U.S. v. Almonte

• Decision Date: 21 February 1979
• Docket Number: Nos. 77-1539,77-1540,s. 77-1539
• Citation: 594 F.2d 261
• Parties: UNITED STATES of America, Plaintiff, Appellee, v. Robert ALMONTE, Defendant, Appellant. UNITED STATES of America, Plaintiff, Appellee, v. Michael P. RICAPITO, Joseph F. Corrigan, Jr., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 261

594 F.2d 261

UNITED STATES of America, Plaintiff, Appellee, v. Robert ALMONTE, Defendant, Appellant.

UNITED STATES of America, Plaintiff, Appellee, v. Michael P. RICAPITO, Joseph F. Corrigan, Jr., Defendants, Appellants.

Nos. 77-1539, 77-1540.

United States Court of Appeals First Circuit.

Argued Dec. 5, 1978.

Decided Feb. 21, 1979.

John J. Bevilacqua, Providence, R.I., for Robert Almonte, defendant, appellant.

Charles J. Rogers, Jr., Alton W. Wiley, Providence, R.I., and William M. Kunstler, New York City, with whom Jacob R. Evseroff, Brooklyn, N.Y., was on brief, for Michael P. Ricapito and Joseph F. Corrigan, Jr., defendants, appellants.

Edwin J. Gale, Sp. Atty., Dept. of Justice, Providence, R.I., with whom Paul F. Murray, U.S. Atty., Providence, R.I., and Gerald E. McDowell, Sp. Atty., Dept. of Justice, Washington, D.C., were on brief, for plaintiff, appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

Appellants were convicted of fraudulent possession and sale of counterfeit Federal Reserve Notes and of conspiracy. On appeal, some or all of the appellants challenge the sufficiency of the government's affidavit supporting its application for a wiretap, alleged multiplicity in the conspiracy count, the trial court's refusal to reread large amounts of testimony to the jury, and raise the spectre of prejudicial influences on jurors. We affirm.

The facts of this case, read in the light most favorable to the government, See United States v. Gabriner, 571 F.2d 48, 50 (1st Cir. 1978), can be briefly summarized as follows. On November 11, 1976, an undercover Secret Service Agent purchased $3000 in counterfeit $50 dollar bills from appellant Almonte at a tavern in Providence, Rhode Island. On November 18, the agent again met with Almonte and purchased another $7000 in counterfeit $50's. At that time the agent met Almonte's colleague, Hanrahan, who was sent outside the tavern to obtain the bills once the deal was firmed up. On December 23, the agent and another Secret Service man met Almonte at a Holiday Inn in Providence. Almonte took the agents to Hanrahan's home near the tavern, entered the dwelling, and returned with $50,000 in counterfeit $50's.

In order to determine the source of the counterfeit, the government sought and obtained a wiretap order authorizing interception of calls by Almonte and Hanrahan. Meanwhile, the undercover agent began negotiations for a $400,000 purchase of counterfeit. The wiretap soon showed that Almonte obtained his counterfeit from Corrigan and that Corrigan approved Almonte's transactions. Specifically, on January 20, 1977, the agent arranged to purchase another $10,000 in counterfeit from Almonte. Almonte immediately called Corrigan to advise him of the deal. The sale took place on January 21, and, as arranged in a recorded phone conversation, Corrigan arrived shortly after the sale to meet Almonte.

On February 11, the agent ordered $300,000 from Almonte. Almonte immediately called Corrigan, who approved the sale and stated that delivery would be in $100,000 lots. Almonte informed the agent the following morning. The agent expressed extreme displeasure at the staggered delivery, backing out of the deal. Almonte then conferred with Corrigan by phone. Corrigan told Almonte the delivery plans were firm, saying, "we're not doing anything bigger than that." That afternoon, Corrigan called Ricapito to advise him of the status of the group's counterfeit dealings.

After further negotiations between Almonte and the agent, all of which were approved by Corrigan, a deal was struck on February 20 for the purchase and sale of $150,000 two days later. On February 21, Almonte, Hanrahan, and Corrigan met at Corrigan's home. That evening, Corrigan telephoned Ricapito to advise him that the two would probably have to meet the following day, assuming that the buyer's final telephone confirmation was received in the morning.

