U.S. v. Mazza

• Citation: 792 F.2d 1210
• Decision Date: 03 June 1986
• Docket Number: 85-1184,Nos. 85-1183,s. 85-1183
• Parties: 20 Fed. R. Evid. Serv. 1225 UNITED STATES of America, Appellee, v. Antonio J. MAZZA, Defendant, Appellant. UNITED STATES of America, Appellee, v. Anthony DECOLOGERO, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1210

792 F.2d 1210

20 Fed. R. Evid. Serv. 1225

UNITED STATES of America, Appellee, v. Antonio J. MAZZA, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Anthony DECOLOGERO, Defendant, Appellant.

Nos. 85-1183, 85-1184.

United States Court of Appeals, First Circuit.

Argued Jan. 6, 1986.

Decided June 3, 1986.

Joseph J. Balliro, Boston, Mass., with whom Robert A. George and Balliro, Mondano & Balliro, Boston, Mass., were on brief, for defendant, appellant Mazza.

Rikki J. Klieman with whom John W. Thomas and Friedman & Atherton, Boston, Mass., were on brief, for defendant, appellant DeCologero.

John Voorhees, Sp. Atty., Dept. of Justice, Washington, D.C., with whom William F. Weld, U.S. Atty., Boston, Mass., and Vincent L. Gambale, Dept. of Justice, Washington, D.C., were on brief, for appellee.

Before BREYER, Circuit Judge, ALDRICH and ROSENN, ^* Senior Circuit Judges.

BREYER, Circuit Judge.

Antonio Mazza and Anthony DeCologero appeal their convictions for conspiracy to possess cocaine with an intent to distribute it. 21 U.S.C. Sec. 846. They primarily attack the way in which the government first presented its case to the jury, namely, by having two government agents describe what an informer had previously told them about what the appellants said and did in a series of meetings with the informer. We agree with the appellants that the admission of this descriptive testimony was erroneous; but we also think the error was harmless. In Part I we shall set out at length how we reach this conclusion. In Part II we shall consider the appellants' other arguments, none of which, in our view, warrants a new trial.

I

Our analysis of the appellants' main argument depends heavily on the specific facts of the case. We shall first summarize these facts, then discuss the basic error of law, and finally explain why we think that error was harmless.

A

The government's evidence, much of which was on tape, shows the following series of events, all of which took place in late summer of 1984.

August 3: Agents of the federal Drug Enforcement Administration lawfully searched the home of Armand Barrasso. They found about a pound of cocaine. In return for a promise to recommend leniency to his eventual sentencing judge, Barrasso promised to help the DEA by becoming an informer. His actions during the ensuing investigation of the appellants were closely supervised by two DEA agents, Peter Vinton and Daniel Doherty.

August 7: Barrasso told Doherty that "Tony Ramo" had called and wanted to see him. "Tony Ramo" turned out to be an alias for Antonio Mazza, one of the appellants. Barrasso met Mazza that afternoon at the Sports Page Lounge in Revere, Massachusetts. Mazza introduced him to Anthony DeCologero, the other appellant. According to Barrasso, the appellants asked him to supply six kilograms of cocaine per month, as well as some marijuana, but Barrasso said he wasn't interested.

August 13: After consulting with the DEA agents, Barrasso called Mazza and left a recorded message, stating, "When I catch up with ya, I wanna talk to you about something. May be comfortable for both of us." (The jury heard a tape of the message.)

August 14: Barrasso called Mazza. Barrasso said Mazza had put him in a "peculiar position" and that Barrasso would "need an explanation" from Mazza "before I can talk to you." Mazza replied that he was "trying to form the company to go to work, and this is it." Barrasso and Mazza agreed to meet again. (The jury heard a tape of the call.)

August 15: Barrasso called Mazza. Mazza said that he had spoken with his "other friend" and that he (Mazza) wanted to see Barrasso about something "very important." (The jury heard a tape of the call.) Barrasso met Mazza that evening at Mazza's home. According to Barrasso, Mazza showed him six or seven ounces of cocaine and asked him if he (Barrasso) could get him cocaine "to take care of something local."

August 16: Barrasso called Mazza. Mazza said, "[M]y guy ... [is] desperate.... He'll go along with anything I tell him to do." They agreed to meet at a restaurant that afternoon. (The jury heard a tape of the call.) Barrasso then met Mazza and DeCologero at Mario's Restaurant in East Boston. According to Barrasso, DeCologero told him "[h]e was ready but ... [t]hey wanted the narcotics brought up to Boston" before paying. Barrasso said he would try to arrange things. Later that day Barrasso called Mazza and told him he was going on vacation but would be in touch when he got back.

