (1990); United States

v. Paiva, 892 F.2d 148, 155 (1st Cir. 1989); United

States v. Pumphrey, 831 F.2d 307, 308-309 (D.C. Cir.

1987); United States v. McCown, 711 F.2d 1441, 1450

(9th Cir. 1983); but see United States v. Shabani, 993

F.2d 1419 (9th Cir. 1993), cert. granted, 114 S. Ct. 1047

(1994) (No. 93-981). Circumstantial evidence is suffi-

cient to prove both the existence of an agreement and

the defendant’s knowledge of the conspiracy. See

Glasser v. United States, 315 U.S. 60, 80 (1942);

United States v. Guerra-Marez, 928 F.2d at 674.

The government’s evidence was sufficient to allow a

reasonable jury to find petitioners guilty of conspir-

. —

9

ing between themselves to broker a major cocaine

sale. Campos was to be the seller and Giovinazzo the

buyer, with Dellisanti, acting on Giovinazzo’s behalf,

to test the drugs. The agreement between Nicholas

and Antonino is clear from the coordinated steps they

took in seeking to broker the deal. Nicholas negoti-

ated the price of the cocaine down to $11,000 per

kilogram. Nicholas later told Campos that he had

found two additional buyers who wanted ten

kilograms each. Both petitioners arranged for

Campos to show Dellisanti a sample of the cocaine.

Antonino took a two-gram sample from Campos,

stating that it would be “no problem” to sell 32

kilograms that week. The amount of cocaine under

negotiation—30 kilograms—was also large enough to

lend additional support to an inference of conspiracy.

See United States v. Bourjaily, 781 F.2d 539, 545 (6th

Cir. 1986) (explaining that one kilogram of cocaine is

“(a] large volume of narcotics [which] creates an

inference of a conspiracy”), aff’d, 483 U.S. 171 (1987).

Viewed in the light most favorable to the government,

see Jackson v. Virginia, 443 U.S. 307, 319 (1979), the

evidence suffices to support the conspiracy con-

victions.’*

%’ There is no reason for the Court to hold the petition

pending resolution of United States v. Shabani, No. 93-981

(cert. granted Feb. 22, 1994). Even if proof of an overt act

were required under 21 U.S.C. 846, contrary to our submission

in Shabani, it would not assist petitioners. Petitioners were

shown to have taken several concrete steps in furtherance of

their cocaine-distribution conspiracy, and that proof would

satisfy the overt-act requirement, if it were applicable. Indeed,

petitioners do not contend that proof of an overt act was

missing; they argue only that their agreement was too indefi-

nite to establish a conspiracy. Pet. 10-14.

10

Petitioners contend that the evidence is insuffi-

cient because the government failed to prove “the

quantity of drugs to be supplied, the price to be paid

for the drugs, the place for the delivery of the drugs,

[and] the time for such delivery.” Pet. 12; see Pet. 10,

14. Quantity, price, place, and time are not, however,

elements of a Section 846 conspiracy, and United

States v. Melchor-Lopez, 627 F.2d 886 (9th Cir. 1980),

on which petitioners rely, did not hold that such proof

is required. See United States v. Sharif, 817 F.2d

1375, 1377-1379 (9th Cir. 1987) (rejecting interpreta-

tion of Melchor-Lopez as requiring proof of quantity,

price, place, and time). The Melchor-Lopez standard

for conspiracy is fully consistent with the standard

applied by the Third Circuit in this case.‘

2. Petitioners contend that the court of appeals

adopted a standard for determining whether they had

taken a “substantial step” for purposes of the attempt

count that conflicts with the approach taken by other

circuits. Pet. 14-16. The circuits are in agreement,

however, on the legal standard governing criminal

attempt. To support a conviction, the government

must prove that the defendant (1) intended to engage

4 Petitioners’ analogy between the facts here and in

Melchor-Lopez also is flawed. In Melchor-Lopez, no two alleged

conspirators ever came to any agreement. The potential

supplier would not agree with the broker to bring the drugs

into the United States, 627 F.2d at 888-889, and the potential

broker and the buyer never had any “mutual understanding to

accomplish a specific objective” or “intention to be bound by

any agreement.” I/d. at 889-890. Here, in contrast, although

the 30-kilogram drug sale was never consummated, petitioners

did agree among themselves to facilitate the sale, and their con-

spiracy was not dependent upon Giovinazzo’s willingness to

buy.