As agreed, the agent called Almonte on the morning of February 22 to verify the planned purchase. They agreed to meet between 12:30 p. m. and 1:00 p. m. Almonte immediately called Corrigan to indicate that the sale was set. Corrigan told Almonte to have Hanrahan stay at home. Corrigan then called Ricapito to indicate that he would need an additional eleven packages of $10,000 and advised him that the deal was set for one o'clock. Almonte then called Hanrahan and told him to wait at home for Corrigan, who would bring the counterfeit. Hanrahan called Corrigan to confirm his instructions. Corrigan then called Ricapito at his office and arranged to meet there at 11:30 a. m. Ricapito indicated that he had not yet obtained the necessary counterfeit.

At 10:30 a. m., Corrigan left his home carrying a black briefcase and drove off. He was later seen leaving Ricapito's office. Ricapito then left his office carrying the black briefcase. He took it to the home of his girl friend's daughter. Ricapito then drove to his girl friend's beauty shop and placed a brown briefcase in her locked car parked out front. Corrigan then arrived, obtained the keys to the locked car, took out the brown briefcase, and departed.

An hour later, the Secret Service purchased $150,000 in counterfeit from Almonte and Hanrahan at the latter's residence.

Arrests and searches began. The brown briefcase was at Hanrahan's home, empty. The black briefcase left with the daughter of Ricapito's girl friend contained $13,000 in counterfeit and papers belonging to Ricapito. The counterfeit $50's purchased on November 11 and November 18 were identical to those in the briefcase secreted by Ricapito. All of the counterfeit $50's showed the same cutting blade striations, indicating they were produced by the same counterfeiter. With the exception of the $13,000 found in Ricapito's briefcase, all of the counterfeit bills were packaged in the same way.

Based upon this evidence, the jury returned a verdict of guilty on all counts against all defendants.

The Wiretap Application

Appellants Ricapito and Corrigan attack the decision of a district judge to issue an intercept order, arguing that the Secret Service affidavit supporting the application failed to provide "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be dangerous." 18 U.S.C. § 2518(1)(c). Appellants unsuccessfully moved to suppress the fruits of the wiretap before the trial court.

We think that the affidavit allows us to "decide (that) the facts set forth in the application were minimally adequate to support the determination made" that an intercept order should issue. United States v. Scibelli, 549 F.2d 222, 226 (1st Cir.), Cert. denied, 431 U.S. 960, 97 S.Ct. 2687, 53 L.Ed.2d 278 (1977). A four month investigation of Almonte and Hanrahan preceded the wiretap application. More important, the affidavit recited Almonte's indication that the counterfeit was coming from someone higher up in the chain of distribution and provided the further information that following each of his numerous arrests, starting in 1947, Almonte had refused to cooperate in identifying his suppliers. The location of Almonte's home made physical surveillance to determine his source difficult if not impossible. The allegations setting forth the difficulty in penetrating beyond the retail level in a counterfeit distribution scheme were nothing like the bare conclusory statements of past experience that we abjured in United States v. DeMuro, 540 F.2d 503, 510 (1st Cir. 1976), Cert. denied, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977). Rather, the affiant set forth that the Secret Service had failed to penetrate past the retail level of the very same counterfeiting ring producing the same bills in other cities. It was reasonable to believe that the secretive organization encountered in other cities was the same organization encountered in Providence, and normal investigative techniques were likely to produce the same failures. Finally, analysis of toll call records had failed to identify Almonte's supplier a predictable result because there was a central distributor located in Providence.

In sum, the affidavit sufficiently explained why this was an appropriate situation to use wiretaps to locate the source and ultimately the producer of contraband. We are not impressed by appellants' argument that there was no difficulty in obtaining evidence against Almonte and Hanrahan. An investigation of a counterfeiting ring need not stop with the retailers. United States v. Staino, 358 F.Supp. 852 (E.D.Pa.1973). Finally, appellants' objection to the use of wiretap evidence against persons not named in the application is frivolous. Conspirators whose conversations are to be intercepted need only be named if "known". 18 U.S.C. § 2518(1)(b)(iv).

"Multiple" Conspiracies

Appellants Ricapito and Corrigan next argue that their conviction for conspiracy was fatally defective because there was no evidence to link them to the pre-wiretap sales of counterfeit. Appellants rely on Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) in arguing further that the unclear and confused evidence of their later involvement was made more convincing by the impermissible implication of their involvement with the earlier sales.

We see the matter differently. As to Corrigan, there was overwhelming evidence from the wiretaps that he was the man controlling Almonte's operation from the beginning. As to both Corrigan and Ricapito, there was sufficient evidence in the nature of the counterfeit, in its consistent packaging, and in the well coordinated and obviously experienced cooperation of the defendants as a distribution team on February 22, for a jury to find beyond a reasonable doubt that all of the sales were made through the medium of a classic chain conspiracy.

Finally, even if we were not...