U.S. v. Mastroianni
| Decision Date | 30 October 1984 |
| Docket Number | Nos. 83-1910,83-1925,83-1913,83-1966,84-1027,s. 83-1910 |
| Citation | 749 F.2d 900 |
| Parties | UNITED STATES of America, Appellee, v. David MASTROIANNI, Defendant, Appellant. UNITED STATES of America, Appellee, v. Dennis SAGAN, Defendant, Appellant. UNITED STATES of America, Appellee, v. Joseph P. BARKETT, Defendant, Appellant. (Two Cases.) UNITED STATES of America, Appellee, v. Joseph C. PIOGGIA, Defendant, Appellant. In re GRAND JURY. (Two cases). Appeal of Joseph P. BARKETT. Appeal of Joseph C. PIOGGIA. UNITED STATES of America, Appellee, v. Joseph P. BARKETT, Defendant, Appellant. to 84-1029. |
| Court | U.S. Court of Appeals — First Circuit |
Nancy Gertner, Boston, Mass., with whom Judith Mizner, and Silverglate, Gertner, Baker & Fine, Boston, Mass., were on brief, for Joseph P. Barkett and Joseph C. Pioggia, appellants.
Andrew Good, Boston, Mass., with whom John J. Barter, Boston, Mass., was on brief, for David Mastroianni, appellant.
Alfred Paul Farese, Everett, Mass., with whom Michael F. Natola, Everett, Mass., was on brief, for Dennis Sagan, appellant.
Harry C. Mezer, Boston, Mass., with whom Alan Dershowitz, Cambridge, Mass., Mass. Ass'n of Criminal Defense Lawyers, Ephraim Margolin, Denver, Colo., Nat. Ass'n for Criminal Defense Lawyers, John Reinstein, Boston, Mass., Civil Liberties Union of Massachusetts, were on brief, for Joseph P. Barkett, Joseph C. Pioggia and David Mastroianni, appellants, amicus curiae.
Robert S. Mueller, III, Asst. U.S. Atty., San Francisco, Cal., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for appellee.
Before COFFIN, Circuit Judge, ALDRICH and SKELTON, * Senior Circuit Judges.
This is a consolidated appeal by four defendants from their convictions for conspiracy to distribute cocaine. Defendants raise six issues on appeal, each concerning a ruling made on a pretrial motion. For the reasons set forth below, we affirm the district court's rulings.
The basic facts concerning defendants' drug distribution activity and their prosecution are as follows. 1 Defendants were convicted of a conspiracy which involved a cocaine distribution network in two distinct regions of Massachusetts, Martha's Vineyard and the Northhampton/Springfield area. The network operated from late 1979 to early 1982 and was headed by defendants Joseph C. Pioggia and Joseph P. Barkett. While Pioggia remained behind the scenes, Barkett took care of the purchasing, transporting, cutting, and initial distribution of the cocaine. Assisting Barkett with the transportation of the cocaine from Florida, where it was purchased, was co-conspirator Anthony Cellilli. Cellilli was also responsible for helping Pioggia with the purchase of real estate on Martha's Vineyard, where the operation moved in the spring of 1980, after starting in Northhampton. In this new location the network purchased and distributed approximately a kilo of cocaine each month. Defendants David Mastroianni and Dennis Sagan were among those who distributed the cocaine on Martha's Vineyard. Mastroianni distributed small amounts of cocaine and collected funds from Pioggia's and Barkett's customers. Sagan received multi-ounce quantities, cut and repackaged the cocaine, and distributed it for resale.
The federal government appears to have learned of the network in the spring of 1981. In the fall of 1981, the United States Attorney's office obtained pen registers for various telephones, and Massachusetts investigators also became involved at about that time. In August of 1981, Cellilli was arrested in Florida on cocaine and firearms charges. In late fall, Special Agent Edward K. O'Brien of the Federal Drug Enforcement Administration (DEA) had two conversations with Cellilli about the possibility of his cooperation with authorities. On January 8, 1982, Cellilli called O'Brien and formally began cooperating with the federal government the next day when he met with O'Brien in Enfield, Connecticut, and gave information concerning his prior involvement with Pioggia, Barkett, and their cocaine distribution network.
