U.S. v. Badalamenti, s. 1327

• Decision Date: 02 July 1986
• Docket Number: Nos. 1327,D,1328 and 1343,s. 1327
• Parties: 21 Fed. R. Evid. Serv. 232 UNITED STATES of America, Appellee, v. Antonio BADALAMENTI, Andrea Gambino, Ferdinando Capasso, Defendants- Appellants. ockets 86-1063 to 86-1065.
• Court: U.S. Court of Appeals — Second Circuit

Page 821

794 F.2d 821

21 Fed. R. Evid. Serv. 232

UNITED STATES of America, Appellee, v. Antonio BADALAMENTI, Andrea Gambino, Ferdinando Capasso Defendants- Appellants.

Nos. 1327, 1328 and 1343, Dockets 86-1063 to 86-1065.

United States Court of Appeals Second Circuit.

Argued May 28, 1986.

Decided July 2, 1986.

Kerri Martin, Asst. U.S. Atty., S.D.N.Y. (Rudolph W. Guiliani, U.S. Atty., S.D.N.Y., Ruth Wedgwood, Asst. U.S. Atty., of counsel) New York City, for appellee.

Christine E. Yaris, New York City (Gerald L. Shargel, Alan Futerfas, Law Student, on brief, of counsel), for defendant-appellant Badalamenti.

Barry Bassis, The Legal Aid Soc., Federal Defender Services Unit, New York City, for defendant-appellant Gambino.

Louis M. Freeman, Freeman, Nooter & Ginsberg, of counsel, New York City, for defendant-appellant Capasso.

Before FEINBERG, Chief Judge, KEARSE and MAHONEY, Circuit Judges.

FEINBERG, Chief Judge:

Antonio Badalamenti, Andrea Gambino and Ferdinando Capasso appeal from judgments of conviction following a jury trial before Judge Peter K. Leisure in the United States District Court for the Southern District of New York. All appellants were convicted on one count of conspiracy to distribute heroin in violation of 21 U.S.C. Sec. 846; Capasso was also convicted on two counts of aiding and abetting the distribution of heroin and possession of heroin with intent to distribute, in violation of 21 U.S.C. Secs. 812, 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. Sec. 2. Appellants raise a number of issues on appeal, three of which merit detailed discussion. First, Badalamenti challenges the district judge's pre-trial ruling calculating the length of the government's delay in sealing tapes of intercepted conversations and his determination that the government had provided a satisfactory explanation for the delay. Second, Capasso claims that Judge Leisure improperly admitted an informant's hearsay statement against him under Fed.R.Evid. 803(3). Finally, Badalamenti objects to admission under Fed.R.Evid. 801(d)(2)(E) of co-conspirators' statements made before he joined the conspiracy. We find that the district judge's rulings on these issues were correct and that none of appellants' other arguments have merit. Accordingly, we affirm their convictions.

I. Background

Along with Giuseppe Venuti, Calogero Mannino, Federico Spatola, Antonio Trinajstic and Carlos Trinajstic, appellants were indicted in December 1984, after an extensive investigation by the Drug Enforcement Agency (DEA). ¹ From the evidence adduced at trial, the jury could have concluded that Spatola and Badalamenti supplied heroin to Mannino, Venuti and Antonio Trinajstic, who in turn distributed it to street-level dealers including undercover DEA agents and informants. During the course of their investigation, agents and informants purchased substantial quantities of heroin directly from Venuti, Mannino and Spatola. The members of the conspiracy communicated by using code references to heroin, such as "scissors," "haircuts" and "car." Gambino apparently assisted his brother-in-law Spatola by allowing him to use his restaurant for a meeting to negotiate a narcotics deal, handling money advanced for payment for heroin by a DEA agent and later relaying information to Spatola. Capasso, a long-time friend of Venuti, participated in several narcotics transactions between Venuti and undercover agents and informants and also acted as look-out on several occasions.

The 29-count indictment on which appellants were tried charged them and their co-defendants with conspiring to distribute heroin between July 1983 and December 1984 in violation of 21 U.S.C. Sec. 846 (count one). In addition to the conspiracy count, Capasso was charged with aiding and abetting the distribution of heroin (count eleven), possession of heroin with intent to distribute on two occasions (counts twelve and twenty-three) and aiding and abetting the distribution of heroin within 1,000 feet of a school (count twenty-eight), in violation of 21 U.S.C. Secs. 812, 841(a)(1), 841(b)(1)(A) and 845a and 18 U.S.C. Sec. 2. Prior to and during the course of the trial, all co-defendants except Carlos Trinajstic pled guilty to conspiracy and various substantive counts. ²

The government's proof at the month-long trial consisted principally of testimony by DEA agents who conducted surveillance or posed as narcotics dealers, conversations recorded by consent or pursuant to court-authorized electronic surveillance and pen register tapes. After the trial, the jury found Badalamenti, Gambino and Capasso guilty on the conspiracy count. The jury also found Capasso guilty on two of the aiding and abetting counts, but acquitted him on the other two. Judge Leisure sentenced Badalamenti to a five-year prison term; he sentenced Gambino to three years, with execution of the sentence suspended, and three years probation. Capasso was sentenced to time served on count one, concurrent three year terms on counts eleven and twelve, with execution suspended, three years probation and three years special parole. These appeals followed.