11

in the substantive offense with which he is charged;

and (2) took a “substantial step” toward committing

that offense. See, e.g., United States v. Dworken, 855

F.2d 12, 16-17 (Ist Cir. 1988); United States v.

Manley, 632 F.2d 978, 987 (2d Cir. 1980), cert. denied,

449 U.S. 1112 (1981). The determination of what

constitutes a “substantial step” is often “a question

of degree,” United States v. Joyce, 693 F.2d 838, 841

(8th Cir. 1982) (quoting Commonwealth v. Peaslee, 59

N.E. 55, 56 (Mass. 1901)), that turns on “the factual

circumstances peculiar to each case,” 693 F.2d at 841.

Petitioners’ quarrel is with the jury’s conclusion,

based on the evidence, that they took a “substantial

step.” They seek to draw an analogy between their

case and the facts of United States v. Joyce, supra.

Pet. 15-16. The Eighth Circuit in Joyce reversed an

attempt conviction because the defendant had commit-

ted no act that “passed the preparation stage so that if

it is not interrupted extraneously, it will result in a

crime.” 693 F.2d at 841-842. The defendant in Joyce,

carrying $22,000, met with government agents posing

as drug dealers and expressed an interest in buying a

pound of cocaine for $20,000. When he refused to show

the agents the money, and they accordingly refused to

show him the cocaine, the defendant left, “with no

® There is no federal statute prescribing the elements of an

attempt. Most federal courts apply the definition of a criminal

attempt set forth in the Model Penal Code, which provides that

a person is guilty of an attempt to commit a crime if he

“purposely does or omits to do anything that, under the

circumstances as he believes them to be, is an act or omission

constituting a substantial step in a course of conduct planned to

culminate in his commission of the crime.” American Law

Institute, Model Penal Code § 5.01(1)(c) (1985).

12

apparent intention of returning at a later time.” /d.

at 844).

Petitioners, in contrast, passed the mere “prep-

aration stage” and engaged in a criminal attempt to

distribute cocaine. Petitioners negotiated with

Giovinazzo to purchase cocaine. They arranged for

Campos to come to the car wash with a one-kilogram

cocaine sample. Unlike the defendant in Joyce who

“unambiguously refused * * * to purchase the

cocaine,” 693 F.2d at 842, Nicholas pressed Campos to

leave the sample so that it could be shown to the

potential buyer, and twice summoned Dellisanti so

that he would be available to inspect the sample.

Antonino ultimately received a two-gram sample from

Campos. Petitioners went far beyond “mere prep-

aration” by actively seeking to distribute the cocaine

and were frustrated in their attempt only by

Campos’s refusal to release a sample earlier. There

is thus no issue that warrants further review.®

3. Petitioners contend that the district court

erred in allowing the government to introduce

wiretapped telephone conversations between Campos

and petitioners, and between Campos and Ricardo

Valente and Erastro Campos Filho. Pet. 16-22.

During those conversations, Hamilton Campos

sought to arrange the transportation of Brazilian

cocaine to the United States and Italy, at least in part

to obtain money to repay a debt to Nicholas for

6 Petitioners’ reliance on United States v. Delvecchio, 816

F.2d 859 (2d Cir. 1987), is equally unpersuasive. While the

court acknowledged the difficulty of determining what consti-

tutes a “substantial step,” the court did not articulate any

standard that, if applied here, would aiter the result in this

case.

13

financing the earlier heroin transaction. IX Pet. C.A.

App. 1945-2031. Petitioners claim the recorded con-

versations were inadmissible hearsay, constituted an

attempt to prove character by prior bad acts, and

violated their confrontation and due process rights.

