U.S. v. Sampol

• Decision Date: 09 December 1980
• Docket Number: 79-1542 and 79-1808,Nos. 79-1541,s. 79-1541
• Citation: 204 U.S.App.D.C. 349,636 F.2d 621
• Parties: , 7 Fed. R. Evid. Serv. 481 UNITED STATES of America v. Guillermo Novo SAMPOL, Appellant. UNITED STATES of America v. Alvin Ross DIAZ, Appellant. UNITED STATES of America v. Ignacio Novo SAMPOL, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 621

636 F.2d 621

204 U.S.App.D.C. 349, 7 Fed. R. Evid. Serv. 481

UNITED STATES of America v. Guillermo Novo SAMPOL, Appellant.

UNITED STATES of America v. Alvin Ross DIAZ, Appellant.

UNITED STATES of America v. Ignacio Novo SAMPOL, Appellant.

Nos. 79-1541, 79-1542 and 79-1808.

United States Court of Appeals District of Columbia Circuit.

Argued June 10, 1980.

Decided Sept. 15, 1980.

Rehearing Denied Dec. 9, 1980.

Appeal from the United States District Court for the District of Columbia (D.C. Criminal 78-367).

Michael Young, New York City, for appellants in cases 79-1541 & 79-1542.

Ellen S. Shapiro, with whom Michael Geltner, Washington, D. C., was on brief, for appellant in case 79-1808.

Dianne H. Kelly, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry, Michael W. Farrell, E. Lawrence Barcella, Jr., Asst. U. S. Attys., Washington, D. C., were on brief in cases 79-1541, 79-1542 & 79-1808 for appellee.

Eugene M. Propper, Asst. U. S. Atty., Washington D. C., also entered an appearance in cases 79-1541 and 79-1542.

Before MacKINNON and ROBB, Circuit Judges and CORCORAN, ^* United States District Judge for the District of Columbia.

Opinion PER CURIAM.

PER CURIAM ^**:

On September 21, 1976, in Washington, D.C., Orlando Letelier, former Chilean Ambassador to the United States, and Ronni Moffitt, an American associate, were mortally wounded by the remote control detonation of a bomb attached to the undercarriage of the automobile in which they were riding.

On August 1, 1978, Guillermo Novo Sampol (Guillermo Novo), Alvin Ross Diaz (Ross), Juan Manuel Contreras Sepulveda (Contreras), Pedro Espinoza Bravo (Espinoza), Armando Fernandez Larios (Fernandez), Jose Dionisio Suarez Esquivel (Suarez), and Virgilio Paz Romero (Paz) were indicted. The seven were charged in Count 1 with conspiracy to murder a foreign official, 18 U.S.C. § 1117; in Count 2, with murder of a foreign official, 18 U.S.C. §§ 1111, 1116; in Count 3, with first-degree murder of Letelier, 22 D.C.Code § 2401; in Count 4, with first-degree murder of Moffitt, 22 D.C.Code § 2401; and in Count 5, with murder by use of explosives to blow up a vehicle engaged in interstate commerce, 18 U.S.C. § 844(i). Guillermo Novo was also charged with two counts (6 and 7) of false declarations to the grand jury in violation of 18 U.S.C. § 1623. His brother, appellant Ignacio Novo Sampol (Ignacio Novo), was charged with two counts (8 and 9) of false declarations to the grand jury, 18 U.S.C. § 1623, and in Count 10 with misprision of a felony, 18 U.S.C. § 4.

Trial by jury commenced January 8, 1979 on the charges against Guillermo Novo, Alvin Ross and Ignacio Novo only. ¹ At the close of trial on February 14, 1979 each was found guilty of all charges lodged against him. ² This appeal followed.

The evidence produced at trial was voluminous, but a brief summary shall suffice at the outset. The principal witness for the prosecution was Michael Vernon Townley (Townley), who admitted his complicity in the killings and struck a plea bargain with the government in return for his testimony. ³ Townley, a United States citizen, entered the employ of DINA, the intelligence agency of the Chilean government in 1974. In the course of that employment, according to Townley, he was designated to carry out the murder of Letelier, who had served in the government of Salvadore Allende before Allende was ousted in 1973. Townley enlisted the help of the Cuban Nationalist Movement (CNM), an anti-Castro organization with which each appellant was affiliated. The thrust of the government's case was that officials in Chile plotted to murder Letelier in order to crush his outspoken opposition to the Chilean government. In order to isolate themselves as far as possible from any attack on Letelier, DINA officials ordered Townley to secure assistance from the CNM.

The primary theory of the defense was that appellants were simply not involved in the murder of Letelier. Appellants also sought to prove that Townley was in fact an agent of the United States Central Intelligence Agency (CIA) which had planned the assassination of Letelier and accordingly, no motive for the murder could be attributed to DINA or to the members of CNM.

