U.S. v. Kelly

• Decision Date: 17 January 1990
• Docket Number: No. 88-1638,88-1638
• Citation: 892 F.2d 255
• Parties: 29 Fed. R. Evid. Serv. 856 UNITED STATES of America, Appellee, v. Joseph KELLY, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 255

892 F.2d 255

29 Fed. R. Evid. Serv. 856

UNITED STATES of America, Appellee, v. Joseph KELLY, Appellant.

No. 88-1638.

United States Court of Appeals, Third Circuit.

Argued Sept. 5, 1989.

Decided Dec. 19, 1989.

Rehearing and Rehearing In Banc Denied Jan. 17, 1990.

Albert John Snite, Jr. (argued), Philadelphia, Pa., for appellant.

Michael M. Baylson, U.S. Atty., E.D. Pennsylvania, Joel M. Friedman, Atty. in Charge, Philadelphia Strike Force, Michael L. Levy (argued), Barry Gross, Sp. Attys., Philadelphia, Pa., for appellee.

Before MANSMANN, NYGAARD and ALDISERT, Circuit Judges.

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Joseph Kelly appeals from a judgment of sentence following his conviction on charges stemming from a scheme to import phenyl-2-propanone (P2P), a chemical used to manufacture methamphetamine, into the United States. He was convicted of one count of conspiracy to possess and manufacture methamphetamine, four counts of importation of P2P, and one count of attempted importation of P2P. Kelly claims that he was unfairly prejudiced by a variance between the singular conspiracy charged in the indictment and evidence at trial which demonstrated multiple conspiracies. He also claims his Sixth Amendment right of confrontation was violated when the district court admitted videotaped depositions into evidence which were taken without his presence in Belgium. For the reasons that follow, we reject these arguments and will affirm the judgment of the district court.

I.

Kelly and twenty-seven other individuals were charged with a wide-ranging conspiracy to import and distribute P2P and to manufacture and distribute methamphetamine during the period from July, 1983 to June, 1987. Broken down to its bare essentials, the conspiracy count alleged that Kelly was part of a group led by Steven Vento, Sr., and Angelo DiTullio which imported P2P into the United States from Europe. The DiTullio/Vento organization then sold the P2P to a group led by John A. Renzulli which was responsible for the manufacture and distribution of methamphetamine. In June, 1985, the entire operation was brought under the control of the Philadelphia-based organized crime syndicate known as La Cosa Nostra (LCN). The district court severed the case into three trials whereby the respective members of the DiTullio/Vento organization, the Renzulli organization, and the LCN were tried separately.

The import operation began in 1984, when Vento purchased P2P in Germany. Vento imported one shipment to the United States before he was convicted on drug charges. In early 1985, Vento met with DiTullio at the Philadelphia Detention Center. Vento informed DiTullio that he had ordered several barrels of P2P in Europe and that he, being incarcerated, needed DiTullio's help to bring the P2P into the United States. Vento made DiTullio his partner in the import business, and suggested that the P2P could be shipped in air compressors from overseas. DiTullio was to send people overseas to ship the P2P to the United States.

Kelly worked under the direction of DiTullio shipping the P2P from Europe to the United States from June, 1985 until they had a falling out sometime in 1986. Kelly transported one shipment of P2P in June, 1985, by storing the chemical in an air compressor and having it shipped from Hamburg, West Germany, to Philadelphia. In August, 1985, Vento and DiTullio made arrangements to import another thirty gallons of P2P from Europe. DiTullio told Vento that the P2P would be concealed in barbecue grills. Vento placed the order and in September, 1985 shipped thirty gallons in the gas containers of the barbecue grills. That same month, Vento ordered another one hundred and fifty gallons of P2P from a pharmaceutical company in Belgium. Kelly picked up the P2P in November, 1985 and delivered it to a rented warehouse in Brussels. In February, 1986, Edmund Gifford joined the P2P smuggling ring. In March, 1986, Kelly and Gifford shipped fifty gallons of P2P in barbecue grills from Brussels to Philadelphia.

While Kelly was operating in Europe in 1985 and 1986 the Philadelphia LCN gained control over DiTullio's smuggling ring. Two LCN operatives, Nicholas Caramandi and Thomas DelGiorno, testified that in 1984 and 1985 the LCN became aware of DiTullio's criminal enterprise. The LCN approached DiTullio and told him that he had to pay a "street tax" of $2,000 to the LCN for every gallon of P2P brought into the United States. DiTullio was told that if he continued to import P2P without paying the LCN, he would be killed. Not surprisingly, DiTullio began to pay.

