664 F.2d 860 (2nd Cir. 1981), 1255-1256, United States v. Martino

Docket Nº:1255-1256, 1262-1265, Dockets 81-1009 to 81-1014.
Citation:664 F.2d 860
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Vincent MARTINO, John Torrioni, Policardo Despaigne, a/k/a
Case Date:November 05, 1981
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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664 F.2d 860 (2nd Cir. 1981)

UNITED STATES of America, Plaintiff-Appellee,

v.

Vincent MARTINO, John Torrioni, Policardo Despaigne, a/k/a

"Paulie," Odell Miller, a/k/a "Pluggy," John

Radice, and John Perry, Defendants-Appellants.

Nos. 1255-1256, 1262-1265, Dockets 81-1009 to 81-1014.

United States Court of Appeals, Second Circuit

November 5, 1981

Argued April 22, 1981.

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Arnold E. Wallach, New York City, defendant-appellant Martino.

Edward R. Dudley, Jr., White Plains, N.Y., for defendant-appellant Torrioni.

Stephen M. Pave, Coral Gables, Fla., for defendant-appellant Despaigne.

Alexander Potruch, Lake Success, N.Y. (Kenneth Koopersmith, Michael K. Feigenbaum, Koopersmith, Feigenbaum & Potruch, Lake Success, N.Y., on the brief), for defendant-appellant Miller.

Frank A. Lopez, New York City, for defendant-appellant Radice.

Marvin M. Kornberg, Kew Gardens, N.Y., for defendant-appellant Perry.

K. Chris Todd, Asst. U. S. Atty., New York City (John S. Martin, Jr., U. S. Atty., S.D.N.Y., Mark F. Pomerantz, Asst. U. S. Atty., New York City, on the brief), for appellee.

Before LUMBARD, OAKES and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

Defendants Vincent Martino, John Torrioni, Policardo Despaigne, a/k/a "Paulie," Odell Miller, a/k/a "Pluggy," John Radice, and John Perry appeal from judgments of conviction entered after a jury trial in the United States District Court for the Southern District of New York, Lloyd F. MacMahon, Chief Judge. Count One of the three-count indictment charged all six defendants with conspiring to distribute heroin and cocaine between January and October 1980 in violation of 21 U.S.C. § 846 (1976). Count Two charged Martino with distributing and possessing heroin with intent to distribute it on May 1, 1980, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A) (1976); and Count Three charged him with possession of heroin with intent to distribute it on June 12, 1980, in violation of the same sections. The jury found each defendant guilty as charged.

Martino was sentenced, on each of the three counts, to a twenty-year term of imprisonment, a six-year term of special parole, and a $50,000 fine, all terms and fines to be concurrent. Miller was sentenced to twenty years' imprisonment and a $50,000 fine. Despaigne and Radice received sentences of ten years' imprisonment and fines of $5,000. Torrioni and Perry were sentenced under the Federal Youth Corrections Act, 18 U.S.C. §§ 5005-5026 (1976), to indeterminate terms of custody for treatment and supervision.

On appeal defendants challenge a number of trial and pretrial rulings, including the court's refusal to suppress a large quantity of heroin found in a brown paper bag in Martino's back yard. Finding no merit in any of the defendants' contentions, we affirm the convictions.

I. BACKGROUND

The proof at trial established that Martino was a substantial wholesale dealer in heroin and cocaine. He purchased large quantities of both drugs from Radice and Perry, and purchased cocaine from Despaigne. Martino sold heroin to Despaigne and Miller. Torrioni served as an aide to Martino. The trial evidence consisted principally of the testimony of Frank DeFelice, a paid confidential informant who had posed as a buyer of substantial quantities of heroin and cocaine and purchased various amounts of heroin from Martino; the testimony of a number of special agents of the United States Drug Enforcement Agency ("DEA") who had conducted surveillances of one or more of the defendants; tape recordings and transcripts of conversations

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to which one or more of the defendants were party, including some fifty conversations intercepted during a court-authorized wiretap of the telephone at Martino's narcotics headquarters during a two-week period in June 1980; and a variety of physical evidence. The physical evidence included heroin obtained from Martino, Radice, and Perry, having a retail value of approximately $1,000,000; and more than 1,000 rounds of ammunition, a bullet-proof vest, and narcotics trafficking tools such as cutting agents, plastic bags, and testing equipment, all seized from a "stash pad" maintained by Radice and Perry. Because only limited attacks are made on the sufficiency of the evidence, a short summary of the pertinent events proven at trial will suffice here. 1

In the early spring of 1980, DeFelice was taken by a companion, Arthur LaCilento, to Martino's Bronx apartment, which then served as Martino's narcotics headquarters, and was introduced to Martino and Torrioni. At that first meeting there was a large pile of white powder, apparently cocaine, on a sheet of glass on Martino's living room table; Martino dipped a straw into the powder and sniffed some into each nostril, then invited DeFelice to do the same. During that meeting LaCilento asked if Martino had "that thing" for him, whereupon Martino produced a small plastic envelope containing a white substance, placed it in a package of matches, and handed it to LaCilento.

