U.S. v. Dipalermo

• Decision Date: 21 August 1979
• Docket Number: 963,D,Nos. 962,964 and 987,s. 962
• Citation: 606 F.2d 17
• Parties: UNITED STATES of America, Appellee, v. Joseph DiPALERMO, a/k/a "Joe Beck", Salvatore Lombardi, a/k/a "Herman", George Gillette and Alan Kassebaum, Appellants. ockets 78-1408, 78-1413, 79-1032 and 79-1046.
• Court: U.S. Court of Appeals — Second Circuit

Page 17

606 F.2d 17

UNITED STATES of America, Appellee, v. Joseph DiPALERMO, a/k/a "Joe Beck", Salvatore Lombardi a/k/a "Herman", George Gillette and Alan Kassebaum, Appellants.

Nos. 962, 963, 964 and 987, Dockets 78-1408, 78-1413,

79-1032 and 79-1046.

United States Court of Appeals Second Circuit.

Argued May 2, 1979.

Decided Aug. 21, 1979.

Michael Rosen, New York City (Roy M. Cohn, Saxe, Bacon & Bolan, P. C., New York City, of counsel), for appellant DiPalermo.

Roger Bennet Adler, New York City (Gustave H. Newman, New York City, of counsel), for appellant Lombardi.

Raymond B. Grunewald, New York City, for appellant Gillette.

Harvey L. Greenberg, Brooklyn, N.Y. (Frank T. Geoly, Brooklyn, N.Y., of counsel), for appellant Kassebaum.

Richard Appleby, Asst. U.S. Atty., Eastern District of New York, Brooklyn, N.Y. (Edward R. Korman, U.S. Atty., Harvey M. Stone, Asst. U.S. Atty., Vivian Shevitz, Asst. U.S. Atty., Eastern District of New York, Brooklyn, N.Y., of counsel), for the United States of America.

Before GURFEIN and MESKILL, Circuit Judges, and WYZANSKI ^*, District Judge.

PER CURIAM:

Joseph DiPalermo, Salvatore Lombardi, George Gillette and Alan Kassebaum appeal from judgments of conviction entered in the United States District Court for the Eastern District of New York, Edward R. Neaher, Judge, after a three-week jury trial. All of the appellants were convicted of conspiring to manufacture and possess with intent to distribute methaqualone, commonly known as "quaaludes," in violation of 21 U.S.C. § 846. Kassebaum was also convicted of possession of methaqualone with intent to distribute, 21 U.S.C. § 841(a)(1). Finding no reversible error, we affirm the judgments of conviction.

Viewing the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the government showed that the following series of events took place. Beginning in April of 1977, one Vincent Marchese, a paid informant for the Drug Enforcement Administration, insinuated himself into a conspiracy to manufacture quaaludes. On April 15, Marchese met with appellant Gillette at Marchese's home in Staten Island. Gillette told Marchese that he had a friend named "Herman" who had manufactured quaaludes in the past but who needed a new supply of chemicals in order to stay in the business. "Herman" was apparently able to come up with the money, but had thus far been unable to come up with a connection leading to the necessary supplies approximately 490 pounds of various chemicals. Marchese agreed to locate the needed source and immediately called the DEA, which in turn contacted the Berg Chemical Company. Marchese then informed Gillette that he had been successful in his search, and that the price of the chemicals would be $10,000 a price to which "Herman" agreed. Marchese and Gillette picked up the chemicals on June 23, 1977, and took them to a previously secured warehouse in New Jersey. The chemicals having been purchased, the next step was to create a manufacturing laboratory a task to which "Herman" was assigned.

Much to Marchese's and Gillette's consternation, however, "Herman," who by this time had been identified by the DEA as appellant Lombardi, was unable to locate the needed facility. Almost four months elapsed before the laboratory began to take shape. In the middle of September, Ryland Luttrell, caretaker and watchman at 135 Ellis Street in Staten Island, was visited by three men, one of whom Luttrell subsequently identified as appellant DiPalermo. The visitors took a look around the premises no doubt taking note of the fact that 135 Ellis Street is in a remote area of Staten Island, that the property occupies about 13 acres of land, and that situated thereon was a rather run-down old house, as well as a dock. Luttrell observed DiPalermo get out of the car, but he was approached only by DiPalermo's two companions. These two men asked Luttrell certain questions about the condition of the dock and the depth of the water, reported back to DiPalermo, returned to ask a few more questions, again returned to the car and drove off.

