U.S. v. Dago

• Decision Date: 29 November 1993
• Parties: NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of
• Court: U.S. Court of Appeals — Tenth Circuit

Page 63

33 F.3d 63

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

UNITED STATES of America, Plaintiff-Appellee, v. George Erman DAGO, also known as Robert Duran, also known as

Paul Vigil, also known as George Battaglia,

Defendant-Appellant.

No. 93-1042.

United States Court of Appeals, Tenth Circuit.

July 26, 1994.

ORDER AND JUDGMENT ¹

Before LOGAN and MOORE, Circuit Judges, and O'CONNOR, District Judge. ²

In an eighty-one count indictment, later reduced on the government's motion, the government brought drug trafficking charges against defendant George Dago and multiple codefendants. While most of his codefendants pled guilty, Mr. Dago went to trial and was convicted on all counts. The district court sentenced him to serve 360 months. Defendant appeals both his conviction and his sentence. Of the numerous issues raised for our review, two require reversal.

The parties are aware of the facts of this case; therefore, given the nature of our disposition, we need not repeat them here. Instead, we shall summarily treat the arguments simply to disclose the rationale for our conclusions.

The first issue requiring reversal is the matter of the drug conspiracy convictions. That those counts have been held to be lesser included offenses within the Continuing Criminal Enterprise (CCE) conviction is undisputed by the government. Accordingly, upon remand, the district court shall vacate the conspiracy convictions upon the specific conditions contained in United States v. Staggs, 881 F.2d 1546, 1548 (10th Cir.1989), cert. denied, 493 U.S. 1020 (1990).

Next, the money laundering conspiracy conviction cannot stand because the indictment failed to allege an overt act. Unlike an indictment for a drug conspiracy defined in 21 U.S.C. 846, an indictment charging a conspiracy under 18 U.S.C. 371 must state an overt act. However, the government argues the insufficiency of the present indictment is cured because the necessary overt acts were alleged in other counts. We cannot accept this argument.

The money laundering conspiracy, count 34, does not specifically incorporate the substantive counts as overt acts. Had that been the case, we would have a basis for accepting the government's argument. See United States v. Werme, 939 F.2d 108, 111 (3d Cir.1991), cert. denied, 112 S.Ct. 1165 (1992). The conviction on count 34 must be vacated.

We see no error arising from the remaining issues. We shall, however, address them briefly for the benefit of the parties.

There is no merit in defendant's argument concerning the validity of the wiretap request. It is obvious that an error was made in the assembly of the appropriate papers to present to the district judge for authorization, and it is equally obvious the judge ignored the oversight in granting authority to conduct the tap. However, an assistant attorney general who was authorized to approve the application for a wiretap did so. The application was not insufficient on its face, nor did the government lack actual authority to request the order. Therefore, the court acted properly in authorizing the wiretap. See United States v. Giordano, 416 U.S. 505, 527 (1974) (A court must suppress for "failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the use of this extraordinary investigative device."); United States v. Chavez, 416 U.S. 562, 568-69 (1974). ³

The defendant also challenges the district court's finding that the necessary information could not have been obtained through less intrusive means. Review is limited to the question of whether the issuing court could reasonably have concluded normal investigatory procedures appeared "unlikely to succeed." United States v. Ashley, 876 F.2d 1069, 1074 (1st Cir.1989).

The government's affidavit set out that other investigative methods had been used and the wiretap was needed to fully discover the conspiracy and its members. Defendant argues the information gleaned from pen registers should have sufficed because the government already knew the identities of most of the conspirators. In addition, he maintains he was not difficult to surveil and that surveillance had already revealed where he would go prior to a drug transaction.

However, Mr. Dago concedes he would not permit agents to meet with him, but he offers there was evidence he was becoming more secure and would one day allow direct contact. Further, he asserts because he was eager to cooperate at the time of his arrest, it was likely, had he been arrested prior to the institution of the wiretap, he would have provided officials with the needed information. Under these circumstances, defendant maintains a wiretap was unnecessary because the critical information could have been obtained through less intrusive means.

