U.S. v. Zambrano, s. 1398

Citation776 F.2d 1091
Decision Date14 November 1985
Docket NumberD,1338,Nos. 1398,s. 1398
PartiesUNITED STATES of America, Appellee, v. Fiorentino ZAMBRANO, Salvatore Cardella, Frank Grappone, Defendants-Appellants. ockets 85-1036, 85-1052.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Ronald Gene Wohl, New York City (Philip C. Pinsky, George Skandalis, Ferziger, Wohl, Finkelstein & Rothman, New York City, of counsel), for defendant-appellant Grappone.

Charles Lavine, Forest Hills, N.Y., filed a brief for defendant-appellant Zambrano.

Peter A. Norling, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Mary McGowan Davis, Asst. U.S. Atty., Raymond J. Dearie, U.S. Atty., Brooklyn, N.Y., of counsel), for appellee.

Before KEARSE, CARDAMONE and FRIEDMAN, * Circuit Judges.

CARDAMONE, Circuit Judge:

After a jury trial resulted in their convictions for using and conspiring to use counterfeit credit cards in violation of 15 U.S.C. Sec. 1644(a) (1982), and for wire fraud in violation of 18 U.S.C. Sec. 1343 (1982), two defendants come before us on this appeal. 1 One claims that the evidence was insufficient to support his conviction, and both argue that the government improperly manufactured federal jurisdiction where none otherwise existed. Additionally, both contend that the plain, plastic, unembossed replicas of credit cards, without a name or account number, which defendants are charged with conspiring to counterfeit, could legally be sold by them at the time in question. 2 From this they argue that only when the government's undercover operatives embossed the cards did their otherwise innocent acts become criminal. But after careful scrutiny, it is clear there is less to this argument than meets the eye. Because this and the defendants' other tissue-thin contentions are without merit, we affirm both convictions.

I FACTS

Defendants Fiorentino Zambrano and Frank Grappone appeal their judgments of conviction from the United States District Court for the Eastern District of New York (Bartels, J.), for conspiracy and a number of other substantive counts charging them either with use of counterfeit credit cards and wire fraud, or with aiding and abetting the commission of these crimes. Each was sentenced to concurrent five-year prison terms. Since sufficiency claims require an analysis of the evidence before the jury, we set forth the facts in some detail.

In July 1983 U.S. Postal Inspectors and members of the Queens County New York District Attorney's staff were investigating a counterfeit credit card operation. The agents confronted two partners of the Steinway Bicycle Store in Queens about their use of counterfeit credit cards, and the partners agreed to cooperate. They named Salvatore Cardella as their source for the cards, agreed to continue buying from him, and allowed the inspectors to monitor all related telephone conversations.

In August and early September the Inspectors supervised the partners' purchase of embossed counterfeit cards from Cardella. Under instructions from the officers, one of the partners suggested to Cardella that the partners emboss the credit cards themselves and deliver them to Cardella's customers. Cardella, who was not interested in continuing to sell counterfeit credit cards, agreed to sell an embossing machine and to provide the partners with unembossed cards. Thus, a counterfeit credit card embossing operation was set up in the The undercover operatives included the two partners joined later by Inspector Kelly. They bought plain credit cards, embossed them with names and account numbers, and then sold them to customers referred to them by Cardella. Cardella supplied the names and account numbers and took purchase orders for the unembossed cards. Beginning in December, defendant Zambrano delivered the unembossed cards to the bicycle shop. The evidence at trial revealed the following chain of supply for the cards: defendant Zambrano, the deliveryman, brought to the bicycle shop unembossed cards that he obtained from Emilio Miraglia, a middleman, whose source of supply was defendant Frank Grappone, a printer.

bicycle shop, and the Inspectors used videotape recorders to monitor the transactions.

In addition to delivering the plain cards, defendant Zambrano asked that some cards be embossed for him. Inspector Kelly agreed to emboss the cards with names and account numbers provided by Zambrano in exchange for credit towards the purchase price of the unembossed cards. Kelly did this four times for Zambrano. Surveillance and wiretaps on Zambrano's and Miraglia's telephones established that, in 1984, Zambrano obtained from Miraglia 100 unembossed cards delivered on January 20, 232 cards delivered on March 21, 100 cards delivered on April 18, and 150 cards ordered on April 19 for delivery the following day.

Several transactions between Miraglia and defendant Grappone provided evidence that Grappone supplied Miraglia with the unembossed cards.

