U.S. v. Izzi
| Decision Date | 05 February 1980 |
| Docket Number | Nos. 77-1382,s. 77-1382 |
| Citation | 613 F.2d 1205 |
| Parties | UNITED STATES of America, Appellee, v. Eugene J. IZZI, a/k/a Gino, Defendant-Appellant. UNITED STATES of America, Appellee, v. Frank SANTOS, a/k/a Frankie Rubiroso, a/k/a Efrain Santos, Defendant-Appellant. UNITED STATES of America, Appellee, v. Alberto Cruz FONTANEZ, Defendant-Appellant. UNITED STATES of America, Appellee, v. Carlos Cuevas MORALES, Defendant-Appellant. to 77-1385. |
| Court | U.S. Court of Appeals — First Circuit |
Carlos V. Garcia Gutierrez, Santurce, P. R., for defendant-appellant, Eugene J. Izzi.
Julius Lucius Echeles, Chicago, Ill., with whom Michael G. Cheronis, Chicago, Ill., was on brief for defendant-appellant, Frank Santos.
Gerardo Ortiz Del Rivero, San Juan, P. R., for defendant-appellant, Carlos Cuevas-Morales.
William C. Brown, Atty., Dept. of Justice, Washington, D. C., with whom Jose A. Quiles, U. S. Atty., San Juan, P. R., was on brief, for appellee.
Before COFFIN, Chief Judge, ALDRICH and BOWNES, Circuit Judges.
This appeal is brought by Frank Santos, Eugene Izzi, Alberto Cruz-Fontanez (Cruz), and Carlos Cuevas-Morales (Cuevas), 1 who were convicted by a jury of conspiracy to possess with intent to distribute heroin and to distribute and to aid and abet in distributing heroin "from on or about the first day of April, 1976, and continuously thereafter up to and including the 20th day of December, 1976, in the District of Puerto Rico and elsewhere." Count I of Indictment. Cruz was also convicted of the substantive crime of distributing heroin on May 17, 1976, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Count II of Indictment. 2
There are three main issues.
1. Was the evidence sufficient to establish a single conspiracy covering the period from April, 1976, through December 20, 1976?
2. Did the district court err in allowing in evidence the statements of coconspirators?
3. Was the government's failure to turn over to defendants at trial certain alleged Jencks Act material reversible error?
Our review of the evidence must be made in light most favorable to the government, "together with all legitimate inferences to be drawn therefrom." United States v. Doran, 483 F.2d 369, 372 (1st Cir. 1973), Cert. denied, 416 U.S. 906, 94 S.Ct. 1612, 40 L.Ed.2d 111 (1974), United States v. Gabriner, 571 F.2d 48 (1st Cir. 1978).
The testimony at the trial chiefly came from Guillermo Rios Sanchez (Rios), an unindicted member of the conspiracy, Louis Somosa, originally part of the conspiracy and then a government informant, Drug Enforcement Agents, and tapes of telephone conversations and recordings of statements made to Somosa who was fitted with a transmitter at various times.
The first step towards the conspiracy took place at the end of April, 1976, when Rios, who was a radio disc jockey, was approached by Cruz ostensibly concerning the joint promotion of dances in Puerto Rico featuring bands from the United States. Cruz suggested that Rios meet him at the Holiday Inn so he could meet some people who were going to present dances in Puerto Rico. At the Holiday Inn, Rios was introduced to Santos, who told him that he did radio work in Chicago, that he had friends who were interested in having dances promoted, and that he would see to it that Rios did the promoting. Santos subsequently introduced Rios to Cuevas and Jessie de Jesus, one of the indicted conspirators not tried along with appellants. Rios was told that de Jesus was the one in charge of bringing the dances to Puerto Rico.
de Jesus, Cruz, and Santos asked Rios if he knew anyone who worked at the airport with the necessary connections to obtain tickets whenever needed and who could obtain first class reservations. Rios introduced them to a friend of his, Louis Somosa, who worked as senior crew manager for Eastern Airlines. Santos returned to Chicago a few days later.
About the middle of May, de Jesus told Rios to buy twenty-seven airline tickets for musicians to come from New York to San Juan and then to meet him at his apartment. When Rios got to the apartment, de Jesus told him that the tickets would have to be taken to New York and Rios would be paid well for the trip. de Jesus also told Rios that he was going to help with the mortgages on his house. 3 He then told Rios that, after he delivered the tickets to the musicians, he should wait for a day and bring back a package of "perico basura, garbage." It is clear that Rios understood that de Jesus was referring to heroin. Rios told de Jesus that he did not dare do this, but had a friend who would. Rios immediately, and in de Jesus' presence, called Somosa and explained what de Jesus wanted done. Somosa agreed to be the courier. de Jesus told Rios to deliver the package to Cruz after he returned from New York.
