U.S. v. DeRosa

Decision Date04 March 1982
Docket Number80-1670,Nos. 80-1668,s. 80-1668
Citation670 F.2d 889
Parties10 Fed. R. Evid. Serv. 100 UNITED STATES of America, Plaintiff-Appellee, v. Raymond DeROSA, Defendant-Appellant, Alfred Ponticelli, Defendant-Appellant, Danny DeSantis, Defendant-Appellant, Phil Bertman, Defendant-Appellant. to 80-1672.
CourtU.S. Court of Appeals — Ninth Circuit

Appeal from the United States District Court for the Central District of California.

Before ANDERSON and NORRIS, Circuit Judges, and ENRIGHT, * District Judge.

NORRIS, Circuit Judge.

While conducting a two year undercover operation, Drug Enforcement Agency After Dino D'Agostino, a fifth defendant, pleaded guilty, the remaining four defendants proceeded to trial on the following counts. Count one (RICO) charged that Ponticelli and DeRosa's association constituted a racketeering enterprise, as defined in 18 U.S.C. § 1961(4) (1976), 3 which engaged in a pattern of narcotics violations (counts two through nine) and which further engaged in attempts to collect payments in exchange for permission to deal narcotics in Los Angeles and for protection of those dealings in violation of § 846. Count one charged that DeSantis and Bertman associated with the Ponticelli-DeRosa narcotics enterprise, and participated in the affairs of that enterprise through a pattern of racketeering acts (narcotics violations charged in counts five, seven, and eight). Counts two through nine charged various combinations of the defendants with distributing and attempting to distribute narcotics. 4

(DEA) Special Agent Ruddy Bareng and DEA informant David Blinder participated in several narcotics transactions involving the defendants. After Bareng and Blinder testified before a grand jury, a nine count indictment was returned charging the defendants with racketeering under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(c) (1976) 1 and with various narcotics violations under 21 U.S.C. §§ 2, 841, 846 (1976). 2

On motion for acquittal following the presentation of the government's case, the trial judge dismissed defendants DeSantis and Bertman from the RICO count. The jury convicted all four defendants on all the remaining counts. 5

On appeal, the defendants contend that the evidence presented was insufficient to sustain their convictions on each of the counts. The defendants also raise issues relating to the validity of the indictment, the right to cross-examination, the adequacy of counsel, and the propriety of the government's joinder of all defendants in one trial. We reject each claim.

I SUFFICIENCY OF THE EVIDENCE

In considering a claim of insufficient evidence, we must determine whether "after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

A. Counts Two, Three, Four, and Six

Ponticelli challenges the sufficiency of the evidence presented on counts two, three, and four, which charged him and Dino D'Agostino (the defendant who pleaded out) with distribution of cocaine on three separate occasions, and count six, which charged Ponticelli and DeRosa with distribution of oxycodone, a controlled substance. Ponticelli asserts that at no time did he physically possess the drugs in question and that he was merely present with DeRosa and D'Agostino when the narcotics distributions occurred.

The evidence, however, when viewed in the light most favorable to the government, shows that Ponticelli's involvement went far beyond his mere presence at the narcotics transactions. The evidence indicates that he arranged the meeting in which the count two cocaine distribution occurred, provided informant Blinder with the drug connection, directed and oversaw the distribution of the cocaine, and negotiated the price of the transaction. For counts three and four, the evidence shows that Ponticelli also arranged the meeting in which the cocaine sale occurred, directly negotiated the amounts, prices and methods of payment, and received the purchase money. With respect to count six, the record indicates that Ponticelli was present during the oxycodone transaction and encouraged Blinder to buy the pills, told Blinder that they would be easy to sell on the street, and oversaw the exchange of purchase money. In sum, the evidence is clearly sufficient to sustain Ponticelli's conviction on counts two, three, four, and six.

