U.S. v. Link, s. 88-5761
| Decision Date | 30 January 1991 |
| Docket Number | 88-6099,Nos. 88-5761,s. 88-5761 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Edwin Francis LINK, Robert Noble Casale, Louis John Ippolito, Barbara Jean Pace, Donald D'Amico, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Frank CARCAISE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Dexter W. Lehtinen, U.S. Atty., Joseph A. DeMaria, U.S. Dept. of Justice/Miami Strike Force, Joe H. Vaughn, U.S. Dept. of Justice, Miami, Fla., Frank J. Marine, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.
Arthur Joel Berger, Miami, Fla., for Pace & Casale.
John Weinberg, Miami, Fla., for Link.
Thomas M. Dawson, Leavenworth, Kan., for Ippolito.
Kent Wheeler, Miami, Fla., for D'Amico.
Thomas Almon, Almon & Brodsky, Miami, Fla., for Carcaise.
Appeals from the United States District Court for the Southern District of Florida.
Before FAY and EDMONDSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.
These consolidated appeals are taken from the conviction of the appellants in two separate trials resulting from the same indictment for violation of several of the United States narcotics laws.
On December 18, 1986, an indictment was filed in the United States District Court for the Southern District of Florida that charged 49 defendants with a total of 105 counts arising from an extensive organization involved in the importation and distribution of large quantities of cocaine, marijuana and counterfeit quaalude pills The Appellants were convicted and sentenced as follows:
that contained the controlled substance diazepam. Appellants Link, Casale, D'Amico, Ippolito and Pace were tried together in March and April of 1988. Appellants Carcaise and Claiguri were tried together in May of 1988.
Link: (1) conspiring to violate RICO; (2) two counts of possession of diazepam with intent to distribute; total sentence five years.
Casale: (1) conspiring to violate RICO; (2) importation of diazepam; (3) three counts of possession of diazepam with intent to distribute; (4) two counts of possession of cocaine with intent to distribute; (5) two counts of interstate travel to promote unlawful narcotics activity; total sentence: 13 years.
Ippolito: (1) conspiring to violate RICO; (2) three counts of possession of diazepam with intent to distribute; (3) two counts of possession of cocaine with intent to distribute; (4) three counts of interstate travel to promote unlawful narcotics activity; total sentence: 17 years imprisonment and three years special parole.
Pace: (1) conspiring to violate RICO; (2) three counts of possession of cocaine with intent to distribute; (3) possession of diazepam with intent to distribute; using a telephone to facilitate possession of cocaine with intent to distribute; total sentence: six years imprisonment and three years special parole.
D'Amico: (1) possession of diazepam with intent to distribute; (2) two counts of interstate travel to promote unlawful narcotics activity; total sentence: five years imprisonment and one year special parole.
Carcaise: (1) conspiring to violate RICO; (2) possession of diazepam with intent to distribute; total sentence 15 years imprisonment and 1 year special parole.
These appeals followed. This Court consolidated the two appeals.
In 1981 coconspirators Michael Thifault, Peter Berry, William Lynch and John Mantesta formed a partnership to import and distribute methaqualone, cocaine, diazepam and marijuana. This partnership was known as the "Berry organization."
In early 1982 Thifault transported 300,000 counterfeit quaalude pills from Canada to Berry's house in Florida. Berry distributed 100,000 pills to appellant Casale for him to sell to others in two deliveries of 50,000 pills each. In turn, Berry had 50,000 counterfeit quaaludes delivered to appellant Ippolito in California.
In late March of 1982 Berry delivered the remaining 200,000 counterfeit quaaludes to appellant Casale in Florida. Casale had these narcotics delivered to Ippolito in California.
In April of 1982, the Berry organization imported approximately 1,000,000 counterfeit quaaludes and delivered 280,000 to Casale in Florida for later delivery to Ippolito in California.
Shortly thereafter, appellant Ippolito met with Berry and appellant Casale in California to discuss a plan to import marijuana from Colombia. In May of 1982, Berry gave Ippolito $15,000 to pay the owner of the boat that was to transport the marijuana.
On or about June 2, 1982 coconspirator Edward Barns picked up 16,000 counterfeit quaaludes from Casale.
In late July or early August the Berry organization imported another one million counterfeit quaaludes from Canada for delivery in Florida.
Meanwhile, the Berry organization delivered quaaludes to appellant Pace, a major distributor, in Miami. Pace maintained a ledger recording her drug transactions.