Rios and Somosa proceeded to New York where a package of heroin was delivered to Rios at the Harlem Medical Center by one Alice, allegedly the niece of de Jesus. The package consisted of a shopping bag with round black cylinders, each of which contained heroin. The cylinders were made of black masking tape wrapped around tinfoil which held plastic bags of heroin. Rios turned the package over to Somosa who carried it aboard the plane inside a plastic shopping bag. After arriving back in San Juan, Rios called Cruz and told him the package had arrived. Rios then delivered the package to Cruz at Cruz' apartment. Cruz told him that he had done a good job and not to worry, that he was not going to lose his house. Somosa subsequently called Cruz and told him he wanted $9,000 either in cash or "garbage." Rios communicated this to Cruz who gave him a package of heroin which Rios turned over to Somosa.
A short time later, Rios went to de Jesus' apartment. de Jesus told Cuevas, who was there, that Rios was the one who had brought the package down from New York, whereupon Cuevas patted him and said "good work."
During the third week of May, de Jesus asked Rios to come to his apartment. When he arrived, a Tommy Senteno 4 was there as was de Jesus' wife, Carmen. de Jesus asked Rios to go to Chicago and New York with Somosa and pick up some "garbage." He told Rios to use the word "musicians" as a code for heroin. Rios was also told that Carmen would be in charge of delivering the merchandise in Chicago. de Jesus also told Rios that $9,000 was too high a payment for Somosa. Rios called Somosa at Eastern Airlines, who put a minimum price of $6,000 on his services. de Jesus again promised Rios that he wouldn't have to worry about losing his house and that he would be paid for promoting the dances.
Rios and Somosa flew to Chicago on May 22 where they picked up a suitcase for delivery to New York and a shopping bag for Puerto Rico. The suitcase and shopping bag contained heroin packaged in about forty black cylinders of the same type that was used to make up the first New York package. Rios and Somosa delivered the suitcase to de Jesus' sister at her apartment in New York. They then flew back to San Juan with the shopping bag. Rios called Cruz on his arrival and was told to keep the package temporarily. After several days, the shopping bag was delivered to Cruz who put it in de Jesus' automobile.
Rios, according to his testimony, 5 had difficulty getting paid and went to Cuevas and complained. Cuevas said he would speak to Cruz and de Jesus. Cuevas subsequently told Rios that they did not want to have anything to do with him. Later, de Jesus told Rios in Cruz' presence that he was sending Cruz to Chicago to collect payments from Santos for some merchandise and Cruz would pay Rios $6,500 on his return. A few days later, Rios met Cruz and Cuevas at a restaurant. They gave him $1,800 and told him that was all he was going to get. There was evidence by way of telephone records that, before each of the trips by Rios and Somosa, de Jesus had called Santos in Chicago.
On June 15, Somosa met with two DEA agents disguised as hippies at the Holiday Inn in Isla Verde for the purpose of selling the heroin given to him after the first New York trip. The sale was made for $10,000. When Somosa was arrested seven weeks later, he agreed to do undercover work and have his conversations recorded.
Santos returned to Puerto Rico on August 9 and stayed until August 20. Somosa, under surveillance and wearing a recording device, met with Santos at the airport on August 20, the day of his flight back to Chicago. Santos stated that he had straightened out some problems with Cuevas and Cruz and that Cruz had been thrown out of the organization. Santos also told Somosa that he would put him in good standing with de Jesus as a courier and that if de Jesus was not able to use him, he would connect him with somebody in Chicago so Somosa could buy dope. Somosa called Santos in Chicago the following day from a DEA phone and asked him about de Jesus. Santos told him that he had spoken to de Jesus and put Somosa in good standing.
Somosa went to Chicago in November pursuant to DEA instructions. He called Santos three times on November 8 from the DEA regional office. During these recorded calls, which were introduced in evidence, Somosa told Santos that he was in Chicago with a man who had $100,000 to invest. Arrangements were made to meet with Santos at "Frank and Pat's Lounge," located in East Chicago, Indiana. A transmitter was installed on Somosa and he proceeded to the meeting place under surveillance. At the lounge, Somosa met Santos and Izzi and was informed that Izzi had some cocaine and "three-quarters of a kilo of heroin" that was for sale for.$19,000. Samples of both drugs were shown to Somosa. The heroin was packaged in plastic bags wrapped in black cylinders made of black masking tape and tinfoil similar to the cylinders Somosa had picked up in New York and Chicago in May. Somosa kept a small sample of the cocaine and heroin which was turned over to the DEA...
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