Pet. 16-22.’ They also assert that the district court

failed properly to instruct the jury that Campos

became a government informant in July 1989, and that

his statements made after that time should thus not

have been considered as co-conspirator statements ad-

mitted for their truth. Pet. 19, None of these

contentions warrants review.

a. None of the conversations occurring before

July 1, 1989, is inadmissible hearsay. The con-

versations between Campos and petitioners are

admissible in their entirety. A party’s own statement

is, of course, not hearsay. Fed. R. Evid. 801(d)(2)(A).

Campos’s statements to petitioners are admissible to

place petitioners’ utterances in context. See United

States v. Gutierrez-Chavez, 842 F.2d 77, 81 (5th Cir.

1988); United States v. Jordan, 810 F.2d 262, 264 (D.C.

Cir.), cert. denied, 481 U.S. 1032 (1987); United States

v. Whitman, 771 F.2d 1348, 1352 (9th Cir. 1985).

The conversations between Campos and Valente

and Campos and Erastro Campos were also properly

admitted. They were offered not for their truth, but

to demonstrate that petitioners were motivated to

enter the cocaine conspiracy to obtain repayment of

the loan Nicholas made to Campos. Fed. R. Evid.

803(3). By showing petitioners’ willingness to

7 Petitioners do not specify which conversations they find

objectionable; they merely object to tape recordings “made in

May 1989, and on other dates preceding July 1, 1989” (Pet. 16),

and at least some “post-June 30, 1989” statements (Pet. 19).

14

discuss participation in heroin distribution, these

conversations also helped to rebut petitioners’

defense that they were manipulated into illegal

activity by federal agents. These telephone calls

were interspersed with calls between Campos and

petitioners, and because the party conversations were

often unintelligible without information about the

intervening discussions, they are also admissible to

place the party statements in context.

There is no merit to petitioners’ contention that

the wiretapped telephone conversations were evidence

of prior bad acts inadmissible under Federal Rule of

Evidence 404(b). See Pet. 16-18. Because the conver-

sations regarding the heroin conspiracy were proba-

tive of motive and rebutted petitioners’ defense, they

were not improperly “offered solely to prove charac-

ter.” Huddleston v. United States, 485 U.S. 681, 687

(1988). See United States v. Cohen, 888 F.2d 770, 776

(11th Cir. 1989); United States v. Percy, 765 F.2d 1199,

1204 (4th Cir. 1985). The conversations described the

circumstances leading up to the cocaine distribution

conspiracy, and were therefore also admissible as an

“integral and natural part of the witness’s accounts of

the circumstances surrounding the offenses for

which the defendant was indicted.” United States v.

Richardson, 764 F.2d 1514, 1521 (11th Cir.) (quoting

United States v. Costa, 691 ¥.2d 1358, 1361 (11th Cir.

1982)), cert. denied, 474 U.S. 952 (1985). See also

United States v. Tate, 821 F.2d 1328, 1331 (8th Cir.

1987), cert. denied, 484 U.S. 1011 (1988); United States

v. Webster, 750 F.2d 307, 336 (5th Cir. 1984), certs.

denied, 471 U.S. 1106 (1985); United States v. Nichols,

750 F.2d 1260, 1264-1265 (5th Cir. 1985).

15

The district court specifically weighed the proba-

tive value of the wiretaps against their prejudicial

potential and found that “given the standard enunci-

ated by [Federal Rule of Evidence] 401, these items

certainly are admissible. * * * [T]hey are offered for

relevant purposes and I cannot find that there is a

valid [Federal Rule of Evidence] 403 objection.” I Pet.

