U.S. v. Giunta

• Citation: 925 F.2d 758
• Decision Date: 15 February 1991
• Docket Number: No. 89-5245,89-5245
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Giuliano GIUNTA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 758

925 F.2d 758

UNITED STATES of America, Plaintiff-Appellee, v. Giuliano GIUNTA, Defendant-Appellant.

No. 89-5245.

United States Court of Appeals Fourth Circuit.

Argued July 19, 1990.

Decided Feb. 15, 1991.

Georg Nicholas Herman, Coleman, Bernholz, Bernholz, Gledhill & Hargrave, Chapel Hill, N.C. (argued), Adrian Halpern, Coleman, Bernholz, Bernholz, Gledhill & Hargrave, Chapel Hill, N.C., on brief, for defendant-appellant.

Robert Holt Edmunds, Jr., U.S. Atty., Greensboro, N.C., for plaintiff-appellee.

Before ERVIN, Chief Judge, and PHILLIPS and MURNAGHAN, Circuit Judges.

PHILLIPS, Circuit Judge:

Giuliano Giunta appeals his convictions of conspiracy to import into and to distribute within the United States more than one kilogram of heroin in violation of 21 U.S.C. Secs. 963, 846, and 841(b)(1)(A). We conclude that the evidence was insufficient to convict him of conspiracy on either count and reverse his convictions.

I

Sometime in early 1987, Giunta became a target of an elaborate government sting operation designed to infiltrate organizations importing Sicilian white heroin into the United States and bring members of the organizations to justice. Effective undercover work by government agents and their informers succeeded in identifying and convicting some of the operation's targets for substantive trafficking offenses. The efforts specifically directed at Giunta, however, failed to produce any substantive trafficking offense, leaving only the possibility of prosecuting him for conspiracy to commit those offenses.

The portion of the sting operation, titled Crimson Sky, in which Giunta became involved was centered on Greensboro, North Carolina. Its principal operators were Gregory Calles, an undercover agent, and a local businessman, one Henry ("Duffy") Mazzeo, who recently had been hired by the FBI to work with Calles, apparently because of his already existing social connections with a circle of suspects who had business interests in Greensboro and were either residents or occasional visitors there. The sting operation's cover story was that Calles was an Hispanic who represented a Miami cocaine cartel that was interested in getting into the heroin trade, and Mazzeo was his middleman, seeking out heroin suppliers. Mazzeo's principal role was to find suppliers and introduce them to Calles who would then conduct negotiations.

At the times in issue, Giunta was an Italian citizen in his mid-forties who was employed by a bank in Pozzallo, Sicily. During the early 1980's he started a restaurant business, the Cafe Royal, in Greensboro, in partnership with one Giovanni Carandola. In connection with this venture, he made occasional trips to Greensboro, where he moved in a circle that included several eventual targets of the sting operation. He apparently first met Mazzeo in 1985 at the Cafe Royal on a purely social occasion during which drugs were not discussed and at a time before Mazzeo had been employed by the FBI. His next encounter with Mazzeo occurred by chance in June of 1986 in a cafe lounge in his hometown of Pozzallo, Sicily, where Mazzeo, who by then had been hired by the FBI, was visiting "on a holiday" with several targets of the investigation including Carandola and one Salvatore D'Angelo. On this occasion, Mazzeo reintroduced himself to Giunta and they chatted socially, again without any mention of drugs.

The first time drug trafficking was mentioned between Giunta and either of the Crimson Sky investigators was on a trip to New York in January of 1987. Giunta flew there from Greensboro en route to Rome with two friends. On the same flight were Mazzeo and D'Angelo. Unbeknownst to Giunta, Mazzeo and D'Angelo were going to New York to complete a sale of heroin to agent Calles. When the five became stranded in New York by bad weather, they wound up sharing a hotel suite overnight. During the forced layover, the drug transaction between Mazzeo and Calles and D'Angelo was completed out of Giunta's presence, but at some point during the layover Mazzeo told Giunta that he, Mazzeo, was in the drug business. According to Calles, Giunta later approached him, indicated that he knew that Calles and Mazzeo were in the drug business and that he might be able to help Calles in some way.

