882 F.2d 1218 (7th Cir. 1989), 87-2934, United States v. Adamo

Docket Nº:87-2934.
Citation:882 F.2d 1218
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Joseph ADAMO, Defendant-Appellant.
Case Date:August 16, 1989
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1218

882 F.2d 1218 (7th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,

v.

Joseph ADAMO, Defendant-Appellant.

No. 87-2934.

United States Court of Appeals, Seventh Circuit

August 16, 1989

Argued Feb. 8, 1989.

As Amended Aug. 21, 1989.

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[Copyrighted Material Omitted]

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Bridget Madigan, Giffin, Winning, Lindner, Cohen and Bodewes, Springfield, Ill., Anthony J. Servino, Hartsdale, N.Y., for defendant-appellant.

J. William Roberts, U.S. Atty., Springfield, Ill., K. Tate Chambers, Darilynn J. Knauss, Asst. U.S. Attys., Peoria, Ill., for plaintiff-appellee.

Before WOOD, Jr., POSNER and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

The defendant-appellant Joseph Adamo appeals his conviction for conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846. We affirm.

I.

Special Agent F.T. Simmons of the Illinois State Police, Division of Criminal Investigation, while assigned to undercover work in Peoria, Illinois, discovered a cocaine distribution network operating from the state of New York and servicing buyers in Peoria. The grand jury indicted Eric Reneau, Vicky Clark and Beth Young (buyers-Peoria) as well as the New York suppliers (the appellant Adamo, Paul Cozzolino, William Pizzolongo, Ralph Cava, Lisa DiPalo, Steve Gargano and Tito Lnu). All of the defendants, except Adamo, entered guilty pleas prior to trial. Adamo was tried and convicted of one count of conspiracy to distribute cocaine and was sentenced to a prison term of fifteen years.

At trial, the government presented the testimony of Agent Simmons and Richard DiFillippo, the New York FBI agent who executed a search warrant on Adamo's apartment. In addition, co-conspirators Cozzolino, Pizzolongo, Cava and Gargano testified against Adamo pursuant to their plea agreements with the government. Adamo neither testified nor presented any witnesses on his behalf.

FACTS

On January 15, 1987, Special Agent Simmons, using the pseudonym "Ty," was introduced to Vicky Clark in Peoria, Illinois. 1 Clark told Agent Simmons that an acquaintance of hers, Paul Cozzolino, was shipping cocaine from his home in New York to Eric Reneau, a friend of Clark's living in Peoria.

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Clark arranged for Agent Simmons to speak with Paul Cozzolino via telephone on February 3, 1987. During the February 3 conversation, Cozzolino agreed to sell Agent Simmons an ounce of cocaine for $1500 and advised Simmons that Eric Reneau could provide him with a sample of the drug. On February 18, 1987, after obtaining a cocaine sample from Reneau, Agent Simmons received an ounce of cocaine from Cozzolino through the United States mail. Thereafter, on or about February 26, 1987, Agent Simmons arranged to purchase a kilogram or "kilo" (2.2046 pounds) of cocaine from Cozzolino for approximately $25,000. 2

Paul Cozzolino testified that he attempted to obtain a kilo of cocaine for Simmons from two known New York cocaine sources with whom he regularly dealt, but was unable to arrange a purchase. Near the end of April 1987, Cozzolino was reintroduced to the appellant Adamo, a boyhood acquaintance, through a mutual friend, Lisa DiPalo. According to Cozzolino, he told Adamo that he needed a kilo of cocaine, and Adamo stated that he could obtain a kilo for $26,000. Cozzolino, however, was unable to raise $26,000, so Adamo agreed to obtain half a kilo of cocaine for $12,000. To fund the purchase, Cozzolino borrowed $6,000 from William Pizzolongo and $6,000 from Ralph Cava.

According to Cozzolino, Pizzolongo and Cava's testimony, they met Adamo and Lisa DiPalo at Cozzolino's Mount Vernon, New York, delicatessen at 3 p.m. on April 29, 1987. Adamo and DiPalo then drove in Adamo's van to a Bronx apartment building, with Cozzolino following in his car, and Cava and Pizzolongo following in Pizzolongo's car. Upon arrival in the Bronx, Cozzolino gave Adamo the $12,000, and Adamo entered the apartment building. Approximately an hour later, a dark-skinned man, whom Cozzolino, Pizzolongo and Cava described as a "Colombian," arrived and entered the building. After another hour, the dark-skinned man, and then Adamo, departed the apartment building. Cozzolino testified:

"We asked him [Adamo], 'Did you get the stuff?' and he says, 'No, there was a discrepancy about the money. It wasn't enough. So you're going to get a little shorter than what you expected.... Follow me back to my house. I brought an ounce with me. I got a sample of the stuff that you will be getting.' "

Cozzolino and Cava testified that they went to Adamo's apartment at 6 p.m. that evening (April 29), along with Adamo and Lisa DiPalo, and all but Cava ingested cocaine. Between 7 and 9 p.m. Adamo made a phone call, left the apartment, and returned at 10 p.m. with a paper bag containing approximately 16 ounces of cocaine. Upon Adamo's return, Cozzolino went into the kitchen to sample the cocaine, at which point (according to Cozzolino) Adamo told Cozzolino:

"Listen to me. I'll tell you what to do now.... Never have the money and the cocaine in the same place at the same time.... When you go to the airport, always keep it on your body. Don't keep it in the bag because you'll have a better chance getting into the airport if it is on your body."

