U.S. v. Mallah

• Decision Date: 23 September 1974
• Docket Number: 1165 and 1176,1103,Nos. 1141,s. 1141
• Parties: UNITED STATES of America, Appellee, v. Benjamin MALLAH et al., Appellants. Dockets 74-1327, 74-1339, 74-1328 and 74-1499.
• Court: U.S. Court of Appeals — Second Circuit

Page 971

503 F.2d 971

UNITED STATES of America, Appellee, v. Benjamin MALLAH et al., Appellants.

Nos. 1141, 1103, 1165 and 1176 Dockets 74-1327, 74-1339,

74-1328 and 74-1499.

United States Court of Appeals, Second Circuit.

Argued June 21, 1974.

Decided Sept. 23, 1974.

Gerald L. Shargel, New York City (La Rossa, Shargel & Fischetti, New York City, James M. La Rossa, New York City, of counsel), for appellant Mallah.

Nancy Rosner, New York City (Rosner, Fisher & Scribner, New York City, Alan F. Scribner, New York City, of counsel), for appellant Catino.

Steven B. Duke, New Haven, Conn., for appellant Pacelli.

James P. Lavin, Asst. U.S. Atty. (Paul J. Curran, U.S. Atty., for the Southern District of New York, Lawrence S. Feld, Asst. U.S. Atty., of counsel), for appellee.

Before SMITH and MANSFIELD, Circuit Judges, and BARTELS, ^* District judge.

J. JOSEPH SMITH, Circuit Judge:

Benjamin Mallah, Vincent Pacelli, Jr., Alfred Catino and Barney Barrett appeal from judgments of conviction entered on February 26, 1974 and March 15, 1974, after a jury trial in the Southern District of New York, Milton Pollack, Judge. The jury found all four appellants guilty of conspiring to violate the federal narcotics laws and also found Pacelli guilty of two substantive narcotics offenses and Catino guilty of one such offense. We affirm in part and reverse in part.

The four appellants were charged with participating together with forty-two other named co-conspirators in a conspiracy to distribute large amounts of heroin and cocaine in New York. Pacelli, Catino and Mallah were also charged with substantive offenses. Eleven members of this conspiracy were tried and convicted on July 12, 1973 (the Sperling trial), and these convictions are presently on appeal to this court. Five of the named co-conspirators were tried below. Appellant Pacelli was originally a defendant in the Sperling trial, but he was granted a severance at the end of the government's case there. Appellant Mallah was apprehended subsequent to the Sperling trial. Catino, Barrett and Alfred DeFranco were added as defendants in the superseding indictment.

The evidence at this trial established that appellant Pacelli and co-conspirator Herbert Sperling were the central figures within a large organization engaged in distributing heroin and cocaine in New York and that appellant Mallah acted as banker to the operation. The proof against appellants Catino and Barrett showed them to be lesser figures in the organization. The jury found Pacelli innocent of three substantive counts and completely exonerated DeFranco, who had been charged with one count of conspiracy and one substantive count.

Appellants raise numerous points on appeal, one of which requires the reversal of one count of the convictions below.

A. MALLAH

Appellant Mallah contends that there was insufficient evidence, independent of hearsay statements by co-conspirators, to tie him to the criminal venture. The thrust of Mallah's defense was that he did associate with the conspirators, but only in his capacity as their bookmaker. Thus, he explains the evidence of the passage of large sums of money to and from him and the conspirators (chiefly Sperling) as incident to gambling activity rather than to drug dealings. Citing United States v. Di Re, 159 F.2d 818 (2d Cir. 1947), aff'd, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948), he concludes that the government failed to show more than mere association with criminals.

This argument cannot withstand the weight of the independent evidence. Cecile Mileto, wife of co-conspirator Louis Mileto, testified that she saw packages containing white powder piled on a table in Sperling's apartment, in Mallah's presence, and that Mallah asked Sperling, 'Are you going to have enough money for this?' On another occasion, a police officer concealed in the trunk of a Cadillac El Dorado parked in front of the organization's barbershop front overheard the following conversation between Sperling and Mallah, who had just emerged from the shop:

Sperling: 'I got to have the stuff.'

Mallah: 'Don't worry about it.'

Sperling: 'Fifty thou, right.'

Mallah: 'Yes, right, fifty-fifty.'

Sperling: 'But I got to have it. You know I need it.'

Mallah: 'Don't worry about it. I'll see the people this afternoon, tonight or early tomorrow. You should have it.'

Sperling: 'But I need it.'

Mallah: 'Don't worry about it. If the people were straight, if they are not on the run we should have it.'

On a third occasion, Mallah was seen leaving Sperling's apartment carrying a shoe box wrapped in distinctive paper minutes after co-conspirators Mileto and Joseph Conforti had delivered that box, containing proceeds from a narcotics transaction, to Sperling. There also was evidence that Mallah fled when he heard that some members of the conspiracy had been arrested.