C.A. App. 066. The district court limited the wiretap

evidence by admitting portions that were closely

related to the crimes charged, while excluding other

portions as irrelevant. /d. at 067-076."

b. There is no merit to petitioners’ claim that

their rights under the Sixth Amendment’s Con-

frontation Clause were violated. The Confrontation

Clause guarantees that “[iJn all criminal prose-

cutions, ‘the accused shall enjoy the right * * * to be

confronted with the witnesses against him.” In /daho

v. Wright, 497 U.S. 805 (1990), this Court reaffirmed

the rule that an out-of-court statement made by an

unavailable declarant may be admitted in evidence

without infringing the defendant’s confrontation

rights if the statement possesses sufficient indicia

of reliability to justify dispensing with cross-

examination of the declarant. /d. at 814-815; see Ohio

v. Roberts, 448 U.S. 56 (1980). Reliability concerns

are satisfied, without more, where a challenged

statement fits within a firmly rooted hearsay

exception. See Idaho v. Wright, 497 U.S. at 815;

* Petitioners also argue that admission of the recorded

conversations violated Federal Rule of Evidence 608(b), which

precludes the use of extrinsic evidence to support a witness’s

credibility. Pet. 20-21. Evidence that is relevant for some

other purpose is not barred because it may incidentally corrob-

orate a witness’s truthful testimony.

16

Bourjaily v. United States, 483 U.S. 171, 182-183

(1987).

Petitioners did not dispute the trustworthiness of

the recorded conversations in the district court, and

so cannot now argue that their confrontation rights

were violated. In any event, Valente and Erastro

Campos’s recorded statements were not hearsay as

defined by Federal Rule of Evidence 801, and thus do

not implicate the Confrontation Clause. See Ten-

nessee v. Street, 471 U.S. 409, 413-414 (1985). More-

over, Hamilton Campos, who participated in all of the

recorded conversations, testified at trial and was

subject to vigorous cross-examination. Not only did

that diminish any conceivable trustworthiness ob-

jection to introduction of the tapes, see California v.

Green, 399 U.S. 149 (1970), it eliminated any

Confrontation Clause objection to Hamilton Campos’s

statements. United States v. Owens, 484 U.S. 554, 560

(1988).

c. Petitioners also contend that the district court

erred in failing to instruct the jury that Campos was

a government informant as of July 1, 1989, and that it

was therefore legally impossible for him to have been

a co-conspirator after that date. Petitioners argue

that the jury might have considered Campos’s post-

July 1 statements for their truth, or have based its

conspiracy verdict on a finding that petitioners con-

spired with Campos, rather than with one another.

Pet. 18-20.

Petitioners waived that objection by failing to

request the instruction before the charge was read,

and then failing to object after hearing the court’s

instructions. See Fed. R. Crim. P. 30. Petitioners’

OO ee ee eee ee ay ny

17

claim is thus reviewable only for plain error. Fed. R.

Crim. P. 52(b). There was no such error here, in light

of Campos’s own unambiguous admission that he had

been cooperating with the government since July

1989, see III Pet. C.A. App. A0543(A)(222)-

A0543(A)(224), and the district court’s jury instruc-

tion clearly explaining that it is not possible to

conspire with a person acting on behalf of the

government because that person cannot have the

requisite criminal intent.°

4. Petitioners next argue that the sentencing

court erred in calculating their respective offense

levels under the Sentencing Guidelines on the basis of

30 kilograms of cocaine. Petitioners contend that

they never intended to distribute that amount of

cocaine and that, in any event, they did not have the

finances to complete such a transaction. Pet. 22-27.

That factbound claim does not warrant further

review.

There is no conflict as to the applicable legal

standards. Prior to November 1, 1992, Sentencing

Guidelines § 2D1.4 set the base offense level for con-

spiracies involving controlled substances.” Section

2D1.4 provided that the offense level for a defendant

* The court instructed that “a person may not conspire with

a Government agent or law enforcement person, or someone

acting on behalf of the Government, because such a person

would not have the records of [sic] criminal intent to enter into

an illegal agreement.” VII Pet. C.A. App. A1645.

' Effective November 1, 1992, the Sentencing Commission

deleted Guidelines § 2D1.4 and amended the Guidelines for

controlled substance offenses to include conspiracies. See

United States Sentencing Comm'n, Guidelines Manual App. C,

amend. 447, at 731 (Nov. 1, 1992).

