U.S. v. LoRusso

• Citation: 695 F.2d 45
• Decision Date: 02 December 1982
• Docket Number: Nos. 83,D,84,s. 83
• Parties: UNITED STATES of America, Appellee, v. Vito LoRUSSO and Joseph Errante, Defendants-Appellants. ockets 82-1082, 82-1096.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 45

695 F.2d 45

UNITED STATES of America, Appellee, v. Vito LoRUSSO and Joseph Errante, Defendants-Appellants.

Nos. 83, 84, Dockets 82-1082, 82-1096.

United States Court of Appeals, Second Circuit.

Argued Aug. 31, 1982.

Decided Dec. 2, 1982.

Philip Le B. Douglas, Asst. U.S. Atty., New York City (John S. Martin, Jr., U.S. Atty. for the S.D. of N.Y., Roanne L. Mann, Asst. U.S. Atty., New York City, on the brief), for appellee.

Michael Pollack, New York City (Edward Gasthalter, John L. Pollok, New York City, on the brief), for defendant-appellant Errante.

J. Jeffrey Weisenfeld, New York City (Goldberger, Feldman, Dubin & Weisenfeld, P.C., New York City, on the brief), for defendant-appellant LoRusso.

Before KEARSE, CARDAMONE and WINTER, Circuit Judges.

KEARSE, Circuit Judge:

Joseph Errante and Vito LoRusso appeal from judgments entered after a jury trial in the United States District Court for the Southern District of New York, Thomas P. Griesa, Judge, convicting them of possession of heroin in violation of 21 U.S.C. Sec. 844 (1976), and of conspiring to distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. Sec. 846 (1976). Errante was sentenced to concurrent terms of imprisonment of five years on the conspiracy count and one year on the possession count. LoRusso was sentenced to concurrent terms of imprisonment of two years on the conspiracy count and one year on the possession count.

We affirm the convictions.

I. FACTS

A. Events Leading to the Prosecution

The case arises out of an undercover operation by the United States Drug Enforcement Agency ("DEA"), conducted by DEA Special Agent John A. Costanzo, who was regularly stationed in Milan, Italy. Costanzo was assisted by a confidential informant employed by the DEA and identified only as "Mimmo." According to the trial testimony of Costanzo and Mimmo, the operation had its genesis in a dinner attended by Costanzo and Mimmo in September 1980 at the Santa Lucia restaurant in the Little Italy section of Manhattan. At the dinner, Mimmo introduced Costanzo to LoRusso, the proprietor of the Santa Lucia.

In January 1981, after Mimmo and Costanzo had returned to Milan, Mimmo telephoned LoRusso to chat. LoRusso stated that he had been trying to contact Mimmo because a friend of LoRusso wanted to arrange a million-dollar purchase of heroin. After a number of additional telephone calls, LoRusso flew to Rome in the company of Errante on January 24; they were met at the airport by Mimmo and Costanzo. LoRusso introduced Errante and, outside of Errante's hearing, vouched for him despite Costanzo's comment that Errante was wearing "big black shoes" such as policemen wear.

The four men eventually went to a restaurant, where Errante stated that he was interested in procuring heroin as a representative of some people in New York who were trying to start a small family for the distribution of heroin. The ensuing conversation concerned amounts, price, delivery, and the testing of a sample to determine the purity of the heroin. LoRusso participated in the conversation. Later that day, the four met again, and tentatively agreed on the sale of ten kilograms of heroin, for which Errante proposed to pay the New York market price prevailing at the time of delivery. At that time Errante stated that since everything had been resolved, he would return to New York the following day to consult with his people. Errante asked LoRusso, who was not returning to New York with Errante, to telephone him on January 28 to learn what Errante's people had decided. LoRusso said he would do so and that he would then telephone Mimmo with the information. On January 28, LoRusso telephoned Mimmo and reported that Errante's family were in accord with what had been agreed.

On February 5, 1981, Mimmo and Costanzo arrived in New York to attempt to conclude the sale. Matters did not proceed smoothly. On February 7, Costanzo and Mimmo met with LoRusso and Errante, and Costanzo stated that the price of the ten kilos of heroin would be $120,000 per kilo. Errante stated that he would have to check the price with the people above him, and the four men agreed to meet again the next day. At this point, however, LoRusso commenced to question Errante's bona fides and suggested that Errante might be a policeman. Costanzo stalked away in irritation after pointing out that LoRusso had brought Errante to Rome to introduce him and had vouched for him; and a loud argument erupted between LoRusso and Errante.

