U.S. v. Reiter, 1219

• Decision Date: 03 June 1988
• Docket Number: D,No. 1219,1219
• Citation: 848 F.2d 336
• Parties: UNITED STATES of America, Appellee, v. Mark REITER, Angelo Ruggiero, Vito Loiacono, Raymond Clark a/k/a "Romar," Leonard Rollack a/k/a "Petey," a/k/a "Peter Rollack," a/k/a "Peter Ifill," Timothy Smith a/k/a "Heartbeat," and Alfred Dicks, Defendants, Mark Reiter, Defendant-Appellant. ocket 88-1125.
• Court: U.S. Court of Appeals — Second Circuit

Page 336

848 F.2d 336

UNITED STATES of America, Appellee, v. Mark REITER, Angelo Ruggiero, Vito Loiacono, Raymond Clark a/k/a "Romar," Leonard Rollack a/k/a "Petey," a/k/a "Peter

Rollack," a/k/a "Peter Ifill," Timothy Smith a/k/a

"Heartbeat," and Alfred Dicks, Defendants,

Mark Reiter, Defendant-Appellant.

No. 1219, Docket 88-1125.

United States Court of Appeals, Second Circuit.

Argued May 5, 1988.

Decided May 10, 1988.

Opinion June 3, 1988.

Mark M. Baker, Slotnick & Baker, New York City (Barry Ivan Slotnick, Slotnick & Baker, New York City, of counsel), for defendant-appellant.

Maria T. Galeno, Asst. U.S. Atty. (Rudolph W. Giuliani, U.S. Atty. for the S.D. of New York; Robert Hammel, Asst. U.S. Atty., Linda Imes, Asst. U.S. Atty., of counsel), for appellee.

Before LUMBARD, OAKES, and KEARSE, Circuit Judges.

OAKES, Circuit Judge:

Mark Reiter appeals an order of the United States District Court for the Southern District of New York, Richard Owen, Judge, denying Reiter's motion to dismiss a predicate act contained in a substantive racketeering charge and referred to in a conspiracy charge on the ground that prosecution was barred by the Double Jeopardy clause of the United States Constitution. Reiter alleges that the same conspiracy was charged in a 1983 indictment in the Southern District of New York, which Judge Mary Johnson Lowe ultimately dismissed, and in a 1986 indictment which is the subject of an ongoing prosecution in the Eastern District of New York before Joseph M. McLaughlin, Judge. We disagree and accordingly affirm the order. ¹

BACKGROUND

A. Reiter I. Over the past six years, Mark Reiter has been charged with criminal conduct in three separate indictments. The first, "Reiter I," charged him with one count of conspiracy to distribute heroin from January 1980 through April 28, 1983, in the Southern District of New York and elsewhere, in violation of 21 U.S.C. Sec. 846 (1982). United States v. Grant, 82 Cr. 727 (S.D.N.Y. filed Apr. 28, 1983). The indictment named Thelma Grant, Salvatore Corallo, and Elizabeth Grant as Reiter's coconspirators. Thelma Grant was named in all nine counts and charged with, among other things, conspiring with others to violate the federal narcotics laws and with engaging in a continuing criminal enterprise. Grant, a close friend of Leroy "Nicky" Barnes, was suspected of operating Barnes's massive heroin distribution business following his conviction on December 2, 1977. The Government contended that in the summer of 1980, Barnes arranged through Herbert Sperling, with whom he was incarcerated in Marion, Illinois, for Reiter and Corallo to supply heroin to Grant.

Grant pleaded guilty to all the counts in the indictment but denied in court that Reiter and Corallo were involved in the conspiracy. She testified that she had two sources for the drugs sold to the undercover agent. The prosecution contended, however, that Reiter supplied heroin for several sales to an undercover agent who, posing as a former customer of Barnes, asked to purchase heroin from Grant in March 1982. The evidence showed that Reiter met with Grant at a Manhattan restaurant on March 12, 1982, and that the next day Corallo delivered heroin to Grant for resale to the agent. On April 29, 1982, Grant told the undercover agent that her source was B. Reiter II. In 1982 the FBI conducted a large-scale investigation of the activities of Angelo Ruggiero and his associates. In an application for a wiretap of Ruggiero's home, FBI Special Agent Donald McCormick submitted an affidavit in which he stated:

"a Jew" and "an Italian." After the Government presented its evidence against Reiter, the district court entered a judgment of acquittal as to Reiter pursuant to Fed.R.Crim.P. 29.

CS-1 [confidential informant] stated that RUGGIERO and JOHN GOTTI, approximately a year ago pretended to expel Mark Reiter from their crime crew, because Reiter was continuing to handle and distribute narcotics in violation of a Gambino Family edict prohibiting the conduct of narcotics trafficking. Nonetheless, CS-1 stated that Reiter continues to deal in heroin and cocaine and is being funded by RUGGIERO [and others].

....

CS-2 states that he has overheard a cryptic discussion between EUGENE GOTTI and another concerning the fact that Mark Reiter is still working for RUGGIERO. CS-2 advised that he heard members of the GOTTI-RUGGIERO crew state that Mark Reiter strictly handles narcotics for that crew.

