U.S. v. Amen, s. 1167

• Decision Date: 07 October 1987
• Docket Number: Nos. 1167,D,1169,1168,1120,s. 1167
• Citation: 831 F.2d 373
• Parties: UNITED STATES of America, Appellee, v. Angelo AMEN, Mark A. Deleonardis, Michael Paradiso and Oreste Abbamonte, Jr., Appellants. ockets 87-1028, 87-1034, 87-1040, 87-1049.
• Court: U.S. Court of Appeals — Second Circuit

Page 373

831 F.2d 373

UNITED STATES of America, Appellee, v. Angelo AMEN, Mark A. Deleonardis, Michael Paradiso and Oreste Abbamonte, Jr., Appellants.

Nos. 1167, 1120, 1168, 1169, Dockets 87-1028, 87-1034,

87-1040, 87-1049.

United States Court of Appeals, Second Circuit.

Argued June 15, 1987.

Decided Oct. 7, 1987.

Lawrence H. Schoenbach, New York City, for appellant Amen.

Michael P. Joseph, New York City (Joseph & Stalonas, New York City, of counsel), for appellant Deleonardis.

John L. Pollok, New York City, (Todtman, Hoffman, Epstein, Young, Goldstein, Tunick & Pollok, P.C., Charles L. Weintraub, New York City, of counsel), for appellant Paradiso.

Richard B. Mazer, San Francisco, Cal. (Law Offices of Richard Mazer, David A. Nickerson, of counsel), for appellant Abbamonte, Jr.

Annmarie Levins, Asst. U.S. Atty. (Rudolph W. Giuliani, U.S. Atty., for the Southern District of New York, Steven A. Standiford, Kenneth Roth, Asst. U.S. Attys., of counsel), for appellee.

Before OAKES, MESKILL, and PRATT, Circuit Judges.

OAKES, Circuit Judge:

Angelo Amen, Mark Deleonardis, Michael Paradiso, and Oreste Abbamonte, Jr., four of fourteen original defendants in a twenty-three count indictment, appeal convictions entered in the United States District Court for the Southern District of New York, Robert L. Carter, Judge. Following denial of their suppression (and certain other) motions in United States v. Vasta, 649 F.Supp. 974 (S.D.N.Y.1986), appellants Amen and Deleonardis pleaded guilty to all the counts in which they were named, including Count One, alleging a conspiracy to distribute and possess with intent to distribute heroin in violation of 21 U.S.C. Sec. 846 and Counts Five through Ten and Counts Six through Nine respectively charging Deleonardis and Amen with distributing heroin. Abbamonte, Paradiso, and six other codefendants were convicted after a jury trial, Abbamonte of Count One, the conspiracy count, Count Three, operating a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848, and Counts Seven and Eight, distributing heroin. Paradiso was convicted on Counts One and Four, Count Four charging aiding and abetting Abbamonte in the operation of his continuing criminal enterprise in violation of 21 U.S.C. Sec. 848 and 18 U.S.C. Sec. 2.

On January 14, 1987, Judge Carter sentenced Amen to a twenty-year prison term on Count One, to run consecutively to a nine-year prison term imposed by David N. Edelstein, United States District Judge, on July 22, 1986, for Amen's conviction in United States v. Delvecchio and Amen, 86 Cr. 305 (S.D.N.Y.), aff'd in part, rev'd in part, 816 F.2d 859 (2d Cir.1987). In addition, Judge Carter sentenced Amen to concurrent twenty-year terms on Counts Seven and Eight. On the same day, Judge Carter sentenced Mark Deleonardis to a twenty-year prison term on Count One, a consecutive five-year prison term on Count Six, and concurrent twenty-year prison terms on each of Counts Five, Seven, Eight, Nine, and Ten. Judge Carter also imposed lifetime special parole on Deleonardis.

On January 15, 1987, Judge Carter sentenced Abbamonte to life imprisonment on Count Three and imposed concurrent forty-year prison terms on each of Counts One, Seven, and Eight. In an endorsement dated January 16, 1987, Judge Carter corrected the judgment to reflect his intention to impose the sentence on Count One consecutive to the term that Abbamonte was already serving for 1983 narcotics convictions. On January 15, 1987, Paradiso received consecutive twenty-year prison sentences on Counts One and Four.