The only challenge to the LCN's control of the operation occurred in 1986, when Vento, now incarcerated at Lewisburg Federal Penitentiary, discovered that DiTullio was paying a street tax to the LCN. Vento's son, Steven Vento, Jr., declared that he was not going to pay. In May, 1986, DelGiorno received approval from LCN "boss" Nicodemo Scarfo to kill Vento, Jr. On May 27, 1986, Vento, Jr. was shot by members of the LCN. They failed to kill Vento, Jr., but following the attempt, Vento, Sr. was obviously out of the operation.

Sometime in 1986, Kelly double crossed DiTullio, and thereafter dealt directly with the LCN. Caramandi testified that DiTullio told him Kelly and an LCN member named Ralph Staino had stolen several gallons of P2P from DiTullio in Europe. This theft followed an argument between Kelly and DiTullio in which Kelly said he was quitting. When confronted by Caramandi, Staino admitted the theft. When the news of the missing P2P was reported to DelGiorno in June, 1986, DelGiorno made arrangements to have Kelly and Staino ship the stolen P2P to the United States without DiTullio. Now, both Vento and DiTullio had been cut out of this smuggling racket.

After they imported and transferred the stolen P2P, DelGiorno, Caramandi and Staino decided to work with Kelly to bring more P2P into the United States. Kelly and Edmund Gifford went back to Europe in the fall of 1986 to purchase more P2P. The evidence obtained from European witnesses by virtue of videotaped depositions established that Kelly and Gifford purchased additional quantities of P2P in Belgium. DelGiorno and Caramandi did not know if the new shipment ever arrived in the United States since they began cooperating with the government in November, 1986.

Kelly, together with DiTullio, Gifford and Romolini, was tried before a jury in April, 1988. ¹ The jury returned guilty verdicts against Kelly on the conspiracy count and on four importation counts and one count of attempted importation. On August 9, 1988, Kelly was sentenced to five years imprisonment on the conspiracy count and received concurrent sentences on the importation counts. This timely appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291.

II.

The government's theory at trial was that a classic chain conspiracy was created, where a product is first transported, then refined, and then distributed to the ultimate user. Kelly argues that he was unfairly prejudiced by a variance between the single conspiracy charged in the indictment and evidence at trial, which he claims proved several conspiracies.

Kelly claims that the LCN was not a partner in a conspiracy, but rather is an omnipresence of the criminal culture, which muscled its way into this drug business through threats and extortion. Conversely, he contends that whatever chain existed vanished in 1986 when he broke with DiTullio and worked directly with the LCN importing P2P. He further argues that he was unfairly prejudiced since the government used evidence of crimes committed by others in order to prove a single conspiracy.

A.

A conviction must be vacated when (1) there is a variance between the indictment and the proof presented at trial and (2) the variance prejudices a substantial right of the defendant. United States v. Schurr, 775 F.2d 549, 553 (3d Cir.1985). This rule is designed to protect the right of the defendant "not to be tried en masse for the conglomeration of distinct and separate offenses committed by others." Kotteakos v. United States, 328 U.S. 750, 775, 66 S.Ct. 1239, 1252, 90 L.Ed. 1557 (1946). Where a single conspiracy is alleged in the indictment, there is a variance if the evidence at trial proves only the existence of multiple conspiracies. United States v. Smith, 789 F.2d 196, 200 (3d Cir.), cert. denied, 479 U.S. 1017, 107 S.Ct. 668, 93 L.Ed.2d 720 (1986). Here, the district court properly instructed the jury that it could convict only if the government proved the single conspiracy charged in the indictment and not some other separate conspiracy. Nonetheless, even "a finding of a master conspiracy with sub-schemes does not constitute a finding of multiple, unrelated conspiracies and, therefore, would not create an impermissible variance." Smith, 789 F.2d at 200.

The question is whether there was sufficient evidence from which the jury could have concluded that the government proved the single conspiracy alleged in the indictment. United States v. Theodoropoulos, 866 F.2d 587, 593 (3d Cir.1989). We review to determine whether the record, when viewed in the light most favorable to the government, contains substantial evidence to support the jury's verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Furst, 886 F.2d 558, 565-66 (3d Cir.1989).

B.

The essence of a conspiracy is an agreement. United States v. Nolan, 718 F.2d 589, 595 (3d Cir.1983). The government need only prove that the defendant agreed with at least one of the persons named in the indictment that they or one of them would perform an unlawful act. Failing to prove that all named co-conspirators conspired with the defendant is not fatal to the government's case. Id. Here, the government proved, and Kelly does not seriously dispute, that he was part of a conspiracy to import P2P to the United States as part of the DiTullio/Vento...