September 5: Barrasso called Mazza and said he was "back from vacation." Barrasso asked to meet "with you and your friend," and set up a meeting for that evening at the Heritage Flooring store in North Reading. (The jury heard a tape of the call.) At the evening meeting (which Barrasso secretly recorded) Barrasso explained his not having been in touch by saying "other things turned up." He said he had gone "down there" and his source had agreed to "come up here." DeCologero said he had "moved" twelve "pieces" since last speaking to Barrasso. He told Barrasso, "I'm on consignment with people. They're on consignment with me. Understand? I have the biggest hook-up in New England. With my boats and everything." Mazza asked Barrasso whether he had worked out "that other thing" involving "the smoke ... the weed." DeCologero said, "I can move at least 20--20 thousand pounds of the shit. I mean if you got ah, the smoke.... The other stuff I can move three or four. I told you, maybe 5-6 a month." DeCologero added that he had "done enough dealings with a lot of people in New England.... I know everybody there is possible to know." He told Barrasso not to worry about getting hurt by "outlaw" drug dealers. "If there's any trouble on that end of it," DeCologero said, "I'll take care of it.... I got an army you understand.... I don't fuck around."

Barrasso told Mazza and DeCologero, "Here's what I can do.... They'll bring the stuff up like that there.... I know that the money is here. I just pick up the phone and say the money is here, bang." Barrasso added that DeCologero did not have to "give" him any money, "[a]s long as I see the money." He said the price would be "32." Mazza said they wanted "3 pieces tomorrow." Barrasso said DeCologero should come up with "about sixty up front." DeCologero eventually replied, "I can come up with a little better than 40." All three agreed to meet in the parking lot of the Hilltop Steak House in Saugus. At one point in the meeting Barrasso showed Mazza and DeCologero a sample of cocaine (supposedly from his Florida source but actually supplied by the DEA). (The jury heard a tape of the Heritage Flooring conversation.)

September 6: Barrasso and Mazza spoke by phone. They arranged a meeting for that evening. (The jury heard tapes of the calls.) According to Barrasso, Mazza asked at the meeting whether Barrasso could help him with a separate cocaine deal.

September 7: Barrasso met Mazza and DeCologero at the Hilltop Steak House. According to Barrasso, DeCologero told him that the money was in the trunk of his car. Barrasso said he did not actually see the money. Barrasso spoke to the DEA agents by phone during the meeting. (He pretended he was talking to his "Florida source.") At one point, Barrasso told Agent Vinton there was "a problem"; Vinton told Barrasso he should leave the meeting. (Barrasso secretly recorded the meeting; the government introduced the resulting tape into evidence, but did not play it for the jury.)

That afternoon, Barrasso called Mazza and suggested that "you and your friend meet me at Eastern Airlines parking lot, at ah, five o'clock, and we'll have it, we'll be all set." Mazza said no. Later, Barrasso and Mazza agreed to meet at DeCologero's house once the "Florida source" arrived. Later still, Barrasso called Mazza to say that the source had not arrived and that he was going to Florida to straighten things out. (Recordings of the first two of these three calls were played for the jury.)

September 15: Barrasso called Mazza from Miami and told him, "[T]hey're going to leave with that thing. It's all set." Mazza told Barrasso to call him when he returned to Boston. (The jury heard a tape of the call.)

September 19: Having returned to Massachusetts, Barrasso called Mazza from Medford and said, "[T]he thing is here safe." He called Mazza again to make various arrangements. (The jury heard tapes of both calls.)

September 20: Barrasso called Mazza twice and arranged a meeting at the Meridien Hotel in Boston. (The jury heard tapes of both calls.) Barrasso, Mazza, DeCologero, and DEA agent John Kelly (masquerading as the "Florida source") met in the Meridien lobby at 1 p.m. Kelly testified that he told the defendants he had "two kilos of cocaine" in Boston and he "understood they wanted to do some business"; but, he said they would see no cocaine until he saw the money. Mazza replied, "[T]here has to be some trust here." He said he was "in organized crime up here" and he was "out on bail for first-degree murder." DeCologero asked Kelly how he wanted to do the deal. Kelly told Mazza and DeCologero to get the money, put it in the trunk of their car, return to the Meridien, give Kelly the key to the trunk, and let him see the money; he would then deliver the cocaine. After further discussion--during which DeCologero said he had "done twelve kilos of cocaine since the last night [sic] at the Hilltop," and Mazza asked Kelly how soon he could do another deal--the appellants said they would get the money and "get back" to Kelly.

Late that afternoon, Mazza called Kelly at the Meridien, acknowledged that he had "the thing," and arranged to meet Kelly in the hotel lobby. Kelly and Barrasso then met Mazza and DeCologero in the lobby. DeCologero said he had the money. He went with Kelly into the men's room, where he showed him a canvas bag filled with cash. The two men returned outside and met with Mazza and Barrasso. At that point,...