U.S. v. DiTommaso
| Decision Date | 20 April 1987 |
| Docket Number | D,Nos. 612-615,s. 612-615 |
| Parties | 22 Fed. R. Evid. Serv. 1595 UNITED STATES of America, Plaintiff-Appellee, v. Francis DITOMMASO a/k/a "Checco", Rudolfo Risatti, a/k/a "Rudy", Sheila Silvetti, Victoriano Molina-Chacon, Defendants-Appellants. ockets 86-1371 to 86-1373 and 86-1377. |
| Court | U.S. Court of Appeals — Second Circuit |
Bennett L. Gershman, White Plains, N.Y. for defendant-appellant, Francis DiTommasso.
Kenneth Weinstein, Garden City, N.Y. (Laurie S. Hershey, of counsel), for defendant-appellant, Rudolfo Risatti.
Alan Scribner, Contoocook, N.H., for defendant-appellant, Sheila Silvetti.
Barry E. Schulman, Brooklyn, N.Y. (Schulman & Laifer, Michael A. O'Connor, and Doreen T. O'Connor, of counsel), for defendant-appellant, Victoriano Molina-Chacon.
George B. Daniels, Asst. U.S. Atty. for E.D.N.Y. (Andrew J. Maloney, U.S. Atty., David V. Kirby, Peter Ball, Asst. U.S. Attys., Brooklyn, N.Y., of counsel), for plaintiff-appellee, the U.S.
Before OAKES, CARDAMONE and DAVIS, * Circuit Judges.
BACKGROUND 1
In late 1981, Antonio Turano, a United States resident, Gaetano Giuffrida, a resident of Italy, and Victoriano Molina-Chacon, a resident of Spain, formed a partnership, ostensibly for the purpose of operating a multinational shoe business. The trio employed Rudolfo Risatti as chief shoe salesman with responsibility for the collection of accounts receivable. From the outset, the joint enterprise suffered from serious financial difficulties and Risatti's claimed adjusted gross income from shoe sales in 1982 was approximately $2000. Although the sale of footwear failed to generate profits for the partnership, the shoe business served as a front for a far more lucrative collaboration: a multi-million dollar heroin importation and distribution ring.
Street sales of heroin netted immense cash profits, typically in dirty and used paper bills of small denominations. In order to transport their gain out of the country undetected, the group instituted a two-step operation. First, by various means, the small denominations were converted to larger denominations (usually $100 bills) so that the money could be more easily concealed when transported. Second, the freshly laundered drug profits were then quietly smuggled out of the country and deposited into foreign bank accounts. Throughout 1982 and the first part of 1983, Sheila Silvetti and Francis DiTommaso assumed active roles in the illegal laundering and international smuggling of the illicit drug profits. 2
During the Spring of 1982, Molina-Chacon started his own shoe outlet named Mintor Shoes. Although by this time Risatti had left the employ of Guiffrida and Turano, he continued in his capacity as salesman for Mintor Shoes. In October of that year, federal officials in New York intercepted a shipment of 15 kilograms of heroin from Thailand. This led to the arrest of both Guiffrida and Turano. Ultimately, the charges against Guiffrida were dropped and he returned to Italy. Turano was less fortunate. Following his release on bail 3 but prior to facing trial, Turano was killed.
Upon Guiffrida's return to Italy, Italian authorities installed wiretaps on his home and office phones. From early November 1982 through January 1983, authorities intercepted numerous conversations between Guiffrida and Molina-Chacon. Their discussions touched upon a wide variety of business matters ranging from details of particular money-laundering schemes to potential problems created by Turano's arrest. During one conversation, Molina-Chacon emphasized that whenever he was in Spain he relied upon Rudolfo Risatti in New York to keep him informed about the progress of the money laundering activities. Another discussion focussed on Anthony Castelbuono, Sheila Silvetti's paramour and a principal player in the various money laundering and smuggling operations. Because Castelbuono had squandered more than $1,000,000 in drug profits while gambling during a laundering trip to Atlantic City, Molina-Chacon and Guiffrida contemplated whether Castelbuono should be killed.
In January 1983 Molina-Chacon and Guiffrida discussed a shipment of shoes which was being prepared to be sent from Italy to Mintor Shoes, the New York outlet owned by Molina-Chacon. Later that month, Molina-Chacon personally travelled to Florence, Italy, to inspect the shipment. Just before the cargo was scheduled to leave Italy, he returned to the United States. The next day, Italian authorities seized the 160 carton shoe shipment and made several arrests. A thorough search of the goods disclosed a half-kilogram of pure heroin stashed in the middle shoe box in each of the 160 cartons. The total haul, 80 kilograms of pure heroin, was estimated as having a street value in New York of more than $131,000,000. When news of the seizure and arrests reached Molina-Chacon in New York, he fled to Spain with his family, leaving Risatti in charge of the shoe business.