Five days later, the district attorney for the Cape and Islands District of Massachusetts obtained a warrant authorizing the interception of wire communications over a telephone at Pioggia's residence on Martha's Vineyard. The application for the warrant was based primarily upon the affidavit of Massachusetts State Trooper William McGreal. In his affidavit, he stated that a wiretap was necessary because there had been no success in penetrating the network by other means and that penetration in the future was unlikely unless the wiretap was authorized.
During the month that followed, Cellilli met a number of times with federal agents and divulged considerable information concerning the drug conspiracy. On February 8, 1982, Massachusetts state police searched property belonging to all four defendants, but only Barkett was charged with possessing cocaine. On February 24, 1982, Cellilli attended a meeting at the offices of Barkett's attorney, which was also attended by defense counsel for both Pioggia and Barkett, as well as by the four defendants. Cellilli was authorized by federal agents to attend the meeting because his attendance was seen as necessary to insure his safety and because it was thought that further criminal activities might be discussed. After the meeting he was partially debriefed by the government. In the months that followed, Cellilli met a number of other times with Pioggia and Barkett, but never again while in the presence of their defense counsel.
Following state indictments, a federal indictment of some of the defendants, and a superseding indictment, on November 19, 1982, a second superseding indictment was returned against all defendants. Each defendant was charged with conspiracy to possess with intent to distribute cocaine, and Pioggia and Barkett were charged with a number of substantive counts in violation of 21 U.S.C. Sec. 841 and with engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848.
Numerous pre-trial motions were made. Extensive hearing was had only on the motion charging the government with purposely causing informant Cellilli to attend the February 24 meeting of defendants and their counsel and thereby obtaining confidential information to their substantial detriment. These and all other motions to dismiss and suppress were denied during the summer of 1983.
After a two-month trial, defendants were convicted and sentenced on all charges but that of engaging in a continuing criminal enterprise. Following their sentencing and release on bail pending appeal, Pioggia and Barkett were served with subpoenas to testify before a federal grand jury on December 21, 1983. In anticipation of their assertion of their Fifth Amendment privilege, both were granted immunity pursuant to 18 U.S.C. Secs. 6002 and 6003. Both refused to testify, however, asserting that questions to be put to them were the product of electronic surveillance that was illegal because it had been authorized on the basis of Trooper McGreal's allegedly false statement. On January 6, 1984, both Pioggia and Barkett were held in contempt by the district court and committed to the custody of the attorney general. Their incarceration was to end either when they expressed a willingness to testify or the term of the grand jury expired, but in no case was the period to exceed eighteen months.
On appeal, defendants challenge a number of aspects of the denials of their pretrial motions, as well as the justification given for holding Pioggia and Barkett in contempt. The issues that defendants raise are as follows: (1) whether Pioggia's and Barkett's Fifth and Sixth Amendment attorney-client privilege and right to effective counsel were violated by the government's authorizing Cellilli to attend the February 24, 1982, meeting and by his subsequent debriefing; (2) whether the district court abused its discretion in denying an evidentiary hearing on whether evidence obtained through the wiretap should have been suppressed because of the alleged misrepresentation in State Trooper McGreal's affidavit; (3) whether the district court abused its discretion in denying an evidentiary hearing on whether the government prejudicially delayed bringing the indictments in violation of appellants' due process rights; (4) whether the district court abused its discretion in denying Barkett an evidentiary hearing on whether the government deliberately used Cellilli to elicit incriminating statements from Barkett while he was under indictment; (5) whether the district court abused its discretion in denying Sagan's motion to substitute counsel; (6) whether the district court abused its discretion in denying Sagan's motion to sever. Each of these issues requires separate consideration.
Pioggia and Barkett argue that their Fifth and Sixth Amendment right to counsel and attorney-client privilege were violated when the state, without proper justification, authorized Cellilli, a government informant, to attend a joint defense meeting at the offices of Barkett's attorney. They claim additionally that the subsequent debriefing of Cellilli and the resulting disclosure to the government of confidential attorney-client communications resulted in a breach of appellants' constitutional rights.
The facts relevant to this claim are as follows. On February 20, Pioggia asked Cellilli to attend a meeting with defense counsel on February 24 to discuss mortgage loans arranged by Cellilli, to document legitimate sources of funds for the property on Martha's Vineyard and for Pioggia's construction activities, and to discuss the Florida drug charges against Cellilli. Cellilli immediately reported Pioggia's request to Special Agent O'Brien of the DEA,...
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