U.S. v. Vanwort
| Citation | 887 F.2d 375 |
| Decision Date | 26 September 1989 |
| Docket Number | D,Nos. 942-945,s. 942-945 |
| Parties | UNITED STATES of America, Appellee, v. Aart VANWORT, Walter Cabral, Jeanmarie Chapoteau, Vincent Cicali, Michael Crown, Alexander Donchenko, Bruce Duignan, Daniel Dymenstein-Kremer, Richard Keim, Richard Hopkins, Temistocles Moura-Torres, Claudio Petenucci, Gessi Prado, Henrique Rajas, Anthony Ruotolo, Sergio Stofel-DeCastro, Nahid Tabibi, Christianus Vanwort, Eduardo Varitzo, Michael Zacharias, Pedro DaSilva, Alfred Donchenko, Alexander Fontanelle, Steven M. Finn, Defendants. Appeal of Jeanmarie CHAPOTEAU, Michael Crown, Pedro DaSilva, Steven M. Finn, Bruce Duignan, Vincent Cicali, Defendants. ocket 88-1221 to 88-1223 and 88-1227. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Brian W. Wice, Houston, Tex. (Don Ervin, Houston, Tex., of counsel), for DaSilva.
Joseph J. Balliro, Boston, Mass. (Balliro, Mondano & Balliro, Boston, Mass., of counsel), for Finn.
Nicholas M. De Feis, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., David C. James, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y., of counsel), for appellee.
Before OAKES, Chief Judge, and WISDOM * and MESKILL, Circuit Judges.
Jeanmarie Chapoteau, Michael Crown, Pedro DaSilva and Steven M. Finn appeal from judgments of conviction entered in the United States District Court for the Eastern District of New York, Dearie, J., following a narcotics trial. 1
Chapoteau was convicted of conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. Secs. 846, 841(b)(1)(A)(ii)(II) (1982 & Supp. V 1987). He was also convicted of one substantive Michael Crown was convicted of one count of conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. Secs. 846 and 841(b)(1)(A)(ii)(II). Crown was sentenced to four years imprisonment and ordered to pay a $50 special assessment.
count each of importing cocaine and attempting to possess cocaine with intent to distribute it. 21 U.S.C. Secs. 952(a), 960(a)(1), 960(b)(1)(B), 846, 841(a)(1), 841(b)(1)(A)(ii) (1982 & Supp. V 1987) and 18 U.S.C. Sec. 2 (1982). Chapoteau received a fifteen year term of imprisonment on the conspiracy count and three years imprisonment on each of the two substantive counts. The sentences for the substantive counts were to run concurrently with each other and consecutively to the fifteen year conspiracy sentence. In addition to the prison terms, Chapoteau was assessed three concurrent $200,000 fines and ordered to pay a special assessment of $150.
Pedro DaSilva was convicted of conspiracy to distribute and possess with intent to distribute cocaine and one substantive count each of importing cocaine and possessing cocaine with intent to distribute in violation of 21 U.S.C. Secs. 952(a), 960(a)(1), 960(b)(1), 841(a)(1), 841(b)(1)(A)(ii)(II), 846 and 18 U.S.C. Sec. 2. He received concurrent sentences of fifteen years imprisonment on the conspiracy, importation and possession counts. DaSilva also received two concurrent five year special parole terms and was fined $25,000 for each of the substantive importation and possession counts, such fines to run consecutively for a total fine in the amount of $50,000. Additionally, DaSilva was ordered to pay a $150 special assessment.
Steven M. Finn was convicted of one count of conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. Secs. 846 and 841(b)(1)(A)(ii)(II). Finn received a suspended eight year term of imprisonment and was placed on five years probation. He was fined $750,000 and ordered to pay a special assessment in the amount of $50.
On appeal, the parties raise several challenges to their convictions. Chapoteau, DaSilva, Crown and Finn assert that the evidence established multiple conspiracies rather than the single conspiracy of which they were convicted. Chapoteau argues that there was inadequate evidence to convict him of the two substantive offenses of which he was convicted. Crown, DaSilva and Finn contest the sufficiency of the evidence to convict them of the conspiracy count. In addition, Crown contends that the government improperly used a grand jury subpoena to obtain the trial testimony of Brian Rockett. Finn claims that the district court erred in admitting into evidence a computer printout listing his name, address and telephone number.
