U.S. v. Clark, s. 1227
| Decision Date | 28 December 1979 |
| Docket Number | 1302,Nos. 1227,D,s. 1227 |
| Citation | 613 F.2d 391 |
| Parties | 5 Fed. R. Evid. Serv. 463 UNITED STATES of America, Appellee, v. Kenneth CLARK and Eric Romandi, Defendants-Appellants. ockets 79-1142, 79-1175. |
| Court | U.S. Court of Appeals — Second Circuit |
Howard D. Stave, Forest Hills, N. Y., for defendant-appellant Clark.
Thomas E. Bowsman, New York City, for defendant-appellant Romandi.
Mark A. Summers, Asst. U. S. Atty., Eastern District of New York, Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., Mary McGowan Davis, Asst. U. S. Atty., Eastern District of New York, Brooklyn, N. Y., of counsel), for the United States of America.
Before MESKILL, Circuit Judge, KELLEHER * and HOLDEN, ** District Judges.
Kenneth Clark and Eric Romandi appeal from judgments of conviction in the District Court for the Eastern District of New York, entered by Judge Eugene H. Nickerson on April 2 and April 30, 1979, respectively. The defendant Clark was found guilty of Counts Six and Eight of importing or aiding and abetting the importation of substantial amounts of heroin from Bangkok, Thailand, into the United States in July and September 1977, in violation of 21 U.S.C. §§ 952(a) and 960(a)(1) and 18 U.S.C. § 32. Romandi was found guilty of Count Eight for the September importation. 1
The combined appeals present the restless question of collateral estoppel generated by The appellant Clark also contends that the Government's summation deprived him of a fair trial. He further claims that the court's supplemental instructions to the jury introduced prejudicial error which required reversal of his conviction.
the prior acquittal of both defendants on October 30, 1978, after a seven week jury trial on an earlier indictment. Count Two of that indictment charged the appellants and other defendants with conspiring to import, to possess with intent to distribute and to distribute substantial amounts of heroin during the life of the conspiracy, in violation of 21 U.S.C. § 846. 2 The main thrust of the appeals is double jeopardy. The principal focus is on the error assigned to the admission into evidence at the second trial of statements of co-conspirators who allegedly participated in the conspiracy charged in Count Two, wherein the appellants were found not guilty at the first trial. Both defendants contend this evidence should have been excluded by the doctrine of collateral estoppel.
Romandi's appeal challenges the sufficiency of the evidence to support the offense of importation. He contends that the trial court's restriction of his cross-examination of a government witness was in error. Lastly, he attacks the ruling of the district court which declared a mistrial after the jury failed to reach a verdict in the prior prosecution.
The appellants were first brought to trial on a ten count indictment which accused Clark and Romandi and sixteen others with participating in an extensive and far-reaching conspiracy which, according to the Government, was organized and principally directed by Charles Praetorius. This defendant was singly charged in Count One of a continuing series of violations of the federal narcotic law in violation of 21 U.S.C. § 848. He was also charged in subsequent counts of substantive offenses with distribution of heroin on two separate occasions. All eighteen of the defendants were charged in Count Two with conspiracy to import, to possess with intent to distribute and to distribute large quantities of heroin during the period from September 1, 1976 through March 1, 1978. Six of the remaining counts charged various defendants with importing or aiding and abetting the import of heroin on successive dates. Count Six charged the appellant Clark and others with the importation of 2 kilograms of heroin on July 14, 1977. Count Eight charged both appellants Clark and Romandi, Charles Praetorius, his wife Diane Praetorius, and Vincent Auletta with importing and aiding and abetting the importation of 4 kilograms of heroin on September 27, 1977.
The trial of thirteen defendants, charged in the original indictment, commenced September 18, 1977, before Judge Nickerson.
The Government's case in the first trial revolved around the testimony of Ralph Abruzzo and Glenston Page Laws, who were leading subordinates in Praetorius' organization and management of the narcotic enterprise. 3
The combined testimony of Abruzzo and Laws related to a series of six journeys to Bangkok; the first on September 6, 1976, the last on December 19, 1977. The trips corresponded in time and sequence to six successive counts in the indictment. Charles Praetorius was named in all but Count Seven; Laws was named in Six, Seven and Ten. The appellant Clark was charged in Count Six, involving 2 kilograms of heroin in the offense of July 14, 1977, and in Count Eight which specified 4 kilos on September 27, 1977. The appellant Romandi was accused with Clark and three other defendants in Count Eight. Either Laws or Abruzzo was present on both trips; both traveled on the trip of July 1977.
Both Abruzzo and Laws were personally engaged with Charles Praetorius in the planning of the trips, the purchase of heroin in Bangkok and the packing of the substance for the return journeys to the United States. The general pattern and method of operation were substantially similar as to each offense charged in the original indictment, although the persons involved as couriers changed from one expedition to another.
In addition to the testimony of Abruzzo and Laws, the Government's evidence included corroborating testimony of Audrey Plunkett concerning the first trip of September 1977, and Kenneth Pollitt 4 as to the second September and December trips in 1977. Testimony of Jacob Hunt was also received in the first trial of his continuing purchase of heroin from Charles Praetorius from November 1976 through June 1977.
Evidence, by way of airline tickets, passport entries, customs declarations and hotel registrations, was received to document the travels of all defendants and the various co-conspirators between the United States and Bangkok during the time of the conspiracy. In addition, small quantities of heroin, traced to Charles Praetorius and sold by Hunt and Pollitt to undercover agents, were received in evidence.
