U.S. v. Desimone

• Decision Date: 28 July 1997
• Docket Number: No. 440,D,440
• Citation: 119 F.3d 217
• Parties: UNITED STATES of America, Appellee, v. Frank DESIMONE, Sr.; Thomas Gagliardi, aka "Tommy"; Louis Esa, aka "A.J. Duhe", aka "John McQuire", aka "Louis"; Felix Nunez; Earl Reynolds, aka "Robert Reynolds", aka "Bob", aka "Boo-Boo"; Carl Rogasta, aka "Carmen Vignola", aka "Carlo"; Robert Santora, aka "Robert Amato"; Richard Sinde, aka "Richie", Defendants, Pablo Fernandez, Defendant-Appellant. ocket 96-1023.
• Court: U.S. Court of Appeals — Second Circuit

Page 217

119 F.3d 217

UNITED STATES of America, Appellee, v. Frank DESIMONE, Sr.; Thomas Gagliardi, aka "Tommy"; Louis Esa, aka "A.J. Duhe", aka "John McQuire", aka "Louis" Felix Nunez; Earl Reynolds, aka "Robert Reynolds", aka "Bob", aka "Boo-Boo"; Carl Rogasta, aka "Carmen Vignola" aka "Carlo"; Robert Santora, aka "Robert Amato"; Richard Sinde, aka "Richie", Defendants Pablo Fernandez, Defendant-Appellant.

No. 440, Docket 96-1023.

United States Court of Appeals Second Circuit.

Argued Oct. 11, 1996.

Decided July 28, 1997.

Jeremy G. Epstein, New York City (Harmeet K. Dhillon, Shearman & Sterling, New York City, of counsel), for Appellant Pablo Fernandez.

Allen D. Applbaum, Assistant United States Attorney, New York City (Mary Jo White, United States Attorney, Craig A. Stewart, Assistant United States Attorney, Southern District of New York, New York City, of counsel), for Appellee United States of America.

Before: CARDAMONE, MAHONEY, ^* Circuit Judges, and RESTANI ^**, Judge.

CARDAMONE, Circuit Judge:

Defendant Pablo Fernandez appeals from a December 22, 1995 judgment of the United States District Court for the Southern District of New York (Sprizzo, J.) convicting him of one count of conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846. Fernandez' primary challenge on appeal is that the evidence presented was insufficient to support his conviction. He uses this argument as a platform from which he mounts a variety of other challenges to his conviction and sentence; each additional argument depends to some degree on our assessment of the sufficiency of the evidence. That is, it is basically the same argument clothed in different verbal garb. Consequently, because defendant fails to establish that the evidence was deficient, each of the additional, dependent arguments must also fail.

BACKGROUND

An undercover investigation of Louis Esa, who was the alleged leader of a widespread criminal enterprise engaged in counterfeiting, credit card fraud, narcotics distribution, and other crimes, led FBI agents to arrest Ronald Besho, one of Esa's counterfeiting coconspirators. In exchange for a reduced sentence recommendation on counterfeiting charges, Besho agreed to arrange a narcotics transaction with Esa. During the ensuing investigation most of Besho's telephone conversations and many of his face-to-face encounters with the alleged coconspirators were recorded.

At the behest of FBI agents Besho called Esa in December 1991 saying that his friend, "Mike," wanted to purchase cocaine. Esa responded that a person named "Pablo" could supply it. On January 6, 1992 Besho and Esa met at Esa's brother's Manhattan apartment to discuss the proposed transaction. While they talked, Esa packaged three ounces of cocaine into gram bags for street sales, telling Besho that the cocaine had come from defendant Pablo Fernandez, and that Fernandez was expecting another "20 to 30 keys" shortly. Esa stated that defendant planned to give him ten kilograms "to move."

After the January 6 meeting, Esa relocated to Florida, but continued to speak periodically by telephone with Besho. In a conversation recorded on January 14, Esa advised Besho to call Fernandez to find out the price of the cocaine. When Besho asked what his "cut" would be, Esa said he expected to split the profits from the sale with Besho. In a telephone conversation three days later, Esa coached Besho on what to say during the negotiation with Fernandez and instructed him to "get the price, ... make our money, and ... send me my money." On the afternoon of January 20 Besho told Esa that he planned to meet Fernandez later that day, and Esa cautioned him not to bring "Mike" to the meeting for fear that Mike and Fernandez might cut Besho out of the deal.

Later that day Besho, Fernandez, and "Chino," an associate of Fernandez, met at the Columbus Restaurant on Manhattan's Upper West Side. Besho testified that Fernandez agreed to supply five kilograms of cocaine at a price of $16,500 per kilogram and that they had devised a plan for the exchange: Mike would drive the cash for the purchase to a nearby location in his car, and Chino and Fernandez would bring the cocaine in a different car. Besho and Fernandez would then meet at the restaurant, reveal the location of their respective cars, and conclude the transaction by exchanging cars.