18

convicted of conspiracy “shall be the same as if the

object of the conspiracy * * * had been completed.”

The commentary to Guidelines § 2D1.4 provided that

if a defendant was convicted of an offense involving

negotiation to traffic in a controlled substance, “the

weight under negotiation in an uncompleted distribu-

tion shall be used to calculate the applicable amount,”

unless the defendant lacked the intent and ability to

deal in the negotiated amount.'' The sentencing court

determines the “applicable amount” under a

preponderance of the evidence standard,” and its

estimate is subject to review only for clear error.”

The district court’s finding that petitioners con-

spired to possess 30 kilograms of cocaine with the

'' Prior to November 1, 1992, that commentary was con-

tained in Application Note 1 to Guidelines § 2D1.4._ Effective

November 1, 1992, the quoted commentary was transferred

verbatim to Application Note 12 to Guidelines § 2D1.1. See

United States Sentencing Comm'n, Guidelines Manual App. C,

amend. 447, at 732-733 (Nov. 1, 1992).

' See United States v. Moreno, 899 F.2d 465, 473 (6th Cir.

1990); United States v. Guerra, 888 F.2d 247, 250-251 (2d Cir.

1989), cert. denied, 494 U.S. 1090 (1990); United States v.

Urrego-Linares, 879 F.2d 1234, 1237-1238 (4th Cir.), cert.

denied, 493 U.S. 943 (1989); United States v. Walton, 908 F.2d

1289, 1300 (6th Cir.), certs. denied, 498 U.S. 906, 989, 990

(1990); see also McMillan v. Pennsylvania, 477 U.S. 79, 91-93

(1986) (rejecting clear and convincing standard for sentencing,

and explaining that sentencing courts traditionally find facts

without reference to any particular burden of proof).

'S See 18 U.S.C. 3742(e); United States v. Figueroa, 976 F.2d

1446, 1461 (1st Cir. 1992), cert. denied, 113 S. Ct. 1346 (1993);

United States v. Cea, 963 F.2d 1027, 1030 (7th Cir.), cert.

denied, 113 S. Ct. 281 (1992); United States v. Beaulieau, 959

F.2d 375, 379 (2d Cir. 1992); United States v. Rodriguez, 896

F.2d 1031, 1034 & n.2 (6th Cir. 1990).

19

intent to distribute it is amply supported by the

record. In telephone conversations between Campos

and Nicholas Parlavecchio, Campos originally told

Nicholas that 60 “cases,” i.e., kilograms, of cocaine

were uvailable. During a conversation on July 20,

1989, Nicholas told Campos “we’ll take ten,” referving

to ten kilograms to be sold, through petitioners, to

Giovinazzo. IX Pet. C.A. App. 2087-2089. Petitioners

point to Nicholas’s later comments that he wanted

“[mjaybe a 2 or 3 here that I could possibly,” or

“[mlaybe 5, I don’t know,” as evidence that a much

smaller quantity was under negotiation, Pet. 6-7, 24-

25, but ignore the fact that Nicholas was referring to

obtaining the amounts “here” (in New Jersey), in

addition to the ten “down there” (in Florida), IX Pet.

C.A. App. 2087-2088, 2091-2095, and that those conver-

sations took place before additional amounts were

negotiated. On July 25, 1989, Nicholas told Campos

that there were now two additional buyers for ten

kilograms apiece. Nicholas explained that if the

cocaine’s quality were satisfactory, they would sell

ten kilograms to each of three different people. /d. at

2105. Two days later, Nicholas again relayed to

Campos that the amount would be 30 kilograms: when

Campos referred to a figure of three, Nicholas

corrected him, declaring “What three? Thirty.” Jd.

at 2135.

On the basis of these conversations, the district

court concluded by a preponderance of the evidence

that petitioners were not “puffing” and intended to

distribute at least 30 kilograms of cocaine if the

quality were acceptable to the buyers. VIII Pet. C.A.