In the government's affidavit, it noted Mr. Dago always dealt with intermediaries and would not meet with government agents. The government made a good faith effort in attempting other investigatory methods before resorting to the wiretap. Because the government need not exhaust all of its investigative methods, the claim of necessity was adequate. United States v. Apodaca, 820 F.2d 348, 350 (10th Cir.), cert. denied, 484 U.S. 903 (1987).

Defendant raises three issues concerning his conviction under the CCE statute. He first argues that his conviction should be reversed for insufficient evidence. Second, he maintains the government constructively amended the indictment by introducing evidence concerning uncharged members of the drug conspiracy. Third, defendant asserts the court erred in failing to specifically instruct the jury it must unanimously choose the five subordinates defendant supervised.

To convict under the CCE statute, the jury had to find Mr. Dago organized, supervised, or managed a criminal organization of five or more participants. 21 U.S.C. 848(c)(2)(A). We have said, "the operative concepts used in section 848 ... are not technical and we see no reason to give them other than their everyday meanings.' " United States v. Dickey, 736 F.2d 571, 587 (10th Cir.1984) (citation omitted), cert. denied, 469 U.S. 1188 (1985).

During the government's closing argument, the prosecutor listed approximately twenty people whom the defendant had supervised, including his wife and his sons. In contrast, defendant argues he was not a supervisor under the CCE statute but simply a supplier with a wide distribution network. While Mr. Dago concedes he would front drugs to his buyers, set his price, and make transactional arrangements, he maintains this type of relationship does not reflect any measure of organization or control. A mere buyer-seller relationship is insufficient to prove organization, management or supervision. United States v. Patrick, 965 F.2d 1390, 1396 (6th Cir.), cert. denied, 113 S.Ct. 376 (1992).

Although the government has failed in its brief to point to those portions of the record supporting its claim of the size of the enterprise, it is still inferable Mr. Dago supervised at least five other persons. For example, the record supports the inference Mr. Molinaro was managed by defendant. Each time Officer Barnhill wanted to purchase cocaine, Mr. Molinaro would make a phone call to his supplier. Invariably, Mr. Dago would arrive at the scene. Mr. Molinaro would meet with Mr. Dago and, in turn, would supply Officer Barnhill with cocaine. From these facts, a jury could have reasoned that Mr. Molinaro was acting at Mr. Dago's direction.

Mr. Dago suggested the sales price for cocaine to John Entrup and told him how to "cut" the drug and store it in apartments rented under false names. In addition, the evidence indicates Mr. Dago controlled his wife, Karen Battaglia, and his half-brother, Mr. Suazo. Ms. Battaglia went to Kansas City at defendant's direction to deliver marijuana to Mr. Suazo. Implicit also is that Mr. Suazo, again at Mr. Dago's direction, came to Denver to pick up marijuana. Further, Mr. Dago instructed Mr. Suazo's wife to provide Ms. Battaglia with certain items. Finally, defendant employed at least two of his children to assist him in drug transactions. Numerous witnesses testified the children acted at Mr. Dago's direction. ⁴

Because Mr. Dago concedes he controlled his wife and children, the jury need only have found two additional individuals to have been supervised by defendant to convict under the statute. Our review of the record satisfies us the government established defendant maintained supervisory authority over more than two others, notwithstanding the introduction of contradictory evidence by the defendant. Those conflicts were for the jury to resolve as matters of credibility, and it is evident the jury met its task.

Mr. Dago next contends the government constructively amended the indictment. The Fifth Amendment requires that a defendant only be tried on charges contained in an indictment issued by a grand jury. "A variance that broadens the indictment constitutes a constructive amendment and is reversible per se." United States v. Wright, 932 F.2d 868, 874 (10th Cir.), cert. denied, 112 S.Ct. 428 (1991). In contrast, a variance that does not rise to the level of a constructive amendment obligates the court to examine the entire record to determine whether the variance affected the substantial rights of the accused or whether it constituted harmless error. Id.

In arguing that there was constructive amendment of the indictment, defendant notes the indictment does not name his two children or Shawn Mahoney....