U.S. v. Beltempo
| Decision Date | 23 March 1982 |
| Docket Number | D,648 and 649,Nos. 612,s. 612 |
| Citation | 675 F.2d 472 |
| Parties | 10 Fed. R. Evid. Serv. 1165 UNITED STATES of America, Plaintiff-Appellee. v. Vincent BELTEMPO, Guiseppe Gallina, a/k/a "Fillipo", and Barbara Walberg, Defendants-Appellants. ockets 81-1392, 81-1394 and 81-1396. |
| Court | U.S. Court of Appeals — Second Circuit |
Gerald Alch, Boston, Mass. (Joseph S. Oteri, Martin G. Weinberg, James W. Lawson, Oteri & Weinberg, Boston, Mass., of counsel), for defendant-appellant Beltempo.
James O. Druker, Mineola, N. Y. (Paula Schwartz Frome, Kase & Druker, Mineola, N. Y., of counsel), for defendant-appellant Gallina.
David Ely, New York City (Alan Scribner, Ivan S. Fisher, New York City, of counsel), for defendant-appellant Walberg.
Reena Raggi, Asst. U. S. Atty., E. D. N. Y., Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., John Latella, Asst. U. S. Atty., E. D. N. Y., Brooklyn, N. Y., of counsel), for the United States of America.
Before MESKILL and CARDAMONE, Circuit Judges, and HOLDEN, District Judge. *
In February 1981 United States Customs officials at Kennedy International Airport in New York discovered sixteen pounds of heroin concealed in the false bottoms of suitcases belonging to a couple attempting to enter the United States. Carefully deploying their investigative nets the authorities discovered six others whom they indicted along with this couple as part of a conspiracy to smuggle heroin into the country. The indictments charge that from mid-January to mid-February 1981 these eight individuals attempted to smuggle forty-and actually smuggled twenty-four-pounds of heroin from Palermo, Sicily to New York. In the haul that followed only five of the conspirators were caught; three remain at large. Of the five that were apprehended, one plead guilty on the eve of trial, one was acquitted at its conclusion, the remaining three were found guilty after a jury verdict and are before us on this appeal.
Vincent Beltempo, charged with having conspired unlawfully to import heroin in violation of 21 U.S.C. § 963 (Count I), with twice having unlawfully imported heroin, first on January 17, 1981 and then on February 7, 1981, in violation of 21 U.S.C. §§ 952(a) and 960(a)(1) (Counts III and VI), and with twice having unlawfully possessed heroin intending to distribute it in violation of 21 U.S.C. § 841(a)(1) (Counts IV and VII), was found guilty on all five counts. He is presently serving concurrent terms of fifteen years imprisonment on each count, was fined $25,000 on each count, for a total fine of $125,000, and was given lifetime special parole on the substantive counts.
Giuseppe Gallina, charged with having conspired unlawfully to import heroin in violation of 21 U.S.C. § 963 (Count I), with having distributed heroin abroad intending that it be unlawfully imported into the United States, in violation of 21 U.S.C. § 959 (Count II), and with having unlawfully imported heroin into the United States on January 17, 1981 in violation of 21 U.S.C. §§ 952(a) and 960(a)(1) (Count III), was found guilty on all three counts. He is presently serving concurrent terms of twelve years imprisonment on each count, was fined $25,000 on each count, for a total fine of $75,000, and was given lifetime special parole on the substantive counts.
Barbara Walberg, charged with having conspired unlawfully to import heroin in violation of 21 U.S.C. § 963 (Count I), with having unlawfully imported heroin into the United States on February 7, 1981 in violation of 21 U.S.C. §§ 952(a) and 960(a)(1) (Count VI), and with having unlawfully possessed heroin intending to distribute it in violation of 21 U.S.C. § 841(a)(1) (Count VII), was found guilty on all three counts. She was sentenced to concurrent terms of two years imprisonment on each count, and given eight years special parole on the substantive counts. She is free on bail pending the outcome of this appeal.
The government's principal witness at trial was Antonia Ganguzza who stated that in early January 1981 she was romantically involved with Anthony Beltempo ("Tony"), defendant Vincent Beltempo's nephew. 1 Under a grant of immunity she testified that Tony persuaded her to accompany him on a trip to Italy for the purpose of carrying back drugs, for which he agreed to pay her $10,000. On January 13 she, Tony and Paul Galgano 2 flew to Palermo, Sicily where they met Tony's "Uncle Jimmy," identified by her at trial as defendant Vincent Beltempo. Vincent Beltempo later introduced her to a man called "Phillipe," whom she identified in court as defendant Giuseppe Gallina.