Oral argument in this case was heard on April 24, 1989. Subsequent to oral argument, the United States Supreme Court decided Gomez v. United States, --- U.S. ----, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), which reversed our earlier decision in United States v. Garcia, 848 F.2d 1324 (2d Cir.1988). Gomez involved a situation in which the criminal defendants objected to the delegation of jury selection to a magistrate. In Gomez, the Supreme Court held that federal magistrates were not authorized under the Federal Magistrates Act, 28 U.S.C. Sec. 631 (1982 & Supp. V 1987), to conduct jury selection in a felony trial. The Court held that in a felony case criminal defendants have a Gomez, --- U.S. ----, 109 S.Ct. at 2239. In the instant case, the jury was also selected by a magistrate. After oral argument, and in light of the Supreme Court's decision in Gomez, the parties sought and were granted permission to file supplemental briefs and appendices and to include additional documents in the record on appeal pursuant to Fed.R.App.P. 10(e). Appellants now contend that Gomez requires reversal of their convictions. For the reasons stated infra, we disagree.
We find all of the appellants' contentions to be without merit. We therefore affirm the appellants' convictions.
Chapoteau, Crown, DaSilva and Finn, along with numerous others, were charged with participating in a conspiracy to import, possess and distribute large quantities of cocaine from Brazil by using the facilities and employees of Pan American World Airways (Pan Am) and Varig Airlines (Varig) over an eight year period. Under one method of importation, Brazilian suppliers would conceal the cocaine in suitcases or packages and relinquish the suitcases or packages to Brazilian airline employees for shipment to John F. Kennedy International Airport (JFK) in New York as unaccompanied luggage. The Brazilian exporters would telephone one of their contacts at JFK and give the contact a code for the baggage claim number of the package containing the cocaine. Upon arrival at JFK, an employee of either Pan Am or Varig, depending on which airline was used for that particular transaction, would intercept and deliver the cocaine. According to a second method of importation, individuals would carry luggage containing cocaine to New York and employees of either Varig or Pan Am would assist them in avoiding detection by United States Customs Service (Customs) officials. The participants at both Pan Am and Varig received $5,000 per kilogram for their efforts.
Evidence at trial showed that Chapoteau introduced Aart Vanwort to the drug importation business and for a time supervised the operations at Pan Am before Vanwort became the central figure in the conspiracy. The other appellants' roles in the conspiracy are similarly well defined. DaSilva was the supervisor of the drug smuggling activities at Varig. He obtained his supply of cocaine from the same Brazilian sources as did Chapoteau and Vanwort. The evidence at trial established that Crown, a former employee of Pan Am, received and distributed substantial amounts of cocaine. Finn concedes that he purchased cocaine from various importers.
We will elaborate on the operation of the conspiracy and the inter-relationship of its various participants.
Aart Vanwort testified as a government witness at trial. His testimony established that between 1980 and 1987 he was involved in importing cocaine from Brazil to JFK on approximately twenty occasions. He further testified that Chapoteau first requested his assistance in the importation of cocaine in the summer of 1980. At that time, both Chapoteau and Vanwort were employees of Pan Am at JFK. Chapoteau requested Vanwort's assistance in clearing four boxes, which had been imported from Brazil, through Customs inspection. Chapoteau informed Vanwort that he did not want the boxes to be inspected. However, a Customs inspector did examine two of the boxes. Even though the boxes did contain cocaine, the Customs inspector found only coffee. The boxes were stamped "cleared" and Vanwort and Chapoteau transported them out of the Customs inspection area. Chapoteau then informed Vanwort that the boxes contained cocaine from Brazil and paid Vanwort $5,000 for his assistance. Chapoteau requested Vanwort's assistance on several subsequent occasions, but Vanwort was unavailable. Despite his unavailability, Chapoteau paid Vanwort, assuring him that they were "partners." Vanwort had no involvement in importing cocaine with Chapoteau after September 1980.
In December 1980, Chapoteau introduced Vanwort to Sergio Alcantara. According to Vanwort's testimony, Alcantara stated that "he d[id]n't like to really work with Chapoteau anymore and had great interest in working with [Vanwort]." Vanwort subsequently agreed to meet with Alcantara and Eduardo Varitzo. At that meeting, Vanwort was accompanied by Ivory Hobson. Alcantara and Varitzo indicated their desire to use Vanwort in the importation scheme. Vanwort testified that his and...
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