The evidence establishing a heroin enterprise run from the federal penitentiary at Lewisburg, Pennsylvania, consisted primarily of communications taped under the prison monitoring system. Paradiso and Abbamonte argue that the trial court improperly denied their motion to suppress these tapes (hereinafter the "Lewisburg tapes"). Abbamonte argues that there was insufficient

                evidence to establish that he operated a continuing criminal enterprise because the Government failed to establish that he acted in concert with five or more persons with respect to whom he occupied the position of organizer, supervisor, or manager.  He contends that the only properly admitted evidence related to four such persons.  Paradiso argues that he should not have been convicted for aiding and abetting Abbamonte's continuing criminal enterprise because (A) he was not chargeable with such an offense, (B) the court's instruction on aiding and abetting was erroneous, and (C) the evidence was insufficient to prove that he aided and abetted Abbamonte in the management and operation of a continuing criminal enterprise.  Abbamonte also argues that he was denied effective assistance of counsel by virtue of a denial of a motion for adjournment.  Amen and Deleonardis argue that their sentences violate the Eighth Amendment prohibition against cruel and unusual punishment.  Abbamonte and Paradiso argue, and the Government concedes, that they should not have been sentenced on Count One, the conspiracy count, unless their respective convictions for operating a continuing criminal enterprise ("CCE") and aiding and abetting such operation are overturned.    United States v. Aiello, 771 F.2d 621, 632-35 (2d Cir.1985);  United States v. Osorio Estrada, 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).  We affirm as to all appellants except that we reverse the judgment against Paradiso for aiding and abetting Abbamonte's CCE and we "combine" Abbamonte's conviction for conspiracy into the greater offense of CCE in accordance with Aiello and Osorio Estrada
                

FACTS

Although the principal evidence in the case pertains to the Lewisburg heroin enterprise, evidence of Abbamonte's involvement in a supervisory capacity in heroin trafficking in 1982 and 1983 was introduced as proof that he operated a CCE. On October 20, 1982, a Drug Enforcement Administration ("DEA") undercover agent purchased from Abbamonte and Joseph Delvecchio three kilograms of heroin and made arrangements on November 3, 1982, to purchase seventeen more. This resulted in the seizure of nine kilograms and Abbamonte's and Delvecchio's arrest. Both were jailed at the Metropolitan Correction Center ("MCC"). One of Abbamonte's most frequent visitors was Amen and one of Delvecchio's was his brother, Richard. Later Richard also visited Abbamonte. On several occasions, Amen and Richard visited Abbamonte together. In April 1983, another member of the conspiracy, Lorenzo DiChiara, began cooperating with the Government and was released from the MCC. After DiChiara's release, Richard Delvecchio and Amen repeatedly approached him to buy drugs. On May 14, 1983, in the presence of a DEA agent, Delvecchio and Amen expressed a desire to purchase ten kilograms of heroin at $195,000 per kilogram, taking five kilograms on credit. The drug agent, purporting to be the nephew of the supplier of the nine kilograms of heroin which had been seized, claimed that they still owed his uncle money for the seized heroin. Amen argued that his organization, the Abbamonte organization, should be charged only $80,000 per kilogram for the seized heroin but the agent disputed that his uncle had ever agreed to a reduction in price. An agreement was made to purchase five kilograms of heroin for $190,000 each, but the sale never took place, apparently because Richard Delvecchio and/or Amen suspected surveillance. Eventually, Abbamonte pleaded guilty to two substantive narcotics violations and to conspiracy to distribute heroin. Testimony by undercover and surveillance agents, as well as Abbamonte's guilty plea allocution, established that he supervised, managed, and organized Joseph Delvecchio during the two 1982 heroin transactions with the undercover agent.

The Lewisburg heroin enterprise, as to which there was ample proof, was discovered after a defendant in an unrelated narcotics case began cooperating with the Government. He told a DEA agent that his cousin, Lawrence Jackson, an inmate at the Lewisburg Penitentiary, was coordinating heroin transactions from inside the prison. With the assistance of the cooperating defendant, DEA Special Agent Charles Howard established contact with Jackson; DEA Special Agents Ruth Beaver and Livia Adams, posing as Agent Howard's girlfriends, received telephone calls from Jackson. Sixty-seven tapes made by these three agents were introduced into evidence.

In addition, prison officials made 130 tapes of conversations of Abbamonte and Paradiso with their codefendants. In these tapes, as well as in the Jackson tapes, various codes referred to drug transactions:

"lawyers" indicated sources of heroin and "going to court" or similar expressions referred to heroin transactions. Indeed, when one heroin dealer refused to make repeated sales to Agent Howard, Jackson agreed to find him another "lawyer." In December 1984, Jackson promised to put Agent Howard in contact with a source of heroin known as "F. Lee Bailey." The "F. Lee Bailey" source, the evidence indicated, was the organization of appellant Abbamonte.

On January 5, 1985, appellant Mark Deleonardis, acting on instructions fromAbbamonte and identifying himself as "your friend from Lewisburg," quoted Agent Howard prices for various amounts of heroin and suggested a meeting. Shortly thereafter, Jackson confirmed that Deleonardis was "F. Lee Bailey." On January 11, 1985, Deleonardis met Agent Howard at a hotel in Queens. Deleonardis indicated that Abbamonte, his "friend at Lewisburg," had told him to provide Agent Howard with "quality heroin." On February 7, 1985, he sold 129 grams of heroin to Agent Howard for $32,500 cash. Three days later, Jackson called Agent Howard to report that "F. Lee Bailey" was pleased with the deal. On February 12, and again on February 20, Deleonardis visited Abbamonte at Lewisburg. On February 14, Agent Howard complained to Jackson about the quality...