Cozzolino also testified that sometime during the evening of April 29 he "told Joe [Adamo] who Ty 3 was, the guy in Chicago, where [the] cocaine was going to." He further testified that Adamo stated: "Want to do me a favor? Call up the guy that you're bringing the cocaine to and give him my phone number. So that, you know, if he wanted you, he could get in touch with you." Cozzolino later telephoned "Ty" (Agent Simmons) and left Adamo's telephone number on Simmons' answering machine.

Cozzolino and Cava stated that they left Adamo's apartment at 10:30 p.m. on April 29 with the cocaine purchased from Adamo.

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They proceeded to Cava's apartment and stored the cocaine in Cava's refrigerator. On April 30, 1987, Agent Simmons received a tape-recorded telephone message to contact Cozzolino at the New York telephone number listed under Adamo's name. He stated that he called the number on April 30, expecting to contact Cozzolino, but instead spoke with someone who identified herself as Lisa DiPalo, and according to the record was at that time living with Adamo. 4

On or about May 2, 1987, Cozzolino, Pizzolongo and Cava divided the cocaine they had purchased from Adamo into three separate bags and decided they would personally deliver one of the six-ounce bags of cocaine to "Ty" (Agent Simmons) in Peoria, Illinois. Cozzolino testified that their plan was to return to New York later and obtain another pound and a half of cocaine for "Ty," and that Adamo was to be the supplier. On May 4, Cozzolino, Cava and Pizzolongo flew from New York to Peoria with a plastic bag containing six ounces of cocaine sealed within a second plastic bag containing coffee grounds, in an attempt to conceal the cocaine odor. They met "Ty" (Agent Simmons) at the Peoria airport and proceeded to a hotel, where they were arrested while transferring the cocaine to Simmons. Cozzolino, Cava and Pizzolongo all testified that the appellant Adamo was the source of the cocaine delivered to Agent Simmons on May 4, 1987, in Peoria, Illinois.

II.

Adamo challenges his conviction on the grounds that: (1) The evidence was insufficient to establish that he participated in the conspiracy to distribute cocaine; (2) He was deprived of his sixth amendment right to effective assistance of counsel when his defense counsel failed to make a number of evidentiary objections and further failed to call a necessary alibi witness; (3) Co-conspirator statements were improperly received in evidence; (4) The trial court failed to give a "missing witness" jury instruction; (5) The prosecutor in his closing argument referred to facts not received in evidence, thereby denying Adamo his right to due process; and (6) The trial court committed error in admitting testimony regarding Adamo's personal use of cocaine and physical evidence of cocaine and drug paraphernalia. Adamo also alleges that the imposition of a 15-year prison sentence was excessive.

SUFFICIENCY OF THE EVIDENCE

Initially, we turn to Adamo's challenge to the sufficiency of the evidence supporting his conviction for conspiracy to distribute cocaine. "In evaluating [Adamo's] sufficiency of evidence challenge, we note that [he] bears a heavy burden. Initially, we 'review all the evidence and all the reasonable inferences that can be drawn from the evidence in the light most favorable to the government.' " United States v. Nesbitt, 852 F.2d 1502, 1509 (7th Cir.1988) (quoting United States v. Pritchard, 745 F.2d 1112, 1122 (7th Cir.1984)). "The test is whether after viewing the evidence in the light most favorable to the government, 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " Pritchard, 745 F.2d at 1122 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original)).

"As we emphasized in United States v. Giangrosso, 779 F.2d 376, 382 (7th Cir.1985): '[T]his court is not the trier of fact and we are required to uphold the jury's verdict where "any rational trier of fact" could have found the defendant guilty of the crime.' ... 'Only when the record contains no evidence, regardless of how it is weighed, from which the [trier of fact] could find guilt beyond a reasonable doubt, may an appellate

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court overturn the verdict.' Nesbitt, 852 F.2d at 1509 (quoting United States v. Whaley, 830 F.2d 1469, 1472 (7th Cir.1987), cert. denied, [--- U.S. ----], 108 S.Ct. 1738 [100 L.Ed.2d 202] (1988) which quoted, in turn, United States v. Moore, 764...

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