The investigation resulted in a multicount indictment, "Reiter II," which charged Reiter and ten codefendants (Angelo Ruggiero, Gene Gotti, John Carneglia, Joseph Guagliano, Oscar Ansourian, Gerlando Sciascia, Edward Lino, William Robert Cestaro, Salvatore Greco, and Joseph LoPresti) and an unindicted coconspirator (Salvatore Ruggiero) with conspiring in violation of 21 U.S.C. Sec. 846 to distribute and possess with intent to distribute heroin in violation of 21 U.S.C. Sec. 841(a)(1) (1982) in the Eastern District of New York and elsewhere from February to June 1982. The indictment also charged Reiter's codefendants with other narcotics offenses, racketeering, and obstruction of justice in violation of 18 U.S.C. Secs. 1510, 1952, 1962(c) (1982 & Supp. IV 1986), and 21 U.S.C. Secs. 841(a)(1), 843(b), 846 (1982).

In a post-indictment application to secure handwriting exemplars, the Assistant United States Attorney wrote:

The Government's theory at trial will be that the delivery of the heroin from ANGELO RUGGIERO to MARK REITER was effectuated by SALVATORE GRECO through a "pickup man" and close associate of MARK REITER, SALVATORE CORALLO who had previously delivered 1/8 kilogram of heroin for MARK REITER to Thelma Grant on March 13, 1982.

(Footnote omitted.)

Reiter filed a pretrial motion to dismiss the indictment on double jeopardy grounds. Judge Mark A. Costantino of the Eastern District of New York denied the motion, finding that the Government had put forth sufficient evidence to show by a preponderance of the evidence that the conspiracies alleged in Reiter I and Reiter II constituted separate conspiracies. United States v. Ruggiero, 83 Cr. 412 (E.D.N.Y. Sept. 9, 1986). This court affirmed by order. United States v. Reiter, 816 F.2d 670 (2d Cir.1987).

Trial commenced before Judge Costantino on June 1, 1987. On September 2, 1987, Ruggiero made a telephone call from the Metropolitan Correctional Center ("MCC") to Reiter at Reiter's home, advising him that their associate, James Jackson, had been removed from the MCC. On September 8, Reiter failed to appear for trial. Law enforcement officers located him over two months later near Los Angeles, California. At a hearing held to decide whether Reiter's flight from the Eastern District could be admitted as proof of consciousness of guilt, the Government, apparently referring to James Jackson, stated, "Mr. Reiter became aware of somebody who could provide evidence of his narcotic [sic ] dealings during the time frame of our indictment [Reiter II ] and that so-called live witness who counsel is constantly telling the Court does not exist, could tie Mr. Mark Reiter into the conspiracy and does exist." Judge Costantino did not give a consciousness of guilt charge, and the evidence After eight months of trial, Judge Costantino declared a mistrial on the grounds of jury tampering and an insufficient number of jurors. Reiter and nine of his codefendants moved for an order barring their retrial on double jeopardy grounds, claiming that there was no "manifest necessity" to declare a mistrial. Judge Joseph M. McLaughlin, who was assigned the case, denied the motion and this court affirmed. United States v. Ruggiero, 846 F.2d 117, 125 (2d Cir.1988).

concerning Jackson's move from the MCC was not admitted at trial.

Evidence at the aborted Reiter II trial included a recording of a June 13, 1982, conversation in which Ruggiero told Gotti that Reiter would receive a large quantity of heroin if he purchased it with cash. Also admitted was the recording of a conversation that took place five days later, in which Ruggiero and Gotti discussed the distribution to Reiter of a portion of eight kilograms of heroin Ruggiero had obtained:

ANGELO RUGGIERO: I'm trying to figure out. I'm all confused. I just picked up eight things. Picked up six off them guys. (UI) [unintelligible]. Give one to, I'm giving one to Zeke tonight, and one to Jew Boy.

GENE GOTTI: You got eight?

ANGELO RUGGIERO: (UI) one more, yeah.

GENE GOTTI: (UI)

ANGELO RUGGIERO: (UI) took two off Eddie (UI). Uh, Jew Boy ordered one, cause (UI).

On June 23, 1982, Federal Bureau of Investigation ("FBI") agents arrested codefendants William Cestaro and Salvatore Greco after observing Cestaro give Greco $149,680 in return for four bags of heroin. FBI agents searching Greco found a business card with a notation indicating the sale of the eight kilograms, including one kilogram to "M" and a card bearing Reiter's fingerprints and the notation "call/6 p.m. Sal 392-2585," which corresponded to Salvatore Corallo's telephone number.

C. Reiter III. On February 17, 1987, a grand jury in the Southern District of New York returned the first of a series of indictments charging several defendants with participating in a large scale narcotics operation led by James Jackson. ² On February 23, 1988, the grand jury returned a twelfth superseding indictment which charged Reiter with participating in a racketeering enterprise in violation of 18 U.S.C. Secs. 1961, 1962(c) (1982 & Supp. IV 1986); with conspiring to violate the federal racketeering laws in violation of 18 U.S.C. Secs. 1961 and 1962(d) (1982 & Supp. IV 1986); with engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848(a) (1982 & Supp. IV 1986); with knowingly distributing and possessing with intent to distribute heroin in violation of 21 U.S.C. Secs. 812, 841(a)(1), and 841(b)(1)(B) (1982 & Supp. IV 1986) and 18 U.S.C. Sec. 2 (1982); with knowingly using a telephone to...