488 F.2d 588 (2nd Cir. 1973), 922 to 926, United States v. Manfredi
|Docket Nº:||922 to 926, 72-2278 to 72-2282.|
|Citation:||488 F.2d 588|
|Party Name:||UNITED STATES of America, Appellee, v. Joseph MANFREDI et al., Appellants.|
|Case Date:||November 23, 1973|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued May 24, 1973.
Lawrence K. Feitell, New York City, for appellant Manfredi.
Irving Anolik, New York City, for appellants Joseph LaCosa, Frank LaCosa, Schrader and Cassarella.
Lewis E. Alperin, Mount Vernon, N. Y., for appellants Yanni and Colangelo.
Pierre N. Leval, New York City, for appellant Mayo.
John M. Walker, Jr., Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S.
Atty. for the Southern District of New York, Kenneth R. Feinberg and Richard J. Davis, Asst. U. S. Attys., of counsel), for appellee.
Before KAUFMAN, KILKENNY [*] and OAKES, Circuit Judges.
OAKES, Circuit Judge:
This appeal is from convictions arising out of the operation of a large-scale narcotics ring from suburban New York and New Jersey which supplied dealers and distributors in Harlem. Questions are raised both as to the sufficiency of the evidence and as to the reception of evidence obtained from wiretapped and recorded telephone conversations. A number of the questions of law involved were also sub judice by another panel of this court in United States v. Bynum, 475 F.2d 832 (2d Cir. 1973). There was in that case a remand to the district court for an evidentiary hearing in respect to legality of the wiretap evidence; a decision in this case was withheld pending that evidentiary hearing and the opinion of the Bynum panel after remand, which has now been filed. United States v. Bynum, 485 F.2d 490 (2d Cir. 1973). Some of the questions, particularly with respect to the necessity for "minimization" of the wiretaps and of what that minimization should consist were answered by the court in Bynum and in part on the basis thereof we affirm the judgments below.
For treatment of the issues involved here, however, we must recount the evidence specifically and in some detail recount the wiretap evidence, that is to say, the evidence obtained by use of the wiretaps and the way in which the wiretaps were conducted.
I. THE FACTS
A. The evidence prior to the wiretaps. The overall proof of the Government was to the effect that Joseph LaCosa was the most visible member of a family narcotics business 1 involved in distributing millions of dollars' worth of heroin and cocaine in the period between April 1970, and April, 1972. His principal, if not sole, source for the heroin was, according to the Government's case, his uncle who lived in New Jersey, Joseph Manfredi, and one of his principal assistants was his cousin, the late Philip J. Manfredi. Other family members also convicted include his father, Frank LaCosa, and his cousin Timothy Schrader. All of these defendants and Vincent Yanni, Charles Cassarella and Robert Mayo, all of whom were distributors or dealers who purchased from the LaCosa-Manfredi family, and Anthony Colangelo, a supplier of cocaine, were convicted below on Count I of an indictment alleging a conspiracy to distribute narcotics in violation of 26 U.S.C. §§ 4705(a) and 7237(b) and 21 U.S.C. § 846. Joseph LaCosa was charged under Count II of the indictment with, and convicted of, "engages in a continuing criminal enterprise" involving narcotics in violation of 21 U.S.C. § 848 and under Count III with distribution of heroin in violation of 21 U.S.C. § 841. 2
The Manfredi-LaCosa narcotics organization numbered among its customers Horace and William Marble, Herman Grant, Robert Roseboro, Thaddeus Byrd, and Garland Currie (now deceased), in addition to the other convicted defendants. Horace Marble, who was in partnership with Herman Grant in the heroin traffic in Harlem, met Joseph LaCosa, under the name "Joey," on April 10, 1970. Commencing with the purchase of one ounce of heroin on the following day, another ounce three days later, and then one-eighth of a kilogram, Horace Marble became a regular purchaser from Joseph LaCosa who, sometimes accompanied by Philip J. Manfredi, personally delivered the heroin to Marble until October of 1971 when Marble was arrested. Marble alone purchased between one and two kilograms of heroin per week at prices of $23,500 for one kilogram and $46,000 for two kilograms from the summer of 1970 to October of 1971. Most of the deliveries took place at Third Avenue and 76th or 86th Street in New York after a telephone call from LaCosa to Marble, with payment being made for the preceding shipment each time. William Marble, who was involved in his brother's distribution organization, sometimes received the telephone calls from LaCosa and relayed messages to his brother or occasionally himself picked up heroin from LaCosa or Philip J. Manfredi, including some smaller amounts for his own use. While it is nothing new perhaps to the avid readers of Second Circuit opinions, it might be mentioned that a purchaser such as Horace Marble with his 20-person heroin milling and distribution organization was engaged in an operation so widespread that each of the 17 or so sellers in the group supplied about 50 addicts with heroin. Each kilogram of heroin purchased from LaCosa produced about 600 "bundles," each bundle consisting of 25 "bags," the "bags" in turn each selling for five dollars on the street, so that the street value of each kilogram was about $75,000. Joseph LaCosa, who was not one to hide his light under the proverbial basket, identified his heroin connection to Horace Marble as his uncle, who LaCosa said was "big and in organized crime," adding that his uncle picked up the heroin from the trunk of a car in New Jersey. LaCosa also told Horace Marble that he had another customer in the District of Columbia who purchased four kilograms of heroin per week, so that Marble was only his second biggest customer. Marble once totaled the bills he received from LaCosa for heroin delivered to him as close to one million dollars.