The next day, January 21, Besho and Fernandez spoke briefly by phone. Fernandez warned Besho, in code, that he might not be able to provide cocaine at the price quoted the day before, but promised to call the next day with a definite price. Besho and Esa talked on the telephone three times that day. In the first two conversations, they discussed the deal in general terms. During the third call, Esa advised Besho that it would be safer to exchange only one kilogram of cocaine at a time, rather than delivering the cash for all five kilograms at once.

In a series of telephone conversations on the evening of January 21 and the morning of January 22, Fernandez confirmed that he would have to charge $17,000 per kilogram, rather than the $16,500 promised on January 20. Besho initially rejected the higher price, but later told Fernandez that "Mike" still wanted to go ahead with the deal. On January 22 Besho met again with Fernandez and Chino at the Columbus Restaurant to consummate the sale. After Besho assured Fernandez that he had the money nearby, Fernandez sent Chino to get the cocaine. About 20 minutes later, Fernandez told Besho that Chino was nervous about bringing the cocaine to the Upper West Side, and that Besho should instead bring the cash to Washington Heights, where Chino would meet him with the cocaine. Besho called the undercover agent posing as "Mike," who directed him not to travel to Washington Heights. Thus, the planned exchange did not take place.

When Besho called Esa the next day, January 23, to explain why the deal had fallen through, Esa suggested that Besho enlist the aid of Felix Nunez. Nunez agreed, at the request of Besho and Esa, to mediate and told Besho to arrange a meeting with Fernandez at noon the following day. Fernandez and Besho met on January 24 to discuss the problem. Over the course of the following week, Besho, Fernandez, Esa and Nunez continued to discuss the deal, although no money or narcotics ever changed hands. In a telephone conversation on January 27, Esa told Besho that Fernandez and Nunez suspected that Besho was an informant. Later that day, Nunez called Besho and then put Fernandez on the line to talk to Besho about the proposed sale.

On January 29 Besho had a three-way conversation with Fernandez and Esa. They discussed Fernandez' fear that Besho was a cop or an informant, and Fernandez again urged Besho to complete the five-kilogram sale in Washington Heights. Esa urged Besho to agree to Fernandez' plan. In the end, however, the transaction was never consummated because Besho adamantly refused to travel to Washington Heights and Fernandez just as adamantly refused to make the exchange anywhere else.

Fernandez, Nunez, Esa and others were eventually charged in a multi-count indictment alleging multiple acts of narcotics conspiracy and trafficking, robbery, credit card fraud, counterfeiting, and forgery. On February 15, 1994 Judge Sprizzo granted Fernandez' motion to sever Count 19, the only count in which appellant was named. Following a three-day jury trial, Fernandez and Nunez were convicted of conspiring to violate federal narcotics laws, in violation of 21 U.S.C. § 846. Fernandez was later sentenced to 121 months imprisonment, to be followed by five years supervised release and a mandatory $50 special assessment. From this conviction, Fernandez appeals. We affirm.

DISCUSSION

I Conspiracy

A. Standards of Proof for Conspiracy

Appellant argues first that the evidence presented at trial was insufficient to show either that a conspiracy existed or that he intended to sell narcotics to Besho. A defendant seeking to overturn a conviction on the grounds that the evidence was insufficient bears a heavy burden. United States v. Russo, 74 F.3d 1383, 1395 (2d Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 293, 136 L.Ed.2d 213 (1996); United States v. Wallace, 59 F.3d 333, 338 (2d Cir.1995). A conviction challenged on sufficiency grounds will be affirmed if, viewing all the evidence in the light most favorable to the prosecution, a reviewing court finds that "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Pitre, 960 F.2d 1112, 1120 (2d Cir.1992). A reviewing court must view the evidence as a whole, see United States v. Casamento, 887 F.2d 1141, 1156 (2d Cir.1989), and give deference to the jury's resolution of the credibility of witnesses where there is conflicting testimony. See United States v. Pelaes, 790 F.2d 254, 259 (2d Cir.1986). Further, the government's proof need not exclude "every possible hypothesis of innocence." United States v. Friedman, 998 F.2d 53, 59 (2d Cir.1993) (internal quotations omitted).

In order to prove a conspiracy, the government must show that two or more persons agreed to participate in a joint venture intended to commit an unlawful act. See United States v. Martino, 664 F.2d 860, 876 (2d Cir.1981). Because a conspiracy requires the participation of at least two culpable co-conspirators, United States v. Hendrickson, 26 F.3d 321, 333 (2d Cir.1994), it follows that "[a] person who enters into such [a conspiratorial] agreement while acting as an agent of the government, either directly or as a confidential informant, lacks the criminal intent necessary to render him a bona fide co-conspirator." United States v. Vazquez, 113 F.3d 383, 387 (2d Cir.1997).

The existence of--and a particular defendant's participation in--a conspiracy may be established...