The case was submitted to the jury on October 19, 1978. The jury's deliberation continued until October 31, when the jury was discharged after reporting they were deadlocked. Before the jury reached that impasse, however, Louis Juan, Charles and Diane Praetorius were found guilty of the conspiracy charge in Count Two. The appellants Clark and Romandi and Doris Jackson were acquitted of this count. Charles Praetorius was also convicted of distributing heroin in June 1977, as charged in Count Five. He was acquitted of the continuing criminal enterprise offense asserted in Count One, the charge of violation of 21 U.S.C. § 848. The jury failed to reach a verdict as to any of the defendants on any of the remaining counts.
Before the commencement of the second trial on Counts Six and Eight, Clark and Romandi moved for judgment of acquittal and, in the alternative, for severance. The motions for acquittal were denied. The motions for severance were granted; the case proceeded to the trial of Clark and Romandi
on the substantive offenses, separate from the co-defendants charged in Counts Six and Eight.
As in the first trial, the Government's case again centered primarily on the testimony of the cooperating accomplices, Ralph Abruzzo and Glenston Page Laws. The testimony of these witnesses figured prominently in the second trial, but their evidence was, for the most part, confined to the July 2 and September 27, 1977 flights to Bangkok. According to Abruzzo, the chain of events which led to the charge, accusing Clark of participation in the July 1977 journey, began when he and Charles Praetorius met during June to plan the trip. Praetorius informed Abruzzo that he had made arrangements with Clark and Louis Juan to accompany them (Abruzzo and Praetorius) to Bangkok. Clark "was going for Charlie;" Juan "was going for me." According to the scheme, each courier would be paid $25,000 for separately carrying one-half kilogram of heroin.
Abruzzo obtained an airline employee pass. He later met with Praetorius, Clark and Juan at Kennedy Airport on July 6, 1978. 5 They were joined by Laws and informed by Praetorius that Laws would accompany them to Bangkok. All five departed on the same aircraft and arrived sometime between two and three o'clock in the morning of July 8, 1978, Bangkok time. All the members of the group proceeded to register at the Sheraton Bangkok Hotel.
Abruzzo went on to narrate that he and Praetorius occupied the same room in the Sheraton Bangkok. From this base Praetorius contacted Nui, his previously established source in Thailand, and later met him at an agreed upon time and place. At that location Abruzzo and Praetorius ordered two kilograms of heroin for the agreed price of $16,000 and paid $10,000 in advance. A few hours later Nui called Praetorius to arrange for delivery at a jewelry store near the Sheraton. In keeping with Nui's instruction, Praetorius and Abruzzo accepted delivery of the first kilo at the appointed place during the late afternoon of July 8.
Delivery of the second kilo was not accomplished until two days later. In the interval arrangements were made for the appellant Clark to obtain a suit, tailored to one and one-half inches larger than his normal measurement at the waist to accommodate the packing of a plastic belted container of heroin around the courier's midsection. Praetorius received the second kilo. On weighing the substance, it was discovered that the total amount of heroin was eight or nine ounces short of the two kilograms for which they had bargained. Praetorius then called Juan and Clark to his room and...
To continue reading
Request your trial
-
US v. Gambino
..."This burden is particularly onerous where the acquittal in the first trial involves the crime of conspiracy." United States v. Clark, 613 F.2d 391, 400 (2d Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980); United States v. Nenadich, 689 F.Supp. 285, 292 (S.D.N.Y.1988).......
-
U.S. v. Ruggiero
...v. Pacelli, 521 F.2d 135, 137 (2d Cir.1975), cert. denied, 424 U.S. 911, 96 S.Ct. 1106, 47 L.Ed.2d 314 (1976); United States v. Clark, 613 F.2d 391, 407 (2d Cir.1979), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 8. Ruggiero's claim that he was denied his speedy trial rights unde......
-
U.S. v. Nersesian
...or evidence or the guilt of the defendant." ABA Standards for Criminal Justice 3-5.8(b) (2d ed. 1980); see also United States v. Clark, 613 F.2d 391, 405 (2d Cir.1979), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980); Suarez, 588 F.2d at 354. While we recognize that "[o]ccasi......
-
Butler v. State
...severely circumscribes the availability of collateral estoppel in criminal prosecutions." (emphasis in original)); United States v. Clark, 613 F.2d 391, 400 (2d Cir.1979) (declaring that the defendant carries a heavy burden of proof), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 ......
-
Table of cases
...F.3d 978 (9th Cir. 2003), §9:14 United States v. ChevronTexaco Corp., 241 F.Supp.2d 1065 (N.D. Cal. 2002), §4:20 United States v. Clark, 613 F.2d 391 (2nd Cir. 1979), §13:01 United States v. Cohen , 2019 WL 3226988 (S.D.N.Y. 2019), §10:02 United States v. Cooper , 85 F.Supp.2d 1 (D.D.C. 200......
-
Other objections: vagueness, ambiguity, repetition, lack of foundation, multiple questions, and continuing objections
...or impossible to respond to) or ambiguous (that is, capable of interpretation in more than one way). See United States v. Clark , 613 F.2d 391, 406-07 (2d Cir. 1979) (upholding exclusion of a trial question that didn’t “make any sense,” where counsel was unable to clarify the question); Oti......
-
Vagueness, Ambiguity, Repetition, and Lack of Foundation
...or impossible to respond to) or ambiguous (that is, capable of interpretation in more than one way). See United States v. Clark , 613 F.2d 391, 406-07 (2nd Cir. 1979) (upholding exclusion of a trial question that didn’t “make any sense,” where counsel was unable to clarify the question). Ge......