U.S. v. Aiello
| Decision Date | 07 August 1985 |
| Docket Number | Nos. 84-1404,84-1405 and 84-1413,s. 84-1404 |
| Citation | 771 F.2d 621 |
| Parties | UNITED STATES of America, Appellee, v. Andrea AIELLO, a/k/a "Antonio Aiello", Francesca Bartolotta, Lorenzo Scaduto, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
Gerard E. Lynch, New York City (Fischetti, Feigus & Pomerantz, New York City, of counsel), for appellant Aiello.
Jeffrey A. Rabin, Brooklyn, N.Y., for appellant Bartolotta.
Anne C. Feigus, New York City (Ronald P. Fischetti, Mark F. Pomerantz, Warren L. Feldman, Fischetti, Feigus & Pomerantz, New York City, of counsel), for appellant Scaduto.
William J. Cunningham, III, Asst. U.S. Atty., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty. for the E.D. of N.Y., Mary
McGowan Davis, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for appellee.
Before MANSFIELD, OAKES and WINTER, Circuit Judges.
Andrea Aiello, Lorenzo Scaduto, and Francesca Bartolotta appeal judgments of conviction of narcotics violations after a ten week jury trial in the Eastern District of New York before Mark A. Costantino, Judge. Appellants raise various issues, the most important of which are challenges to the district court's evidentiary and suppression rulings and to the ruling that a third-party's approach to one juror did not require the declaration of a mistrial. We affirm, except as to the disposition of Scaduto's convictions on two lesser-included offenses.
In October 1982 Daniel Costa, a New York City undercover officer, initiated a relationship with a heroin dealer named Charles Salemi. In the course of several heroin purchases from Salemi Costa became acquainted with Salemi's various customers and colleagues in the drug trade. Costa eventually purchased heroin directly from Salemi's source, Sal Bartolotta. Costa also encountered Fillipo Ragusa, whom Costa believed to be the ringleader of the heroin operation. Surveillance and telephone wiretaps of Bartolotta's phone were conducted by the Queens County District Attorney pursuant to eavesdropping warrants issued by a justice of the New York State Supreme Court on March 30, 1983, and on May 13, 1983. They disclosed communications between these individuals, appellant Scaduto and others and coded narcotics transactions featuring the code word "tile" for heroin. Surveillance also uncovered communications between Scaduto and appellant Aiello, who established a tile importing business in 1983 with a warehouse in Buffalo, N.Y.
On September 15, 1983, government agents in Port Newark, N.J., intercepted a tile shipment from Italy to Aiello and found 18 kilograms of heroin in the centerboards of the shipping pallets. The agents replaced almost all of the heroin with harmless white powder and sent the consignment on to Aiello in Buffalo, under surveillance. That night the government applied for a court order authorizing entry into Aiello's Buffalo warehouse and the installation of a video camera. The government did not apply for permission to record sound and did not follow the procedures specified for electronic surveillance under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Secs. 2510-20 (1982), which does not mention video surveillance. The order, issued on September 16, 1983, by Judge Elfvin in the Western District of New York, granted authorization for the videotaping on the basis of Fed.R.Cr.P. 41(b) and 57(b) and 28 U.S.C. Sec. 1651, specifying that monitoring was to occur only when Aiello or other suspected conspirators were inside the premises.
On the arrival of the shipment at the warehouse agents at the scene observed the tiles being unloaded and noticed that some of the pallets were broken. On September 17 shots taken inside the warehouse revealed Aiello and a co-defendant working on the pallets and removing the five centerboards. Agents outside later observed Aiello loading the centerboards into a truck and driving them to the vicinity of his house, where they were transported into his house. None of the videotaped scenes, however, depict any of the defendants directly handling the packages of white powder. Later that day newly-installed centerboards were attached to the marble-laden pallets.
In the meantime Scaduto, having been advised by Aiello (using a public telephone) that the shipment had arrived, flew under the name "Frank Mineo" from New York City to Buffalo, where he was picked up by Aiello at the airport. Scaduto, in turn, also using public telephones, arranged with Salvatore Bartolotta in New York City to have Pietro Graffeo and Domenico Lo Galbo fly to Buffalo after Scaduto remarked that he would have difficulty bringing "those things down." On September 18 the videocamera Three days after the delivery of the tile shipment to Aiello, federal and state agents, with warrants, raided several locations and made a series of arrests and conducted searches. All three appellants were arrested during the roundup. A search of appellant Bartolotta's house turned up heroin, guns, narcotics paraphernalia and a notebook containing records of drug transactions. Although Ragusa escaped arrest, a search of his apartment uncovered heroin, firearms, cash, and narcotics paraphernalia. Searchers at Aiello's house and warehouse, however, could not locate the drugs, the white powder, or the centerboards of the pallets.
recorded Aiello and Scaduto inside the Buffalo warehouse examining the marble tile pallets. On September 19, after Scaduto made plane reservations for three persons under the name "Amare", he, Graffeo and Lo Galbo flew back to New York City.
