U.S. v. Berkowitz

• Decision Date: 07 December 1981
• Docket Number: No. 80-5537,80-5537
• Citation: 662 F.2d 1127
• Parties: 9 Fed. R. Evid. Serv. 864 UNITED STATES of America, Plaintiff-Appellee, v. Ronald BERKOWITZ, Paul D'Alessandro, Kevin Van Coughnett, Bisan Vafaie, and Wendall Howell, Defendants-Appellants. . * Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1127

662 F.2d 1127

9 Fed. R. Evid. Serv. 864

UNITED STATES of America, Plaintiff-Appellee, v. Ronald BERKOWITZ, Paul D'Alessandro, Kevin Van Coughnett, Bisan Vafaie, and Wendall Howell, Defendants-Appellants.

No. 80-5537.

United States Court of Appeals, Fifth Circuit. ^*

Unit B

Dec. 7, 1981.

Entin, Schwartz, Angert & Dion, Ronald A. Dion, North Miami Beach, Fla., for Berkowitz.

Nancie G. Severs, Fort Lauderdale, Fla., for Coughnett.

Marc S. Nurik, John F. O'Donnell, Plantation, Fla. (Court-Appointed), for Vafaie and D'Alessandro.

Stuart A. Tarlowe, Fort Lauderdale, Fla. (Court-Appointed), for Howell.

Bruce A. Zimet, Asst. U. S. Atty., Fort Lauderdale, Fla., for plaintiff-appellee.

Before MORGAN, TJOFLAT and ANDERSON, Circuit Judges.

R. LANIER ANDERSON, III, Circuit Judge:

We are called upon to decide the appeals of five criminal defendants convicted after a jury trial in the Southern District of Florida of conspiracy to distribute cocaine, possession with intent to distribute cocaine, and distribution of cocaine, in violation of 21 U.S.C.A. Secs. 841(a)(1), 846, and 18 U.S.C.A. Sec. 2 (West 1976). Appellants raise several overlapping and individual points concerning denial of motions for severance, limiting cross-examination of a government witness, suppression of evidence, conduct of counsel for some co-defendants, and sentences imposed by the trial court. After careful consideration, we reject all of appellants' contentions and affirm the district court.

I. FACTS.

Sometime in the spring or summer of 1979, defendant-appellant Bisan Vafaie through a mutual friend met the government's confidential informant Ralph Nieves at a New York discotheque. Vafaie, of course, at that time was unaware of Nieves' activities as a confidential informant. Nieves asked Vafaie whether Vafaie knew where a quantity of cocaine might be procured. Vafaie responded that his roommate might be of some assistance and gave Nieves the telephone number of Vafaie's apartment in New Haven, Connecticut. Thereafter, confidential informant Nieves contacted Vafaie and Vafaie's roommate, defendant-appellant Kevin Van Coughnett, and set up a meeting in New Haven on October 15, 1979, between Vafaie, Van Coughnett, Nieves, and special agent Michael Pavlick. Special agent Pavlick, operating in an undercover capacity, was presented to Vafaie and Van Coughnett as a buyer seeking a source of cocaine. Pavlick, Nieves, Vafaie and Van Coughnett arranged a trip to Florida where Van Coughnett would introduce Nieves and a colleague of Pavlick's to a supplier of cocaine.

Following several telephone calls and a luncheon meeting in New York, confidential informant Nieves, appellant Vafaie, and appellant Van Coughnett on October 18, flew to Ft. Lauderdale, Florida. The three were greeted at the Ft. Lauderdale airport by special agent William Silvestri, who was introduced as special agent Pavlick's contact in Florida. Vafaie, Nieves, and Silvestri went to the Ft. Lauderdale Beach Club where they were joined shortly by Van Coughnett and his friend, defendant Pat Haughey. ¹ Haughey subsequently brought Van Coughnett to defendant Edward Korp's ² house and Van Coughnett returned to the Beach Club to lead Silvestri and Nieves to Korp's house. Korp brought Silvestri and Nieves to the house of the source of supply, apartment number 207 in the Hidden Harbor Condominium in Ft. Lauderdale where a kilogram of cocaine was to be delivered to Silvestri. Inside this apartment were defendant-appellant Paul D'Alessandro, defendant-appellant Wendall Howell, ³ ] defendant Charles Hovan, ⁴ and defendant Vincent Anzelone, ⁵ who were all sitting around the coffee table on which there was a sample of cocaine. Special agent Silvestri conducted a field bleach test on the sample of cocaine and concluded that it was cocaine. Confidential informant Nieves and all of the defendants present snorted some of the sample. Each of the defendants in the apartment commented on the high quality of the cocaine.

Special agent Silvestri then inquired about the kilogram of cocaine and was informed by appellant D'Alessandro that this would not be produced until Silvestri showed the purchase money. Silvestri discussed with Howell, D'Alessandro, Anzelone, Korp, and Hovan the risk and equities of producing the cocaine or the purchase money first. Eventually, appellant D'Alessandro placed a telephone call and, accompanied by defendant Anzelone, left the apartment to get the kilogram.

