887 F.2d 1141 (2nd Cir. 1989), 87-1357, United States v. Casamento

Docket Nº:87-1357 to 87-1366.
Citation:887 F.2d 1141
Party Name:UNITED STATES of America, Appellee, v. Filippo CASAMENTO, Emanuele Palazzolo, Giovanni Cangialosi, Salvatore Salamone, Giovanni Ligammari, Frank Castronovo, Gaetano Badalamenti, Salvatore Catalano, Giuseppe Lamberti, Salvatore Mazzurco, Salvatore Lamberti, Giuseppe Trupiano, Giuseppe Vitale, Lorenzo Devardo, Salvatore Greco, Francesco Polizzi, Defe
Case Date:October 11, 1989
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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887 F.2d 1141 (2nd Cir. 1989)

UNITED STATES of America, Appellee,

v.

Filippo CASAMENTO, Emanuele Palazzolo, Giovanni Cangialosi,

Salvatore Salamone, Giovanni Ligammari, Frank Castronovo,

Gaetano Badalamenti, Salvatore Catalano, Giuseppe Lamberti,

Salvatore Mazzurco, Salvatore Lamberti, Giuseppe Trupiano,

Giuseppe Vitale, Lorenzo Devardo, Salvatore Greco, Francesco

Polizzi, Defendants-Appellants.

Nos. 201-217, Dockets 87-1294 to 87-1299, 87-1303 and

87-1357 to 87-1366.

United States Court of Appeals, Second Circuit

October 11, 1989

Argued Jan. 26, 1989.

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Joseph W. Ryan, Jr., Uniondale, N.Y., for defendant-appellant Filippo Casamento.

Bobbi C. Sternheim, New York City, for defendant-appellant Emanuele Palazzolo.

Gerald J. Dichiara, New York City, for defendant-appellant Giovanni Cangialosi.

Susan G. Kellman, New York City, for defendant-appellant Salvatore Salamone.

Barry M. Fallick, New York City, (Rochman, Platzer & Fallick, New York City, of counsel), for defendants-appellants Giovanni Ligammari and Giuseppe Lamberti.

Kenneth J. Kaplan, New York City (Robert F. Katzberg, Alice K. Berke, Kaplan & Katzberg, New York City, of counsel), for defendant-appellant Frank Castronovo.

Charles F. Carnesi, Brooklyn, N.Y., for defendant-appellant Gaetano Badalamenti.

James A. Cohen, New York City (Mario Malerba, Queens, N.Y., of counsel), for defendant-appellant Salvatore Catalano.

Jonathan J. Silbermann, New York City, for defendants-appellants Salvatore Mazzurco and Salvatore Lamberti. Marvin E. Schechter, Brooklyn, N.Y. (Sercarz, Schechter & Lopez, Brooklyn, N.Y., of counsel), for defendant-appellant Salvatore Lamberti.

Salvatore S. Russo, Brooklyn, N.Y., for defendant-appellant Giuseppe Trupiano.

Harriet B. Rosen, Brooklyn, N.Y., for defendant-appellant Giuseppe Vitale. James T. Moriarty, New York City, for defendant-appellant Lorenzo Devardo.

Alan Scribner, Contoocook, N.H. (Larry Bronson, Bayonne, N.J., of counsel), for defendant-appellant Salvatore Greco.

Morrill J. Cole, Hackensack, N.J. (Evan L. Steinberg, Cole, Schotz, Bernstein, Meisel & Forman, Hackensack, N.J., of counsel), for defendant-appellant Francesco Polizzi.

Louis J. Freeh, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Robert B. Bucknam, Andrew C. McCarthy, Daniel C. Richman, Celia Goldwag Barenholtz, Asst. U.S. Attys., New York City, Richard A. Martin, Robert C.

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Stewart, Dept. of Justice Attys., of counsel), for appellee.

Robert M. Kaufman, Charles S. Sims, Andrew W. Reich (Proskauer, Rose, Goetz & Mendelsohn, New York City, of counsel), for The New York Community Trust, amicus curiae.

Before NEWMAN, PIERCE and MAHONEY, Circuit Judges.

PIERCE, Circuit Judge:

These appeals stem from the convictions of various persons alleged to have been members of an international narcotics ring. This prosecution came to be known popularly as "The Pizza Connection Case." Appellants present numerous issues for review.

For the reasons set forth below, we reverse the judgments of conviction and sentence of appellant Frank Castronovo on count ten and appellant Giuseppe Trupiano on counts one and sixteen, and we vacate the restitution penalties ordered as to eight of the appellants; otherwise, we affirm the judgments of conviction and sentence.

BACKGROUND

Appellants Filippo Casamento, Emanuele Palazzolo, Giovanni Cangialosi, Salvatore Salamone, Giovanni Ligammari, Frank Castronovo, Gaetano Badalamenti, Salvatore Catalano, Giuseppe Lamberti, Salvatore Mazzurco, Salvatore Lamberti, Giuseppe Trupiano, Giuseppe Vitale, Salvatore Greco and Francesco Polizzi appeal their judgments of conviction and sentence after a jury trial entered in the United States District Court for the Southern District of New York (Leval, Judge ) on Indictment SS 84 Cr. 236, which charged thirty-five defendants with engaging in a drug trafficking and money laundering conspiracy. Badalamenti also appeals his judgment of conviction (Metzner, Judge ) on Indictment 86 Cr. 1128, which charged him with one count of criminal contempt, to which Badalamenti conditionally pled guilty. Appellant Lorenzo Devardo, named as a defendant in Indictment SS 84 Cr. 236, pled guilty to lesser charges in a superseding information. He challenges the sentence he received on his judgment of conviction on Information SSSSS 84 Cr. 236, which charged him with two counts of firearms violations under 26 U.S.C. Secs. 5842, 5845, 5861(d), 5861(h) and 5871.