App. A1889. The court similarly rejected petitioners’

argument that they lacked the financial resources to

20

consummate the deal because, as brokers for the sale,

petitioners were not required to advance any money.

Id. at A1879."

5. Petitioners argue that the courts below erred in

rejecting the doctrine of “sentencing entrapment” as

a basis for a downward departure from their

Guidelines sentencing range. Pet. 27-29. Petitioners

contend that they were sentenced based on dis-

cussions about “enormously elevated” quantities of

drugs that were initiated by Campos, the government

informant, “solely * * * for the purpose of elevating

any potential sentence they could receive, if con-

victed.” Pet. 29.

Several courts have recognized, at least in theory, a

doctrine of “sentencing entrapment.” £.g., United

States v. Jones, No. 93-5320 (4th Cir. Mar. 2, 1994) (to

be reported at 18 F.3d 1145), slip op. 13-19; United

States v. Cotts, 14 F.3d 300, 304-306 & n.2 (7th Cir.

1994); United States v. Barth, 990 F.2d 422, 424-425

(8th Cir. 1993); United States v. Rogers, 982 F.2d 1241,

14 Petitioners rely (Pet. 26 & n.5) on United States v. Miele,

989 F.2d 659 (3d Cir. 1993); United States v. Johnson, 943 F.2d

383, 387-388 (4th Cir.), cert. denied, 112 S. Ct. 667 (1991);

United States v. Richardson, 939 F.2d 135, 142 (4th Cir.),

certs. denied, 112 S. Ct. 599 (1991), 112 S. Ct. 942 (1992); United

States v. Jacobo, 934 F.2d 411, 416-418 (2d Cir. 1991); United

States v. Reyes, 930 F.2d 310, 314-316 (3d Cir. 1991); and

United States v. Foley, 906 F.2d 1261 (8th Cir. 1990). None of

those cases sets forth an interpretation of the Guidelines that is

at odds with that employed by the court in this case. In each of

those cases, the court either failed to make any findings

regarding quantity, or considered evidence that was patently

unreliable. None dealt with the circumstance at issue in this

case, in which a defendant himself repeatedly admitted the

amounts at issue.

lee OLGA er Reh RII et ET eA aE ORE

21

1245 (8th Cir.), cert. denied, 113 S. Ct. 3017 (1993);

United States v. Connell, 960 F.2d 191, 194-195 (1st

Cir. 1992); United States v. Lenfesty, 923 F.2d 1293,

1300 (8th Cir.), cert. denied, 499 U.S. 968 (1991);

United States v. Stuart, 923 F.2d 607, 613-614 (8th

Cir.), certs. denied, 499 U.S. 967, 112 S. Ct. 145 (1991).

But see United States v. Williams, 954 F.2d 668, 673

(11th Cir. 1992); United States v. Riles, 928 F.2d 339,

342 (10th Cir. 1991). To our knowledge, no court of

appeals has yet found, however, that such entrapment

occurred on the facts before it.

There are no grounds here for any finding of

sentencing entrapment under any circuit’s standard.

The 30-kilogram quantity on which the district court

based the sentences was initiated not by the govern-

ment, but by Nicholas Parlavecchio. On July 27, 1989,

Nicholas expressly informed Campos that there was

“the potential for 30,” and when told by Campos that

“three” could be “done right away,” again insisted

“What three? Thirty.” IX Pet. C.A. App. 2133, 2135.

The quantity used for sentencing was not the product

of any “outrageous official conduct” that overcame

petitioners’ will and predisposition to deal only in

smaller quantities of drugs. See Barth, 990 F.2d at

424; Rogers, 982 F.2d at 1245. Because there is no

basis for concluding that the government inflated the

quantity of cocaine involved in petitioners’ crime in

order to increase their sentences, the concept of

“sentencing entrapment,” even if it were accepted in

principle, would not come into play.

22

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DREwW S. DAys, III

Solicitor General

JO ANN HARRIS

Assistant Attorney General

MICHAEL E. O’NEILL

Attorney

MAY 1994