Despite their argument, LoRusso and Errante appeared together the next day for the scheduled meeting with Mimmo and Costanzo. At that meeting, it was agreed that the price of the heroin would be $120,000 per kilogram, but Errante stated that his people would not buy all ten kilos at once and preferred to buy one kilo at a time. Costanzo suggested a compromise of five kilos, but no agreement was reached. It was agreed, however, that when an amount was settled on, deliveries would take place in the following way: Errante and an associate would bring the money to the Santa Lucia, where Mimmo and Costanzo would count it and check its genuineness; Errante and Costanzo would then go to where the heroin was stored and Errante would have it tested; Mimmo and Errante's associate would remain at the restaurant with the money; if the heroin was of satisfactory quality, Errante would speak to his associate at the Santa Lucia and instruct him to allow Mimmo to leave with the money while Errante took possession of the heroin. At this February 8 meeting, LoRusso again speculated that Errante might be a policeman.

That evening, when Mimmo went to the Santa Lucia, he found Errante and LoRusso arguing about LoRusso's suspicions. Errante suggested that they settle the matter by speaking to Errante's people, and he and LoRusso left the restaurant. LoRusso later returned alone and told Mimmo that the man they had gone to see, referred to only as "Mike," had not been available.

On February 9 at the Santa Lucia, Costanzo and Errante agreed to the sale of one kilogram of heroin and arranged for delivery of a sample for testing. Costanzo informed Mimmo and LoRusso of the arrangements. LoRusso repeated his suspicion that Errante was a policeman, but also expressed concern that in the delivery procedures, Errante might attempt to take the heroin and keep the money. LoRusso suggested that he be allowed to remove the money to another restaurant or to take it to the cellar of the Santa Lucia whence he could escape. Costanzo and Mimmo became angry with LoRusso and told him that they did not wish to have anything further to do with him.

That evening, however, when Mimmo returned to the restaurant, LoRusso said that he had managed to contact "Mike" and indicated that his suspicions of Errante had been allayed, saying there would be no further problem. Mimmo then told LoRusso that LoRusso could attend the next day's meeting, at which the sample would be delivered.

On February 10, in the presence of LoRusso and Mimmo in LoRusso's car, Costanzo gave Errante a sample of heroin to be tested by Errante's chemist. Although the test would have required only a small fraction of one gram, Costanzo gave Errante three grams, which had a retail value of approximately $6,000. Errante told LoRusso to call him later to learn the results of the test. LoRusso thereafter duly telephoned Errante and then informed Mimmo that the delivery could go forward the next day.

On February 11, however, when Costanzo and another DEA agent met Errante and LoRusso at the Santa Lucia, Errante demanded that the heroin be supplied in advance of payment. At this point Costanzo refused to pursue the deal and he and his partner left the restaurant.

Costanzo made two unsuccessful efforts to revive the transaction. First, he had Mimmo telephone LoRusso immediately, and Mimmo and LoRusso met privately that evening. LoRusso complained to Mimmo that Costanzo should not have brought his companion to the meeting earlier that day, since the companion was a stranger to LoRusso. He also suggested that Costanzo should have agreed to deliver the heroin on consignment, and asked whether there was a way the deal could be revived. This conversation was interrupted without any resolution of the matter. Mimmo's second attempt took place on February 26, after he had returned to Milan. Mimmo telephoned LoRusso and stated that Costanzo was now willing to supply the heroin in advance of payment, and asked whether LoRusso could contact Errante. LoRusso replied that Errante did not want to know anything more, that LoRusso had not seen him for two weeks, and that Errante had instructed him to "tear everything," including Errante's phone number.

B. The Indictment and the Proceedings During Trial

Errante and LoRusso were arrested in September 1981 and were indicted on two counts. Count 1 charged them with conspiring with each other and with other persons unknown to the grand jury to distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. Sec. 846. Count 2 charged each defendant with possession with intent to distribute heroin, in violation of 21 U.S.C. Secs. 812, 841(a)(1), and 841(b)(1)(A) (1976). At trial the government's principal witnesses were Costanzo and Mimmo, who testified to the events described above. Neither defendant testified.

At the close of the government's case, the defendants moved pursuant to Fed.R.Crim.P. 29(a) for judgments of acquittal as to count 2 on the ground that the evidence was insufficient to establish beyond a reasonable doubt that they had intended to distribute the heroin in their possession. ¹ The trial court orally granted the motions, stating that the proof of intent to distribute was "entirely speculative and Count 2 is dismissed." (Tr. 733.)

The government immediately moved pursuant to Fed.R.Crim.P. 31(c) to have the court submit a charge of simple possession, without intent to distribute, in...