Taken together, these pieces of evidence constitute a sufficient showing that Mallah associated himself with the criminal venture charged. United States v. Calabro, 449 F.2d 885, 889-891 (2d Cir. 1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 728, 30 L.Ed.2d 735 (1972).

Mallah's second point on appeal is that the evidence adduced below established two, distinct conspiracies, if any: one, led by Sperling, dealing in heroin; the second, led by Pacelli, dealing in cocaine. But while the evidence did indicate that the co-conspirators often moved in two groups, there was sufficient indicia of criminal partnership-- including common direction from the core conspirators, commingling of assets, mutual dependence, and common business offices-- to link the two groups together. As in a firm with a real estate department and an insurance department, the fact that partners bring in two kinds of business on the basis of their different skills and connections does not affect the fact that they are partners in a more general business venture. Each of the defendants must have been aware that he was participating in a scheme in which there were many suppliers and purchasers of both heroin and cocaine. The jury was entitled to find that the defendants belonged to the same firm. United States v. Bynum, 485 F.2d 490, 495 (2d Cir. 1973), vacated and remanded on other grounds, 417 U.S. 903, 94 S.Ct. 2598, 41 L.Ed.2d 209 (1974); United States v. Arroyo, 494 F.2d 1316 (2d Cir. 1974).

Appellant next contends that he was improperly limited in attempting to contradict the testimony of Joseph Conforti, an accomplice witness. Conforti admitted on direct examination that he had called Sam Kaplan, a defendant in the Sperling trial, on the order of co-conspirator/fugitive Jack Spada, to tell Kaplan that Kaplan should pay Spada $10,000 or else Conforti would testify about a narcotics transaction involving Kaplan. ¹ Conforti testified that Kaplan told him that he, Kaplan, had no money, and that Conforti relayed this to Spada who told Conforti not to worry about it. Thus, Conforti admitted to participating in a scheme to extort money from a defendant in a criminal trial by threatening him with prejudicial testimony.

Appellant wanted more. He wanted to introduce a tape recording of the Conforti-Kaplan conversation and also extrinsic evidence to the effect that Spada had died ² prior to the Conforti-Kaplan conversation. With this, appellant hoped to prove that Conforti acted on his own in this extortion plan and not as Spada's agent. Judge Pollack refused to allow this evidence to be introduced, ruling that it was collateral.

The court did not err in excluding this evidence. Although extrinsic evidence is admissible to show a special motive to lie or fabricate a case against a defendant, United States v. Kinnard, 150 U.S.App.D.C. 386, 465 F.2d 566 (1972); United States v. Haggett, 438 F.2d 396 (2d Cir.), cert. denied, 402 U.S. 946, 91 S.Ct. 1638, 29 L.Ed.2d 115 (1971), the evidence in dispute here is not probative in that respect. The extortion scheme was directed against Sam Kaplan, not against any of the defendants in this case. Thus, this disputed evidence is more fairly seen as inadmissible, extrinsic proof of Conforti's bad character. United States v. Glasser, 443 F.2d 994, 1002-1003 (2d Cir.), cert. denied, 404 U.S. 854, 92 S.Ct. 96, 30 L.Ed.2d 95 (1971); United States v. De Sapio, 456 F.2d 644, 648, n. 1 (2d Cir.), cert. denied, 406 U.S. 933, 92 S.Ct. 1776, 32 L.Ed.2d 135 (1972). Moreover, Conforti's admission to participating in the extortion plot shed a good deal of light on his credibility. The disputed evidence would have added little additional candle power but, considering the confused and obscene character of the taped conversation and the fact that the evidence concerning the date of Spada's death would have been protracted, might well have distracted the jury.

Appellant complains of a second instance in which the court limited his right to impeach a government witness, the cross-examination of Barry Lipsky. Lipsky was a key government witness, an accomplice witness who had been Pacelli's right-hand man. On direct examination, Lipsky testified to the criminal involvement of each of the appellants and admitted to his own involvement in criminal activity. On cross-examination, the court refused to permit appellant to question Lipsky concerning thedetails of one of his crimes, the murder of Patsy Parks.

In February, 1972, a few days before the scheduled trial of an indictment against appellant Pacelli on a different narcotics charge, federal agents attempted to serve a subpoena on Parks, who had testified before the grand jury which issued the indictment. Upon learning that the agents sought her, Parks went to the Hippopotamus Discotheque in New York where she told Lipsky that she urgently wanted to see Pacelli about the subpoena. Lipsky immediately taxied to New Rochelle to inform Pacelli about this development, and there the two men decided that the proper course of action was to kill Parks. They drove back to Manhattan, stopping on the way to...