B. Count Five

DeSantis challenges the sufficiency of the evidence presented on count five which charged him with distributing a small bottle of cocaine. At trial it was established that DeRosa gave the bottle to Blinder who transferred it to DEA Agent Bareng. The only evidence linking the bottle to DeSantis came from Bareng who testified that, during his only encounter with DeSantis, DeSantis admitted after prompting that he had supplied DeRosa with the bottle of cocaine. DeSantis made the remark in the course of an aborted cocaine sale indicating to Agent Bareng that the small bottle of cocaine was a sample of a larger supply. 6

Viewing DeSantis' statement in the light most favorable to the government, we conclude that it was sufficient for the jury to convict. While DeSantis testified that the incriminating remark was only an empty boast to make himself appear important, the jury was entitled to reject DeSantis' explanation of the incident. See Anderson v. United States, 561 F.2d 162, 167 (8th Cir. 1977). Even though the evidence against DeSantis on count five is far from overwhelming, the circumstances of the admission and the fact that DeSantis himself made the incriminating statement was sufficient for the jury to conclude that there was evidence beyond a reasonable doubt that DeSantis was guilty.

DeSantis also claims that the bottle was improperly admitted into evidence because it was not authenticated and its chain of custody was not established. This claim is without merit. While informant Blinder testified that he only "believed" that the bottle introduced as a government exhibit was the same bottle he received from DeRosa and delivered to Agent Bareng, Bareng affirmatively testified that the exhibit was the same bottle he received from Blinder. Furthermore, DeSantis' own counsel at trial

specifically conceded at side bar to the chain of custody of the exhibit and entered into a general stipulation that there was no issue of chain of custody for any of the exhibits.

C. Count Seven

Ponticelli and DeSantis claim that there was insufficient evidence to convict them on count seven, which charged an attempt to distribute cocaine on February 6, 1979. They argue that their behavior on the night in question involved no affirmative steps toward consummation of the crime. "A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent." United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980), cert. denied, 450 U.S. 957, 101 S.Ct. 1416, 67 L.Ed.2d 382 (1981).

In United States v. Mandujano, 499 F.2d 370, 371-72 (5th Cir. 1974), cert. denied, 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975), the defendant offered to sell an ounce of heroin for $650 to a government agent, took the proffered purchase money, and went to find his source of heroin. An hour later the defendant returned the money saying that he could not locate his source. The court held this sufficient to constitute an attempt to sell heroin.

The instant case is identical to Mandujano. Ponticelli arranged the initial transaction between DeSantis, the alleged supplier, and agent Bareng and informant Blinder. On the day of the planned sale, DeSantis stated that he wanted the cocaine deal to occur at night, and that he wanted advance viewing of the $32,000 payment. DeSantis then went to Bareng's car where he viewed the purchase money. That evening, Bareng and Blinder met Ponticelli at the agreed site. Ponticelli said that he and DeSantis would meet in 30 minutes and that they would return with the cocaine. Ponticelli then went to meet DeSantis at a nearby restaurant. At this time, both defendants were under government surveillance. Upon returning they told Bareng and Blinder that they had observed police surveillance in the area and did not want to complete the narcotics sale that night. The deal was never rescheduled.

The only difference between the instant case and Mandujano is that here the defendants did not take possession of the purchase money. However, since they insisted on viewing the money before the sale, the jury could have reasonably concluded that the defendants had proceeded beyond the point of preparation and that they had taken significant steps toward making the illegal cocaine transaction before aborting upon discovery of police surveillance.

D. Count Eight

Defendants Ponticelli and Bertman challenge their convictions on count eight, conspiracy to distribute heroin in Hawaii between January and April 1979. Ponticelli contends that DeRosa arranged the Hawaii heroin deal and that there was insufficient evidence to indicate that Ponticelli was connected with the transaction. The evidence is to the contrary. The record shows that Ponticelli suggested, arranged, and directed the entire aborted Hawaii heroin sale.

Bertman's claim is also without merit. The evidence shows that Bertman was in close communication with Ponticelli during the Hawaii incident and attempted to obtain and deliver the heroin to Bareng and Blinder at the behest of Ponticelli and DeRosa. A video tape played to the jury showed Bertman delivering...

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