Indictment SS 84 Cr. 236 was filed on February 19, 1985. Following pleas of not guilty, trial began on September 30, 1985 and continued for more than seventeen months, until March 2, 1987, when the jury returned guilty verdicts against eighteen of the named defendants. Fifteen of these defendants now appeal their judgments of conviction and sentence.

Indictment SS 84 Cr. 236 contained sixteen counts. Count one charged all thirty-five defendants with conspiring to import and distribute narcotics in violation of 21 U.S.C. Sec. 846. All of the appellants except Salvatore Salamone, who was acquitted on this count, and Lorenzo Devardo, who pled guilty to lesser charges, were found guilty on this count. Counts two through eleven each charged a single defendant with engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848. Gaetano Badalamenti was found guilty of count two, Salvatore Catalano was found guilty of count three, Giuseppe Lamberti was found guilty of count five and Frank Castronovo was found guilty of count ten. The jury acquitted Salvatore Mazzurco of count six and Salvatore Lamberti of count seven. The defendants charged in counts four (Giuseppe Ganci), eight (Pietro Alfano), nine (Giuseppe Soresi) and eleven (Gaetano Mazzara) are not appellants here. Appellants Frank Castronovo, Salvatore Catalano, Salvatore Greco and Salvatore Salamone were found guilty of count twelve, which charged fifteen defendants with conspiring to transport money out of the United States without filing required currency reports in violation of 18 U.S.C. Sec. 371. Appellant Salvatore Salamone was found guilty of count thirteen, which charged six defendants with violating 18 U.S.C. Secs. 1001 and 2 by causing false statements concerning various cash deposits to be made to the Internal Revenue Service or aiding and abetting the making of such

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statements. Count fourteen charged fifteen defendants with violating 31 U.S.C. Secs. 1059 (recodified at 31 U.S.C. Sec. 5322), 1081 (recodified at 31 U.S.C. Sec. 5313), 5313(a) and 5322(b) and 18 U.S.C. Sec. 2 by failing to file required currency reports or aiding and abetting such failure. Appellants Frank Castronovo, Salvatore Catalano, Salvatore Greco and Salvatore Salamone were found guilty on this count. Count fifteen charged ten defendants with failing to file required currency reports in violation of 31 U.S.C. Secs. 1059 (recodified at 31 U.S.C. Sec. 5322) and 1101 (recodified at 31 U.S.C. Sec. 5316) and 18 U.S.C. Sec. 2. Appellants Frank Castronovo and Salvatore Catalano were found guilty on this count. Finally, count sixteen charged thirty-one defendants, including all of the appellants except Gaetano Badalamenti, with violating 18 U.S.C. Secs. 1962(d) and 2 by conspiring to conduct and participating, through a pattern of racketeering, in an enterprise which engaged in international drug trafficking and money laundering related thereto, or aiding and abetting therein. Found guilty on this count were appellants Giovanni Cangialosi, Filippo Casamento, Frank Castronovo, Salvatore Catalano, Salvatore Greco, Giuseppe Lamberti, Salvatore Lamberti, Giovanni Ligammari, Salvatore Mazzurco, Emanuele Palazzolo, Francesco Polizzi, Giuseppe Trupiano and Giuseppe Vitale. Salvatore Salamone was acquitted of count sixteen and Lorenzo Devardo pled guilty to lesser charges. The charges for which each appellant was indicted, the disposition of those charges, and the sentences imposed are set forth in an appendix to this opinion.

Indictment SS 84 Cr. 236 charged and the government sought to prove at trial the existence of a large-scale conspiracy to import and distribute narcotics and to launder the proceeds of the drug sales--count one charged a narcotics conspiracy and count sixteen a RICO conspiracy. We will not recount all the evidence adduced at trial. However, it is necessary to provide a brief overview of the alleged conspiracy.

The government contends that the alleged criminal events herein began in Sicily in the 1970's when members of the Sicilian Mafia decided to begin shipping narcotics to the United States. These shipments came from two places, Sicily and South America. In Sicily, Mafia members imported morphine base from Turkey, refined it, and smuggled the heroin they produced into the New York metropolitan area. Among the Sicilian Mafia members who the government contends were responsible for shipping the heroin and developing a distribution network in the United States were defendant Giuseppe Soresi and appellants Lorenzo Devardo and Giovanni Cangialosi. According to the government, the source of narcotics from South America was appellant Gaetano Badalamenti, a fugitive living in Brazil who was allegedly the deposed head of the Sicilian Mafia and who, in connection with this prosecution, later was extradited from Spain.

It is contended that Badalamenti sent narcotics to the Midwest, where the drugs allegedly were distributed by defendants Pietro Alfano and Salvatore Evola and appellants Emanuele Palazzolo, Giuseppe Vitale and Giuseppe Trupiano. The midwestern distributors delivered narcotics to a distribution group in the New York area. This New York group, comprised of members of the...

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