II. Sealing Delay

Wiretap evidence obtained under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Sec. 2510 et seq., must be presented to a judge for sealing "[i]mmediately upon the expiration of the period of the order, or extensions thereof," authorizing interception of the communication. 18 U.S.C. Sec. 2518(8)(a). The section further provides that "[t]he presence of the seal ..., or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire or oral communication...." In United States v. Gigante, 538 F.2d 502, 507 (2d Cir.1976), we held that a "satisfactory explanation is required, not only for total failure to seal the tapes, but for failure to seal the tapes 'immediately' as well." In that case, we affirmed the exclusion of evidence where the delays in sealing ranged from eight months to over a year. See also United States v. Vazquez, 605 F.2d 1269, 1278 (2d Cir.1979), cert. denied, 444 U.S. 981, 100 S.Ct. 484, 62 L.Ed.2d 408 (1980) (delay beyond one or two days calls for explanation). The wiretap orders in this case permitted electronic surveillance of Venuti's apartment and telephone and the telephone in Mannino's barbershop. District Judge Irving Ben Cooper authorized the first Venuti tape for a 30-day period beginning on October 1, 1984, but extended it for another 30 days, until November 30. Badalamenti did not seek to suppress evidence obtained under the first Venuti tap. As to the extension, the government concedes that interception ceased on November 16. Tapes obtained under this tap were sealed on December 7, seven days after the expiration date and 21 days after interception terminated. The Mannino tap, authorized on November 8, expired on December 8; those tapes were sealed on December 21, 13 days after expiration. Defendants moved to suppress the evidence obtained under the Venuti extension and the Mannino order, claiming that the government had failed to seal these tapes immediately, as section 2518(8)(a) requires.

Based on his construction of the statutory phrase, "the expiration of the period of the order," the district judge calculated the delay from the date that the orders expired. Accordingly, he charged the government with seven- and 13-day delays and then considered whether the government had provided the "satisfactory explanation" required by the statute. The government initially attributed the delays solely to the heavy workload of the Assistant United States Attorney responsible for sealing, Daniel Perlmutter (sometimes hereafter, the AUSA), but later cited a combination of his workload, illness, marital problems and illicit cocaine use as the cause. The AUSA did not testify. He indicated that, if called, he would invoke his privilege against self-incrimination. Defendants presented testimony to discount the time the AUSA actually spent on various matters and to show the lack of a "tickler system" to remind government attorneys of sealing deadlines.

After a five-day hearing, the district judge denied the motion to suppress. In his written opinion, he concluded that the "delays occurred because of the inability of a sick and severely troubled prosecutor to recognize his obligations under federal law." Although workload did not in and of itself provide an adequate explanation for the delay, Judge Leisure found that it "undoubtedly contributed to the sealing delays in this case." In evaluating the government's explanation, he also considered the length of the delays and the lack of evidence of tampering or prejudice to the defendants. See United States v. McGrath, 622 F.2d 36, 42-43 (2d Cir.1980).

On appeal, Badalamenti ³ argues that evidence from the Venuti extension and the Mannino order should have been suppressed. He claims that the district judge improperly calculated the length of the delay in sealing the Venuti extension tapes. He contends that the end of "the period of the order" in this case was the date interception ceased, November 16, not the date on which the order by its terms expired, November 30. On this view, the delay in sealing was 21 rather than seven days. In support of this construction, appellant cites section 2518(5), which requires that orders authorizing surveillance "terminate upon attainment of the authorized objective, or in any event in thirty days," and United States v. Ricco, 421 F.Supp. 401, 406-07 (S.D.N.Y.1976), aff'd on other grounds, 566 F.2d 433 (2d Cir.1977), cert. denied, 436 U.S. 926, 98 S.Ct. 2819, 56 L.Ed.2d 768 (1978) (sealing requirements triggered by expiration of order's time period or attainment of its objective, whichever is earlier). As to the explanation for the delay, appellant maintains that the government failed to establish that the AUSA's workload did not allow him the time required for...