In the days and weeks that followed, DeFelice met with Martino a number of times to discuss the possible purchase of heroin and cocaine by DeFelice from Martino, and the quality of heroin that Martino could supply. 2 On May 1, DeFelice purchased three ounces of heroin from Martino. Other negotiations followed. On one occasion, when DeFelice sought to purchase one-half ounce of pure heroin for $5,000, Martino attempted to get it from a "couple of his connections," but was unsuccessful and told DeFelice he could supply a full ounce of pure heroin the next day for $11,000. When DeFelice showed up the next day with only $5,000, asking again for only one-half ounce, Martino became angry because he had needlessly caused his connections to "go to the stash." One week later, on June 12, DeFelice returned to Martino's apartment with $11,000, asking for a full ounce of pure heroin and hoping to cause Martino to travel to one of his sources to obtain it. Martino, however, had an ounce of heroin in his apartment that he assured DeFelice was pure. No sale was consummated because when DeFelice (whose goal was not to make a purchase but to cause Martino to contact his connections) questioned whether the heroin was pure, Martino became angry and told DeFelice to go away and not to return.

In the meantime, as discussed in greater detail in Part II.A. infra, the government had obtained court authorization to place a wiretap on the telephone in Martino's apartment. The tap went into operation on June 2 and was continued for two weeks. Some fifty conversations relating to narcotics transactions 3 were intercepted,

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including seventeen conversations between Miller on the one hand, and Martino, Torrioni, or an unidentified woman from Philadelphia on the other, eleven conversations between Despaigne and Martino, and four conversations between Perry and either Martino or Torrioni.

On August 8, 1980, DeFelice renewed contact with Martino to discuss the purchase of one-eighth of a kilogram of pure heroin and to discuss the availability of cocaine. Martino persuaded DeFelice to accept a lower quality heroin that he had available, and on that date sold DeFelice one-eighth of a kilogram of 66.1% pure heroin. In addition, he provided DeFelice with a sample of 93.7% pure cocaine. The delivery of these narcotics took place at a rendezvous to which Martino was driven by Radice and Perry.

On August 19, Martino agreed to sell DeFelice one kilogram of pure heroin for $260,000. On August 20, however, Martino reported that although his sources had been expecting a delivery of thirty kilos of heroin, they presently had only one-half kilo on hand. DeFelice agreed to purchase this amount for $150,000, telling Martino, falsely, that the money was in the trunk of DeFelice's car. Martino accepted DeFelice's representation and said that they would have to wait for a telephone call. After the call was received, Martino and DeFelice entered the latter's car at approximately 6:10 p. m., with Martino driving. Martino proceeded to drive so evasively that only one car, carrying two of the nine DEA agents assigned to follow him and DeFelice, was able to keep up with them to their eventual destination, which was Martino's house in Queens.

On arriving at Martino's house, Martino and DeFelice entered Martino's yard, which was enclosed by a four-foot high, chain-link fence, leaving the gate open. Immediately Perry and Radice arrived in another car and double-parked near the open gate. Martino walked to the car and Radice handed him a paper bag. Martino placed the bag inside his shirt, and Radice and Perry drove away. Martino reentered the yard, placed the paper bag on a chair and put a telephone book over it, and turned to DeFelice and said, "There is your stuff." DeFelice stated that he would test it, and he and Martino then walked to the trunk of DeFelice's car where DeFelice removed some heroin testing equipment and gave the DEA agents the signal to arrest Martino. The agents arrested Martino, DeFelice told Agent John Toal that the heroin was in the chair in the yard, and Toal immediately accompanied DeFelice through the open gate to the yard to retrieve the bag, which was later determined to contain approximately one-half kilo of 87.8% pure heroin. Toal seized the bag and looked inside it, then immediately left to pursue Radice and Perry, just as another agent arrived in an undercover taxicab. Toal and the latter agent drove off in pursuit of Radice and Perry, and shortly encountered the two driving back toward Martino's house. After various automotive maneuvers and collisions, Radice and Perry were stopped and arrested.

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