Soon after this episode in New York, a situation developed that enabled Mazzeo to deepen his relationship with Giunta by doing him a considerable favor. It grew out of Giunta's falling out with Carandola, his restaurant partner, and Carandola's resulting agreement to buy him out for $100,000. Unable to collect from Carandola, Giunta complicated his situation by involving another member of the Greensboro connection, one Umberto Pitino, in his financial difficulties. When Pitino directed Giunta to wire transfer funds from Pitino's account in Giunta's bank in Sicily to Greensboro for Pitino's use in buying another restaurant, Giunta took $15,000 of the requested amount for his own use, intending to repay Pitino in Greensboro out of the money owed him by Carandola. In the showdown, when Carandola did not pay Giunta, so that he could not pay Pitino Pitino reacted by taking Giunta's passport to prevent his return to Sicily, and demanded immediate payment.

In this plight, Giunta appealed to his friend Mazzeo for help at a meeting in the Greensboro airport sometime in the early spring of 1987. Mazzeo told his FBI employers of the request and it was decided that he should lend Giunta the $15,000 in order to enhance Mazzeo's credibility with Carandola and Pitino, who were principal targets of the investigation. Mazzeo made the loan in May of 1987, taking a 3-month note for its repayment. This enabled Giunta to relieve his immediate problem by paying off Pitino, though it did not resolve his situation with Carandola.

The loan was not conditioned on Giunta's helping Mazzeo find a heroin source. In fact, it was made principally to aid the investigation of Pitino, who was then a major target. But from this point on until Crimson Sky was terminated in March of 1988, Mazzeo relentlessly pressed Giunta to find a heroin source and consummate a sale in this country to Calles. Their contacts during this period were mainly by telephone calls between Mazzeo in this country and Giunta in Italy, though the two also met occasionally in both countries. More than 40 telephone calls, most initiated by Mazzeo, were recorded by the government.

The most critical contacts and events during this period can be summarized as follows. After several inconclusive conversations between Mazzeo and Giunta during the late spring of 1987, Giunta reported in June 1987 that he had made contact with a person who might have a connection with a source. Though he did not identify him at the time, it turned out to be one Pietro Fedino. Giunta told Mazzeo that he could meet this possible connection in Italy toward the end of June or sometime later in the United States.

Following up on this Mazzeo and Calles went to Europe in late June 1987, but did not make any connection. In mid-August 1987, Mazzeo and Calles went together to Italy to make contact with Giunta's claimed connection. There they met Giunta without difficulty, but though they were there for eight days, Giunta never produced anyone. At this time, Giunta did identify Fedino as the man he had hoped they would meet, and he repaid the $15,000 loan from Mazzeo. Otherwise, the agents went away empty-handed, after expressing their annoyance to Giunta.

Shortly after the agents' return to the United States, Giunta called Mazzeo and introduced him over the telephone to Fedino. Fedino discussed with Mazzeo the possibility of meeting Mazzeo in New York, and tentative plans were made. On a follow-up call by Mazzeo to Giunta, Giunta gave Mazzeo information on how to meet Fedino in New York.

Mazzeo and Calles then met Fedino in New York on September 4, 1987, according to plan. Giunta was not present. In a confusing and inconclusive discussion of some forty minutes, the participants came to no agreement. Fedino represented himself not as a supplier but as one who had connections with certain "people" who could supply. He talked vaguely about a plan under which Calles would pay money up front to be held by either Fedino or Giunta until Calles was satisfied with the quality and quantity of heroin supplied, at which time the money would be paid to the suppliers. Among other problems on which the discussions foundered was that of where delivery would be made, whether in Italy or the United States. Calles wanted delivery in the United States (was actually not permitted to bring heroin into the United States), Fedino wanted delivery in Italy. The meeting broke up with Fedino saying that he would stay in touch through Giunta who would contact Mazzeo.

Mazzeo then returned to Greensboro, from where he continued to call Giunta in Italy from time to time. One such call was on October 6, 1987, during which Giunta indicated he knew of the problem concerning the place of any delivery from Fedino's people. Mazzeo asked Giunta to find out what quantity of heroin would have to be purchased in order to get delivery in the United States. Giunta promised to try to find out and told Mazzeo how he could be contacted in the future.

Not having heard anything from Giunta, Mazzeo called him again on October 15, 1987, to inquire what he had found out. This time Giunta promised to call back with the information in three days, insisting that Mazzeo then tell him "yes or not." This conversation too was confusing and inconclusive as to any specific deal, with Giunta indicating at the outset that "for now it's no way because ... it's too difficult." Indeed, there was confusion as to who Giunta was now talking to as possible suppliers. When asked specifically about Fedino, he pointed out that he had "other connection," and later on remonstrated that "I am no connection with these people ... I just know somebody" and was acting "cause...