In the latter part of 1970 Joseph LaCosa, who apparently had access to more narcotics than Horace Marble and his Washington, D. C., customer could buy, asked Horace to locate additional dealers for him. Marble introduced him to Robert Roseboro, who testified for the Government. Roseboro had his own heroin milling operation and purchased half-kilogram packages on a bi-weekly basis with deliveries made at the Gracie Square Hospital where Roseboro was on methadone maintenance. On December 15, 1970, Roseboro delivered a half-kilogram of heroin obtained from LaCosa to Agent White of the Bureau of Narcotics and Dangerous Drugs (BNDD) and was then arrested and agreed to cooperate with the Government. After his arrest
he met LaCosa while under surveillance and at these meetings LaCosa bragged about his new Cadillac and his new swimming pool and agreed to meet a "customer" from Detroit. Roseboro in turn agreed to pay LaCosa $3,000 which he owed him at his (Roseboro's) apartment. At the apartment LaCosa told Roseboro that his own uncle was his boss and that his uncle's name was "Joe." The purchaser from Detroit, who was a Government agent, put $12,700 in the glove compartment of a rented car and, with Roseboro, met LaCosa at Second Avenue and 70th Street. LaCosa took the car to First Avenue and 84th Street where he abandoned it and joined Philip J. Manfredi in a Cadillac registered to Timothy Schrader. As the Cadillac moved uptown, LaCosa was observed showing a quantity of money to the driver but LaCosa did not return with the heroin as planned. He later told Horace Marble that he believed (quite correctly) that he was being followed by the police. Through Marble, the half-kilogram of heroin was delivered by LaCosa to the Government agent.
Moving to the spring of 1971, Thaddeus Byrd, a gas station attendant, was a drug courier for and in the gypsy taxi business with one Garland Currie, a narcotics dealer and another one of Joseph LaCosa's customers. Byrd, with Currie, met LaCosa, identified as "Duke," and subsequently picked up heroin from and delivered money to him on Currie's behalf, generally at 80th Street and Lexington Avenue. LaCosa instructed Byrd to use the code word "shirt" for heroin in telephone conversations-just as he had done in transactions with Roseboro. Byrd discussed narcotics over the telephone with LaCosa and, working for Currie, often bought up to two kilograms of heroin in a series of purchases. Byrd was stopped on October 17, 1971, by Agent White of the BNDD after he had delivered money to LaCosa for Currie. Currie died before Byrd saw him again, but Currie's partner, Fred Powell, continued in the business, with Byrd purchasing narcotics twice more from LaCosa.
B. The wiretap evidence and accompanying surveillance. On the basis of affidavits by the Rockland County District Attorney, Robert Meehan, State Investigator John Crodelle, and BNDD Agent Frank White, telephonic interception was requested on a 24-hour-a-day basis at the LaCosa home at 11 Daisey Court, Nanuet, New York, and the Manfredi-Schrader home at 10 Sable Court, West Nyack, New York. 3 The affidavit of Crodelle specifically stated: "Your deponent recognized that not all the conversations occurring over the subject telephones will pertain to the said narcotics violations, and accordingly your deponent agrees to limit the seizure of conversations to those specifically pertaining to the aforementioned Penal Law violations." Justice Sweeney of the New York State Supreme Court issued warrants commencing on September 17, 1971, for wiretaps on both phones permitting law enforcement authorities "to intercept, eavesdrop, listen to and make copies of conversations . . . concerning penal law violations pertaining to the crimes of criminally selling a dangerous drug in the first degree, criminal possession of a dangerous drug in the first degree, and conspiracy to commit violation of the aforesaid sections of...
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