During 1984, in an effort to infiltrate the drug ring, undercover federal Drug Enforcement Administration (DEA) agents, posing as drug dealers interested in obtaining large quantities of heroin, contacted Melania Lopez, the New York-based girlfriend of Molina-Chacon. Lopez eventually agreed to introduce the agents to Molina-Chacon. The agents travelled to Spain, met with Molina-Chacon and discussed the possibility of obtaining large amounts of heroin. In addition, they discussed helping Molina-Chacon to smuggle $20,000,000 in drug profits he claimed to have left behind in the United States. Molina-Chacon told the agents that his connections were Sicilian-based and that there were stockpiles of heroin and a heroin laboratory in the hills of Sicily. He boasted that, at the height of their operation, the organization was importing eighty kilos of pure heroin every fifteen days. Although he acknowledged that shipments ceased temporarily following the Italian drug bust, Molina-Chacon claimed that was the only eighty kilo shipment they had ever lost.
For several months, DEA agents recorded their conversations with Molina-Chacon. At one point, Molina-Chacon attempted to solicit the agents' help to collect the $1,000,000 debt Castelbuono owed the drug organization. Various options were considered, including killing both Castelbuono and Silvetti or simply injuring Castelbuono to persuade him to repay the amount.
In March 1985, undercover agents lured Molina-Chacon to Bermuda under the pretext of arranging a meeting with a "banker" who could launder the $20,000,000 cash Molina-Chacon claimed was still in the United States. During a tape-recorded conversation, Molina-Chacon and the DEA agents discussed future drug deals and the smuggling of drug profits from the United States. At the end of the conversation, agents arrested Molina-Chacon. He later waived extradition to the United States to stand trial. Subsequently, Francis DiTommaso, Rudolfo Risatti and Sheila Silvetti were arrested and indicted on various charges stemming from their participation in the drug smuggling and money laundering operations.
The four appellants, Molina-Chacon, Risatti, Silvetti and DiTommaso were tried together before a jury, and convicted. 4 We consider their appeals seriatim.
Following the jury trial, Victoriano Molina-Chacon was convicted of conspiracy to import heroin (in violation of 21 U.S.C. Sec. 952(a) (1970) (amended 1984)) and conspiracy to violate the federal currency reporting requirements (31 U.S.C. Secs. 5313 and 5322(b) (1982)). Urging this court to overturn his convictions, Molina-Chacon asserts the following claims of error:
1. Molina-Chacon was denied his right to a speedy trial and therefore the indictment must be dismissed.
2. The court's erroneous "conscious avoidance" charge permitted the jury to convict Molina-Chacon without proof of the requisite conspiracy elements of knowledge and intent. 5
3. Evidence of other uncharged conspiracies prejudiced Molina-Chacon, denying him a fair trial.
4. The court erred in forcing Molina-Chacon to be tried on charges other than those contemplated in the extradition proceedings.
5. The use of impermissibly suggestive identification procedures denied Molina-Chacon a fair trial.
6. The sentence imposed upon Molina-Chacon was illegal and suggestive.
For the reasons given infra, we hold these contentions unpersuasive and affirm Molina-Chacon's convictions.
Molina-Chacon, detained without bail since his arrest on March 3, 1985, was indicted on March 20, 1985. On October 7, 1985, he moved for dismissal of his indictment under the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq. (1982 ed. and Supp. II). By order dated December 3, 1985, the District Court denied Molina-Chacon's motion and granted a Government motion for an adjournment of the trial date. United States v. Molina-Chacon, 625 F.Supp. 338, 343 (E.D.N.Y.1985). Trial commenced on February 10, 1986.
The Speedy Trial Act, as amended in 1979 and 1984, requires that a defendant be tried within 70 days of the later of either the filing of an indictment or information, or the first appearance before a judge or magistrate. 18 U.S.C. Sec. 3161(c)(1); Henderson v. United States, --- U.S. ----, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986). However, in computing the running of this 70-day period, the Act permits certain periods of time to be excluded. The District Court's opinion sets forth four independent grounds for excluding time from Molina-Chacon's speedy trial calculation. 6 Although a subsequent Supreme Court decision, Henderson v. United States, --- U.S. ----, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986), reveals that the District Court erred in its calculations, the error was harmless. Guided by Henderson, our own speedy trial calculation follows.
Molina-Chacon first appeared before a magistrate on March 12, 1985. Therefore, in normal circumstances, his later indictment on March...
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