925 F.2d 1026 (7th Cir. 1991), 90-1019, United States v. Mazzanti

Docket Nº:90-1019.
Citation:925 F.2d 1026
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Donald MAZZANTI, [*] Defendant-Appellant.
Case Date:February 19, 1991
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1026

925 F.2d 1026 (7th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,

v.

Donald MAZZANTI, [*] Defendant-Appellant.

No. 90-1019.

United States Court of Appeals, Seventh Circuit

February 19, 1991

        Argued Dec. 11, 1990.

Page 1027

        Daniel W. Gillogly, Asst. U.S. Atty., Ronald S. Safer, Office of the U.S. Atty., Barry R. Elden, Asst. U.S. Atty., Criminal Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

        Rick Halprin (argued), Marc R. Kadish, Legal Services Center, Chicago, Ill., for defendant-appellant.

        Before COFFEY, EASTERBROOK and RIPPLE, Circuit Judges.

        RIPPLE, Circuit Judge.

        Donald Mazzanti seeks review of the district court's denial of his motion for a new trial on the ground of newly discovered evidence. For the reasons set forth in this opinion, we affirm the judgment of the district court.

        I

        BACKGROUND

        Mr. Mazzanti is before this court for the second time. His convictions were affirmed in United States v. Mazzanti, 888 F.2d 1165 (7th Cir.1989) (Mazzanti I ), cert. denied, --- U.S. ----, 110 S.Ct. 2167, 109 L.Ed.2d 497 (1990). While that appeal was pending, Mr. Mazzanti moved for a new trial because a government witness, Robert Blessing, had recanted part of his trial testimony. 1 The factual background of the case is recounted in Mazzanti I, 888 F.2d at 1167-68. We shall provide below only those facts necessary to place his current appeal in context.

        Mr. Mazzanti and his confederates were charged in an eight-count indictment with various violations of the federal narcotics laws. Count I charged all defendants, including Mr. Mazzanti, with conspiring to possess with intent to distribute and to distribute cocaine. Mr. Mazzanti also was charged, in Counts II, III, V, and VII, with possession with intent to distribute and distribution of cocaine.

        With respect to Count II, the government's evidence showed that Agent John Riley of the Drug Enforcement Administration (DEA) posed as a friend of Robert Blessing and went to the ABC Lounge in Streamwood, Illinois, on April 2, 1987. Blessing had arranged for Agent Riley to purchase two ounces of cocaine from Oscar DeLisle, one of the charged co-conspirators. When the two arrived, DeLisle told Agent Riley that the cocaine would be

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there within the hour. Another DEA agent, William Maloney, had been observing activity in the ABC Lounge prior to the arrival of Agent Riley and DeLisle. During that time, he had seen Mr. Mazzanti speaking with DeLisle. DeLisle and Mr. Mazzanti also conversed after Agent Riley and Blessing arrived and spoke with DeLisle. Agent Maloney then observed Mr. Mazzanti leave the lounge and get into the van of Paul Born, another co-conspirator. Agent Maloney also observed the van return to the bar. Mr. Mazzanti and Born reentered the bar and spoke with DeLisle, who had not left the bar in the interim. DeLisle motioned Agent Riley and Blessing to come to the rear of the bar; he then proceeded to another room and produced a clear plastic bag containing over fifty-five grams of cocaine. He gave Agent Riley the cocaine in exchange for $3,200.

        Count III of the indictment was based on a similar transaction. On April 13, 1987, Agent Riley and Blessing drove to the ABC parking lot. DeLisle arrived in an orange van, which pulled up to the driver's side of Agent Riley's car. Blessing, who was in the driver's seat of Agent Riley's car, saw both Mr. Mazzanti and Born in the van. DeLisle came to Agent Riley's side of the car and informed him that he did not have the cocaine with him but that the orange van would return with the drugs. DeLisle also indicated that the parking lot was full of other customers awaiting the arrival of cocaine. DeLisle then entered the ABC Lounge. Later, the van returned with Born and DeLisle, and DeLisle gave Agent Riley over fifty-five grams of cocaine in exchange for $3,200.

        Count V is based on the following evidence. A month later, on May 13, 1987, Agent Riley and Blessing went to DeLisle's home and met with DeLisle and Mr. Mazzanti in the basement of the house. DeLisle said that he did not have the drugs but that he would go out and get them. While Agent Riley was awaiting the delivery of another package of cocaine, he asked Mr. Mazzanti if the quality of the drugs would be any better than what he had already received. Mr. Mazzanti responded that they had a new source of the drugs and that Agent Riley would be extremely happy with them. A short time later, DeLisle returned and gave Agent Riley fifty-two grams of cocaine in exchange for $3,200. Mr. Mazzanti was present when this exchange occurred.

        Count VII involves a multi-kilogram cocaine deal that was completed on July 13, 1987. Agent Riley negotiated the deal with co-conspirators Taglia and Westerman. Agent Riley initially told Taglia that he wanted $250,000 worth of drugs, and Taglia informed him that he could purchase approximately nine kilograms of cocaine for that sum of money. On July 13, Agents Riley and Maloney went to Taglia's condominium and offered to purchase $175,000 worth of cocaine. Taglia ultimately agreed to sell approximately six kilograms for that price. Westerman counted the money and checked to see whether the serial numbers were consecutive. The group then drove to a restaurant where the transaction was to take place. When they arrived, they were met by Mr. Mazzanti and DeLisle. Agent Riley asked Mr. Mazzanti if the quality of the cocaine that he was purchasing was good. Mr. Mazzanti responded that Agent Riley would be happy. Mr. Mazzanti stated that the cocaine should be coming at any moment and explained that he had to be careful what he was doing. He also stated that the cocaine would be delivered in a white paint bucket. Eventually, a maroon van arrived at the restaurant, and Mr. Mazzanti went over to it and took a white paint bucket from Paul Born. He placed this bucket in Blessing's car trunk and returned to the restaurant, where he handed Blessing his keys and told him that the package had arrived.

        On July 7, 1989, after Mr. Mazzanti had been convicted and sentenced, the government informed him that Robert Blessing had recanted a portion of his trial testimony. Blessing had testified that, on July 10, 1987, while at the home of Born, he had seen Westerman hand a package containing a white substance to Taglia. In July 1989, Blessing informed the government that he did not see Westerman hand Taglia any package. The district court denied Mr. Mazzanti's motion for a new trial.

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II

        ANALYSIS

        In this appeal, Mr. Mazzanti argues that the district...

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