Approximately a month later, Gillette was observed by the DEA at the Ellis Street location. When he left the premises, DEA agents followed him into lower Manhattan, observed him make a series of telephone calls from a public booth and, fifteen minutes after making the calls, being joined by DiPalermo. One of the agents strolled by Gillette and DiPalermo and overheard the following conversation:

DiPalermo: It is a lot of money.

Gillette: I know it is a lot of money. That's why you've got to straighten it out.

After about fifteen minutes, DiPalermo left. A week later, Gillette was again observed at the Ellis Street site. Upon leaving, he was again followed to the same street corner in lower Manhattan where he again met with DiPalermo. Again a DEA agent walked by them, this time overhearing DiPalermo saying to Gillette: "This is what you do."

Five days later, on October 31, the chemicals were moved from the New Jersey warehouse to 135 Ellis Street, the entire day's activities being monitored by the DEA. Gillette and Marchese began the day by removing the chemicals from the New Jersey warehouse and depositing them into a Ryder rental truck. Gillette then drove the truck to Lombardi's Staten Island address, with Marchese following in Gillette's car. Gillette explained to Marchese that the truck was being left there so that "Herman" could keep an eye on it. Shortly after that, DEA agents observed Lombardi driving the truck on a route leading directly to 135 Ellis Street. At a certain point in its travels, however, the truck began to vary its speeds considerably and take what are commonly referred to as "evasive maneuvers." Eventually, the truck worked its way back to Lombardi's residence. Later that night the truck was observed at 135 Ellis Street, where the chemicals were unloaded and taken into the house. Gillette later explained to Marchese that "Herman" had successfully delivered the chemicals to the soon to be operating laboratory. Gillette also explained to Marchese that the DEA surveillance had been picked up during the attempted delivery of the chemicals, that he was troubled by this development, and that he would have to talk to his "friend in New York" about the situation. His "friend in New York" turned out to be named "Joe Beck," which is apparently a name used on occasion by appellant DiPalermo.

Because none of the participants in the scheme had sufficient knowledge of chemistry to go about manufacturing marketable quaaludes, they next set about the task of recruiting someone who did. Appellant Kassebaum, a licensed New York pharmacist, apparently fit the bill. Both Luttrell and various DEA agents observed Kassebaum at the 135 Ellis Street site on a number of occasions. Upon leaving Ellis Street on one such occasion, he was followed by DEA agents who subsequently overheard him state over a telephone: "I finally got something good and nice for you. It turned color." ¹ DEA agents subsequently observed Kassebaum purchasing paraphernalia that was eventually seized at the laboratory.

On November 14 the DEA closed in, arresting Kassebaum a short distance from the Ellis Street laboratory and escorting him back to the premises so they could execute a search warrant. Kassebaum broke free, however, ran into the house and closed the door behind him. The agents, locked out of the house, determined that Kassebaum had fled to the bathroom and had begun flushing evidence down the toilet. They forced their way in and found Kassebaum shielding himself behind his German Shepherd. The agents prevailed, however, took Kassebaum into custody, and proceeded to search the laboratory. In the first floor bathroom they discovered a brown powder which turned out to be methaqualone; during their search of the rest of the house they seized more methaqualone, various pieces of laboratory equipment, and the chemicals that had been purchased by Marchese and Gillette from the Berg Chemical Company.

In our judgment, only two of the issues raised by the appellants warrant discussion, those issues focusing on Luttrell's in-court identification of DiPalermo and the nature and sufficiency of the evidence to support the conviction of Lombardi.

After all of the defendants had been arrested, the DEA interviewed Luttrell regarding his recollection of the happenings at 135 Ellis Street. He described an individual who fit the description of Gillette and, when shown a photograph of Gillette, identified him as one of the men to whom he had spoken about renting the Ellis Street facility. At that point, the DEA put together a spread of photographs, including photographs of DiPalermo, and asked Luttrell if he recognized any of the subjects. Luttrell picked out DiPalermo as someone who had been at the Ellis Street site, and he related the details of DiPalermo's visit. Luttrell subsequently identified DiPalermo during the trial as one of the individuals he had seen at the Ellis Street location.

This Court has recently explained the law as it relates to in-court identifications that have been preceded by pre-trial photographic identifications in the following fashion:

A conviction "based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." . . . "(R)eliability is the linchpin in determining the admissibility of identification testimony," . . . and the court must look to the "totality of the circumstances" to determine whether the in-court identification is reliable even if the pretrial...