(1) On April 3, 1984 Inspector Kelly ordered 100 unembossed cards from Zambrano. The next day Miraglia told Zambrano, in coded terms, that the order would be ready either that night or the following day. Zambrano later called the bicycle store to say that the delivery would take place the next day. Grappone, who was under surveillance, was seen leaving his Staten Island residence on April 5 and driving to Glen Gardner, New Jersey, to the residence of Roger Goodman. Grappone parked his van outside Goodman's residence for 20 minutes, then returned to New York where he drove to 86th Avenue in Brooklyn. At 10:30 a.m. he met Miraglia. Both Grappone and Miraglia remained in their vehicles and Grappone passed Miraglia two packages. Miraglia immediately called Zambrano and arranged to meet him at noon. Zambrano then called the bicycle shop and arranged to come there at one o'clock. At the agreed time Zambrano came to the bicycle shop and gave Inspector Kelly 100 unembossed cards.

(2) On April 16 Inspector Kelly ordered 50 cards from Zambrano and asked that they be delivered on the 18th. Later that same day Zambrano telephoned Miraglia and ordered 50 cards for delivery on the 18th. Miraglia in turn called Grappone and arranged a meeting in Staten Island for that night. The next day Zambrano delivered the 50 cards that Inspector Kelly had requested.

(3) Inspector Kelly then ordered 150 cards from Zambrano to be delivered on April 20. On April 19, the Inspectors intercepted two telephone conversations between Miraglia and Zambrano in which they discussed plans for a meeting the next day. In the second call Miraglia told Zambrano that he was "still waiting for the call." Several minutes later Miraglia dialed Radio Relay, a paging system, paged Grappone and left his own number as a call-back number. Grappone had just left his printing facility on Long Island and was in his van. Nine minutes after Miraglia's page, Grappone pulled his van off the parkway and called Miraglia, saying that he was "on [his] way to a phone to call you," and--in that and a second telephone call soon afterwards--Grappone and Miraglia arranged to In Grappone's van the Inspectors found three boxes containing 450 unembossed credit cards. The bank logos on 150 of these cards matched the description of cards ordered by Inspector Kelly the day before. They also found a list of bank identification numbers and the names of the corresponding banks. Grappone had a list in his wallet of encoded names for credit cards, including the ones ordered by Inspector Kelly. During a search of Goodman's home, the Inspectors recovered 21,000 counterfeit credit cards and related items. At Grappone's printing facility on Long Island the Inspectors found partially printed cards and negatives of photographs of embossed cards issued by various banks. These negatives apparently served as prototypes for blank cards. One of the negatives was of an expired Chase Visa card issued to Frank Grappone.

meet at 12:30 a.m. at a diner in Staten Island. Grappone then went to New Jersey and met with Roger Goodman in the parking lot of a diner. After the meeting, the two parted and the Inspectors followed Grappone back to Staten Island, where they arrested him at a toll plaza. Miraglia was arrested in the parking lot of the diner where his meeting with Grappone was to have taken place.

Finally, a laboratory analysis was performed on the materials found at Grappone's plant, on the cards seized at Goodman's residence, on those found in Grappone's van, and on cards that had been delivered to the bicycle shop and kept in inventory during the course of the undercover operation. At trial, the examiner who had performed the analysis stated that virtually all of the cards were made from Grappone's negatives. In particular, all of the recovered Chase Visa cards were made from the negative of Grappone's own Chase Visa card.

II DISCUSSION
A. Grappone's Claim that the Evidence was Insufficient to Find Conspiracy

Grappone argues that even taking the view most favorable to the government, no jury could have found beyond a reasonable doubt that he was a member of a conspiracy. This argument has some superficial merit because, at the relevant time, it was not a crime to print, sell, or otherwise distribute unembossed plastic sheets in the form of credit cards. These cards became illegal counterfeits only after unauthorized names and account numbers were embossed on them. Even were he to have printed the unembossed cards, Grappone contends, this did not prove he did anything illegal or had any knowledge of an illegal trade in counterfeit cards. Further, even if the government did prove knowledge, Grappone continues, it did not establish that he joined a conspiracy knowingly and with the requisite intent to participate in it.

1. Applicable Law

A defendant who challenges the sufficiency of the evidence is seldom successful, United States v. Ferguson, 758 F.2d 843, 855 (2d Cir.1985), because a jury's verdict must be sustained where there is...

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