A seven count superseding indictment filed on October 20, 1983 charged 10 individuals with a variety of narcotics violations. Scaduto and Aiello were charged with conspiracy to import heroin and to distribute it, 21 U.S.C. Secs. 846, 963, importing heroin, 21 U.S.C. Secs. 952, 960, and managing a continuing criminal enterprise, 21 U.S.C. Sec. 848. Scaduto was also charged with possession with intent to distribute heroin, 21 U.S.C. Sec. 841. Appellant Bartolotta was charged with one count of conspiracy to possess heroin with intent to distribute, 21 U.S.C. Sec. 846. Seven other defendants, including the still-fugitive Ragusa, were charged with a variety of narcotics offenses.
The defendants moved to exclude the evidence obtained through the wiretap of Salemi's phone on the ground that the state had not properly obtained an extension of the wiretap authorization from the New York State Supreme Court. As part of the motion the defense argued that the court authorization for videotaping at the warehouse was based in part on the fruits of the allegedly unlawful wiretap and that the videotape should accordingly also be excluded. Aside from this there was no motion to suppress the videotaped evidence on constitutional or other grounds. Pointing out that only defendant Bartolotta had standing to challenge the wiretap evidence, Judge Costantino denied the defense motion to suppress the fruits of the wiretap, see United States v. Ragusa, 586 F.Supp. 1256 (E.D.N.Y.1984). The defense also moved unsuccessfully to exclude other evidence, including the items confiscated during the search of appellant Bartolotta's house.
At trial, government witnesses testified to the above events and introduced the physical evidence seized, including 24 kilograms of heroin. The prosecution played excerpts from the wiretaps and videotapes for the jury and contended that the surveillance film showed Aiello unloading the heroin and later inspecting it with Scaduto. At the conclusion of the government's case, the judge granted a judgment of acquittal to one defendant, Rita Volpe.
The defense tried, during opening statements, the body of the trial, and summations, to establish that if the government had made sound recordings at the Aiello warehouse, the conversations there would have revealed that the defendants had simply unloaded the tile, were irate at the breakage en route, and had worked to repair the damaged pallets. The defense contended that the government agents had purposefully failed to record sound because they knew that a sound recording would exculpate the defendants. To bolster this argument, the defense introduced testimony that the warehouse could have been wired for sound, contrary to testimony by one government witness. The defense also showed the jury portions of the videotapes other than those played by the prosecution. Other defense witnesses challenged testimony by a government expert that the overheard conversations included coded references to drugs.
On the Sunday following the close of the defense case, one of the jurors (juror No. 1) received two anonymous phone calls asking for her by name and inquiring whether she Following these conversations, the judge apprised counsel of the incident. All defendants moved for a mistrial. The judge then held a plenary hearing. In the presence of counsel but without the defendants (whom the judge excluded because of any possible chilling effect on the jurors), the judge separately questioned each juror out of the presence of the others. All defendants objected to being excluded from the hearing. However, the defense was allowed to submit questions to be put to the jurors.
was serving on a jury. During the second call the man said he wanted her to help a friend of his but he did not name anyone. In both cases, she hung up. Upset and alarmed, she telephoned the FBI and described herself to duty officer Marilyn Luck as "terrified." On the officer's advice, she spent the evening elsewhere without incident. On the following morning, as she was leaving her home, she was approached by a man whose voice she identified as the one she had heard on the telephone the day before. When the man, in an accent that "might have been Italian," asked whether she was Natalie, the juror rolled up the window of her car and drove off to the courthouse. Upon...To continue reading
Request your trial
-
State v. Johnson
...751 F.2d 128, 134-35 (2d Cir. 1984), cert. denied, 474 U.S. 830,106 S. Ct. 97, 88 L. Ed. 2d 79 (1985), and United States v. Aiello, 771 F.2d 621, 634-35 (2d Cir. 1985). The court decided that the conviction for the lesser offense should not be vacated on the theory that the role of double j......
-
US v. Gotti, No. CR-90-1051.
...surveillance order, at least where the state law is "designed to protect an individual's right of privacy." United States v. Aiello, 771 F.2d 621, 627 (2d Cir.1985). The other cases cited in the footnote all concerned warrants issued pursuant to state statute by a state court. The defendant......
-
United States v. Barker
...a federal criminal trial. Preston v. United States, 376 U.S. 364, 366, 84 S.Ct. 881, 882, 11 L.Ed.2d 777 (1964); United States v. Aiello, 771 F.2d 621, 627 (2nd Cir., 1985); United States v. McNulty, 729 F.2d 1243, 1251 (10th Cir.1983) (Doyle, J., concurring), reh'g en banc, 729 F.2d 1243, ......
-
US v. Gerena
...standards. As noted in United States v. Ragusa, 586 F.Supp. 1256, 1258 (E.D.N.Y.1984), affd. in pertinent part, United States v. Aiello, 771 F.2d 621 (2d Cir.1985) (quoting United States v. Butera, 677 F.2d 1376, 1380 (11th Cir.1982), cert. denied, 459 U.S. 1108, 103 S.Ct. 735, 74 L.Ed.2d 9......
-
Changing the tide of double jeopardy in the context of the continuing criminal enterprise.
...for either CCE or conspiracy, but if one of the convictions is overturned on appeal, the other may be reinstated); United States v. Aiello 771 F.2d 621, 632-35 (2d Cir. 1985) (holding that findings of guilt for CCE and conspiracy must be combined and entered as a single conviction); United ......