The appellant Link, a/k/a "Ed Club" or "Club Ed", was a close friend of Casale and a distributor for the organization. In June of 1982, Berry had 50,000 counterfeit quaalude pills delivered to Link.
In August of 1982, appellant Ippolito traveled from California to Florida to discuss the marijuana importation scheme with the Berry organization, further pill deliveries and to pay for pills previously On August 26, 1982, D'Amico called coconspirator Lloyd Krusemark in Las Vegas and asked him to drive a load of counterfeit quaaludes from Florida back to California in exchange for $3,000. Krusemark agreed and flew to Florida.
delivered. Appellant D'Amico traveled with him. The two stayed at the Calder Holiday Inn in Miami.
On August 30, 1982, Ippolito, Krusemark and Frank Hanophy purchased a car from Ippolito's brother's car dealership for the trip back to California. As Krusemark and Hanophy loaded the boxes of pills into the car in the parking lot of the Holiday Inn, however, FBI agents detained them and seized the drugs.
The FBI agents questioned Ippolito in his room. He identified himself as "Lou Marino" and told them that "Frank" and "Lloyd" had access to his room. He later denied knowing Frank Hanophy and Lloyd Krusemark, however. Ippolito and Krusemark were not arrested.
The FBI did arrest Berry and Mantesta, however. They seized over 1,000,000 counterfeit quaaludes from Berry's warehouse in Florida.
With Berry in jail, appellant Casale assumed control of the Berry organization, and in September of 1982 Casale received a shipment of 750,000 to 1,000,000 counterfeit quaaludes which he distributed to various people.
In early 1983, Thifault delivered 25,000-50,000 counterfeit quaaludes to appellant Link pursuant to Casale's directions. Later, in March of that year, Thifault made one delivery of 250,000 quaaludes and another of 125,000 quaaludes to appellant Carcaise. In November of 1983, Thifault delivered another 100,000 counterfeit quaaludes to Carcaise. Carcaise, in turn delivered those pills to customers, one of whom was an undercover DEA agent.
Casale remained in control of the Berry organization until Berry resumed control in June of 1983. After Berry resumed control he continued to deal in narcotics. The authorities arrested him in March of 1984. The FBI arrested Lynch and Thifault shortly thereafter.
In January of 1985, appellant Pace had several conversations with an undercover DEA agent named Mark Bumar. In the course of those conversations she admitted that she had an extensive drug distribution network. She was later arrested.
At trial, Carcaise was the only defendant to testify. He admitted that he was convicted in 1983 for dealing in quaaludes and in 1985 or 1986 for smuggling cocaine. He denied all of the charges against him in this case. On cross examination, he admitted that he had sold 250,000 counterfeit quaaludes to an undercover DEA agent.
Appellant Ippolito introduced testimony that he was in Florida in 1981 and 1982 in connection with a legitimate real estate transaction.
1. Whether the Government presented sufficient evidence to identify the appellant, Edwin Link, as the "Club Ed" or "Ed Club" about whom witnesses testified.
2. Whether evidence that appellant Link possessed diazepam with intent to distribute on two separate occasions and obtained the drug from the same distributors each time was sufficient to establish a "pattern of racketeering activity" pursuant to 18 U.S.C. Sec. 1962(c).
3. Whether the district court erred in denying Link's motion for severance.
4. Whether evidence that appellant D'Amico transported "quaaludes" was sufficient to convict him of transporting the illegal substance diazepam.
5. Whether the district court erred in failing to permit appellant Ippolito to call Frank Hanophy as a witness.
6. Whether the district court erred in refusing to give a missing witness instruction regarding Frank Hanophy.
7. Whether the prosecutors and the court constructively amended count one of the indictment charging the Pace and Casale with conspiracy to violate RICO and 8. Whether the trial court erred in denying Casale's motion to exclude the testimony of government witness Thifault, resulting in a violation of appellant Casale's sixth amendment right to counsel.
thus entitling them to a new trial on this count.
9. Whether the district court abused its discretion in sentencing appellant Ippolito by relying on evidence that he was associated with organized crime.
10. Whether the convictions of appellants Casale and Carcaise for RICO conspiracy were in violation of the double jeopardy clause of the fifth amendment?
We consider that only four of the issues raised by the appellants warrant discussion. Issues 1, 3, 4, 7, 8 and 9 are clearly without merit. We, therefore, discuss only issues nos. 2, 5, 6 and 10.
(1) Was evidence that appellant Link possessed diazepam with intent to distribute on two separate...
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