While D'Alessandro was gone, Hovan received at the apartment a telephone call from D'Alessandro inquiring whether a scale to weigh the cocaine could be obtained. Appellant Howell responded by placing a telephone call and stating that he could secure a scale. Howell then left the apartment and returned with a paper bag which contained a scale.

Upon departing the apartment, D'Alessandro and Anzelone were observed by surveillance agents to travel in a blue Datsun automobile to the home of defendant-appellant Ronald Berkowitz in Tamarac. During this trip, the surveillance agents lost sight of the Datsun for about five to ten minutes and reestablished surveillance of the car when they located it parked in the driveway of Berkowitz' house. About fifteen minutes after resuming surveillance, the agents saw D'Alessandro, who was carrying a package under his arm, and Berkowitz leave the house and enter the Datsun. D'Alessandro placed the package behind the driver's seat and seated himself in the driver's seat; Berkowitz sat in the passenger seat. The agents followed the Datsun back to the Hidden Harbor Condominium where D'Alessandro, carrying the package, and Berkowitz entered apartment 207. Still waiting in the apartment were special agent Silvestri, confidential informant Nieves and defendants Howell, Korp and Hovan.

D'Alessandro placed the package that he had been carrying on the table and stated that it was the kilogram of cocaine. Special agent Silvestri, assisted by Berkowitz, began to unwrap the package and to examine its contents. Silvestri conducted another field test on the contents of the package and concluded that it was cocaine. Appellant Berkowitz at this point took a razor blade and cut the chunks of cocaine to demonstrate its quality. Berkowitz also pressed the cocaine with his finger and commented on the cocaine's softness and quality.

Silvestri told the defendants that he would take the cocaine, and left the apartment on the pretense of obtaining the purchase money and buying plastic bags to use to weigh the cocaine. Berkowitz, D'Alessandro, Howell, Hovan, Korp, confidential informant Nieves and the cocaine remained inside the apartment. Special agent Silvestri returned to the apartment with several other agents and obtained entry by maintaining his undercover role (i. e., the buyer of the cocaine). Once admitted to the apartment, special agent Silvestri and the other agents identified themselves as law enforcement agents, arrested all of the defendants present, and seized the cocaine which had remained in plain sight on the table. The remaining defendants not present in the apartment were subsequently arrested at various locations in the Ft. Lauderdale area.

II. SEVERANCE.

The point pressed most strenuously on appeal by appellants Vafaie, Van Coughnett, D'Alessandro, and Howell is that the district court committed reversible error in failing to grant one or more of the defendants' motions for severance. Although none of the appellants made a pretrial motion for severance, numerous motions for severance were made throughout the trial. The failure to move for severance before trial, of course, is not fatal to appellants' claims. The district court has a continuing duty to monitor the entire trial for prejudice and to order severance if such prejudice does arise. Schaffer v. United States, 362 U.S. 511, 516, 80 S.Ct. 945, 948, 4 L.Ed.2d 921 (1960); United States v. Clark, 480 F.2d 1249, 1252 (5th Cir.), cert. denied, 414 U.S. 978, 94 S.Ct. 301, 38 L.Ed.2d 222 (1973). The district court denied all of the defendants' motions for severance.

Appellants do not contest that joinder was proper under Fed.R.Crim.P. 8(b). Appellants instead claim that they were prejudiced by their joint trial and entitled to relief under Fed.R.Crim.P. 14. ⁶

Under Rule 14, the decision to grant a severance is committed to the sound discretion of the district court. United States v. Crawford, 581 F.2d 489, 491 (5th Cir. 1978); United States v. Swanson, 572 F.2d 523, 528 (5th Cir.), cert. denied, 439 U.S. 849, 99 S.Ct. 152, 58 L.Ed.2d 152 (1978). In deciding a motion for severance, the district court must balance the potential prejudice to the defendant against the public interest in joint trials where the case against each defendant arises from the same general transactions. The judgment of the district court in assessing this balance will not be disturbed absent an affirmative showing of abuse of discretion. United States v. Swanson, 572 F.2d at 528; United States v. Martinez, 466 F.2d 679, 686 (5th Cir. 1972), cert. denied, 414 U.S. 1065, 94 S.Ct. 571, 38 L.Ed.2d 469 (1973). On appeal from the denial of a motion for severance, an appellant 'must show something more than the fact that 'a separate trial might offer him a better chance of acquittal." Tillman v. United States, 406 F.2d 930, 935 (5th Cir.), vacated in part on other grounds, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 (1969). See also United States v. Dennis, 645 F.2d 517, 521 (5th Cir. 1981). To secure a reversal, more than some prejudice must be shown; the appellant must demonstrate that he received an unfair trial and suffered compelling prejudice against which the trial court was unable to afford protection. United States v. Sheikh, 654 F.2d 1057, 1065 (5th Cir. 1981); United States v. Perez, 489 F.2d 51, 65 (5th Cir. 1973), cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974). With these considerations in mind, we turn to the claims of the...