During the trial major evidence of the guilt of Guillermo and Ross was introduced by the prosecution in the form of testimony from government informants who were inmates of the same cell blocks with Guillermo and Ross. These informants were operating in cooperation with the government. Following the conclusion of the trial, in the case of U. S. v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115, decided on June 16, 1980 the Supreme Court ruled that such testimony is inadmissible. We are thus required to reverse the convictions of Guillermo and Ross and remand the cases for retrial without the benefit of such evidence.

Also, for failure to grant a separate trial we reverse the convictions of Ignacio Novo Sampol. There was a substantial disparity between the lesser offenses he was charged with and those that directly involved the murders and conspiracy, and we point out additional deficiencies in charges against him and the sentences.

Appellants have made numerous allegations of error. We discuss these allegations below, providing additional factual background where appropriate, and consider all major issues and those we consider likely to recur at the retrial.

I THE TESTIMONY OF THE INFORMANTS KAMINSKY AND POLYTARIDES

In his testimony before the jury Townley gave a detailed account of the planning and execution of the murder of Letelier. A government witness, Sherman Kaminsky, testified to admissions made to him by the defendant Ross. Another witness, Antonio Polytarides, testified to an incriminating statement made to him by Guillermo Novo, in the presence of Ross. The testimony of these two informants corroborated in part the testimony of Townley. The incriminating statements had been made to the informants while they and the defendants were fellow prisoners at the Metropolitan Correctional Center, the federal detention center in New York City. The defendants objected to the admission of the informants testimony on the basis of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). After lengthy hearings on voir dire the court admitted the evidence. On this appeal the defendants renew their objection, citing United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980).

Townley testified that in 1976 he was an agent of the National Directorate of Intelligence, known as DINA, the intelligence and secret police agency of the government of Chile. The director of the agency was Juan Manuel Contreras Sepulveda. In the summer of 1976, said Townley, he was assigned by DINA to go to the United States and arrange for the murder of Orlando Letelier. He was told to get in touch with members of the Cuban Nationalist Movement, a Cuban exile group based in the United States, and ask them to carry out the mission for DINA. Pursuant to instructions he came to the United States on September 9, 1976 and met with leaders of the CNM, including the defendant Guillermo Novo.

On the night of September 10, said Townley, several members of the CNM met with him in his hotel room in New Jersey. Present were Guillermo Novo, Alvin Ross, Virgilio Paz, Jose Suarez and other members of the CNM. According to Townley, Guillermo Novo and Paz said that Chile and the CNM shared a common political ideology, and the Cubans wanted help from Chile, such as recognition of a government in exile, sanctuary for fugitives, and participation in training programs.

The Cubans did not respond that night to Townley's request for assistance. The next day Guillermo Novo told Townley that the CNM would cooperate in the murder, but they insisted that Townley personally take part in the operation. Accordingly, Townley, Paz and Suarez came to Washington where they put together an explosive device, and at midnight on September 18 Townley taped this bomb to the cross member under the driver's seat of Letelier's car. The bomb was exploded by remote control on September 21, 1976, at Sheridan Circle in Washington. Letelier and Ronni Moffitt, a passenger in the car, were killed.

A. THE TESTIMONY OF KAMINSKY

Sherman Kaminsky testified before the jury that he met Alvin Ross at the Metropolitan Correctional Center in New York in late May or early June 1978. Kaminsky was there pending sentence on indictments charging interstate racketeering and extortion. He and Ross were confined in the same unit and at some time after June 14, 1978 they "began to talk to each other". Ross had heard that Kaminsky had been a member of Hagannah, an arm of the Israeli military, and he said the Cuban Nationalist Movement aspired to having a similar organization. In many conversations after that Ross and Kaminsky talked about politics and the government of Chile. Ross said the interests of Chile and the Cuban Nationalist Movement were the same, that they were both anti-Castro and anti-Communist, and Chile could supply the Cuban Nationalist Movement with money, safe territory, an exchange of agents for instruction, and weapons and explosives.

According to Kaminsky Ross "told me that he was involved in the murder of Orlando Letelier together with generals in DINA, Sepulveda, Michael Townley, and other members of the Cuban National (sic) Movement in this country." Ross referred to Townley as a traitor, a rat, an informer. He told Kaminsky that he had attended a meeting at which Townley, an agent of DINA, said DINA and General Contreras wanted a Marxist agent assassinated, that this agent was a threat to DINA and that the cooperation of the Cuban Nationalist Movement in the murder would help to cement relations and agreements between the Movement and DINA. Ross called Letelier a rotten Communist Marxist and said he was glad Letelier was dead, that he had...