On January 15, 1981 Ganguzza, Galgano and the two Beltempos again met with Gallina who took them shopping for the clothing they would need to conceal the packages they planned to carry. Later that day Vincent Beltempo, Gallina, Ganguzza and Galgano went to Gallina's apartment. They were subsequently joined there by Tony Beltempo and Ronald Rizzo. 3 At the apartment Ganguzza and Galgano dressed in the undergarments they had recently purchased, concealing under them ten one-pound packets of heroin. The two Beltempos and Gallina then appraised their appearance to make sure that neither looked "too bulky." That evening Tony Beltempo, Ganguzza, Galgano and Rizzo left for Rome. They were taken to the train station in two cars, one driven by Giuseppe Gallina and one by his brother Salvatore. 4
The four arrived in Rome on January 16, 1981, carrying the heroin packets. Although they already had round-trip tickets, Tony Beltempo sent Galgano to purchase new return trip tickets to New York for the two of them and Ganguzza because of Vincent Beltempo's warning that the trio might arouse the suspicion of customs officials in New York were their tickets to show too short a stay.
The following day Tony Beltempo, Galgano and Ganguzza prepared to leave Rome and return to New York. Ganguzza concealed seven heroin packets on her body; Galgano concealed three. Tony Beltempo advised the two couriers that when they arrived in New York each should go through customs as if traveling alone. He further warned them not to get excited if they saw him being questioned since his name was in "a computer." Following these directions the two couriers and Beltempo successfully smuggled the drugs through customs at Kennedy Airport and then went to a New Jersey motel where Ganguzza and Galgano gave the heroin packets to Tony Beltempo. The following day Tony Beltempo paid Ganguzza $10,000 for her part in the smuggling venture.
Promised another $10,000 if she would act as a courier again, Ganguzza left New York on Monday January 26, 1981 arriving in Rome, Italy the following day. She checked into the Metropole Hotel, called Rizzo and arranged to meet him. Rizzo came to the hotel accompanied by a woman whom he introduced as "Barbara," identified by the witness at trial as the defendant Barbara Walberg. In Walberg's presence Ganguzza asked Rizzo "what was going on," where the "stuff" was and when she was to leave. Rizzo told her there was "nothing here yet," and that he "hadn't heard from anybody."
On February 1, 1981 Rizzo telephoned Ganguzza to say that he and Walberg would be coming over to her hotel. They arrived accompanied by a man identified as "Sal," whom Ganguzza recognized from her previous trip as Giuseppe Gallina's brother. Walberg told Ganguzza that there had been a change in plans, that they would all be going first to Sicily and that "Sal" would explain. When the four of them arrived in Sicily they went to the same apartment where Ganguzza had first seen the heroin on her earlier trip. Salvatore Gallina explained that he shared this apartment with his brother "Phillipe," whom he said had returned to New York. Gallina informed the three couriers that instead of carrying the heroin concealed on their bodies, they would carry false bottom suitcases. On the morning of February 7, 1981 Rizzo, Walberg, Ganguzza and Salvatore Gallina left the apartment where they had all been staying and drove to the airport. There the group was approached by a man introduced by Salvatore Gallina as "Joe," identified at trial as the defendant, Giuseppe Aiello. 5 Gallina had told Walberg and Ganguzza earlier that "an Italian" would travel with them from Italy and that the group should act like a family. The flight from Palermo to New York was uneventful and, after she cleared customs, Ganguzza called Tony Beltempo who arranged to meet her in New Jersey.
Beltempo was surprised to learn that these packages of heroin were concealed in suitcases and not carried on the couriers' bodies. Unable to find the heroin packets in the suitcases, he told Ganguzza they would take the suitcases and go meet his "Uncle Jimmy." From there the three of them went to Vincent Beltempo's apartment on the Upper East Side of Manhattan. At the apartment Ganguzza told Vincent Beltempo in more detail about what had happened, while Tony took a screwdriver and punched a hole in the center of one of the suitcases. White powder spilled onto the rug. With a knife and hammer Tony chiseled around the outside of the suitcase until he could remove the outer shell. Taped inside were thin packets of heroin.
On April 1, 1981, pursuant to a search warrant, Drug Enforcement Administration (DEA) chemist Stanley Blashof searched Vincent Beltempo's apartment for traces of heroin. He testified that heroin traces were found in a vacuum cleaner bag, on a screwdriver and in the living room rug.
The defendants raise a number of issues on this appeal, several of which warrant discussion. These contentions will be analyzed in the context of the facts and law applicable to each.
The principal thrust of Beltempo's argument before us is that the district court incorrectly failed to suppress evidence of the heroin traces found in his apartment. He claims (1) that the search warrant procured by the DEA was based...
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