U.S. v. McClean

• Decision Date: 13 January 1976
• Docket Number: No. 430,D,430
• Citation: 528 F.2d 1250
• Parties: UNITED STATES of America, Appellee, v. John McCLEAN et al., Defendants-Appellants. ocket 75--1269.
• Court: U.S. Court of Appeals — Second Circuit

Page 1250

528 F.2d 1250

UNITED STATES of America, Appellee, v. John McCLEAN et al., Defendants-Appellants.

No. 430, Docket 75--1269.

United States Court of Appeals, Second Circuit.

Argued Nov. 5, 1975.

Decided Jan. 13, 1976.

Patrick M. Wall, New York City, for defendants-appellants John McClean and Edward Codelia.

Victor J. Herwitz, New York City, for defendant-appellant Ramon Viera.

Edward R. Korman, Chief Asst. U.S. Atty. (David G. Trager, U.S. Atty. for the E.D.N.Y., Kenneth J. Kaplan, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for appellee.

Before MEDINA, ANDERSON and MANSFIELD, Circuit Judges.

MANSFIELD, Circuit Judge:

After a jury trial in the Eastern District of New York before Judge Jack B. Weinstein, the appellants, John McClean, Ramon Viera and Edward Codelia, three detectives attached to the Bureau of Narcotics, New York City Police Department, were on June 12, 1975, adjudged guilty of depriving certain individuals of their civil rights by unlawfully taking money and property from them without due process, 18 U.S.C. § 242 (3 counts), conspiracy to do so, 18 U.S.C. § 371 (1 count), and installation of illegal wiretaps in violation of 18 U.S.C. § 2511(1)(a) & (2) (2 counts). ¹ The offenses The evidence, viewed in the light most favorable to the government, as it must be at this stage, United States v. Castellena, 349 F.2d 264, 267 (2d Cir. 1965), cert. denied, 383 U.S. 928, 86 S.Ct. 934, 15 L.Ed.2d 847 (1966), reveals a sordid picture of police corruption, extortion and misconduct that appears to have permeated an important unit of the New York City Police Department. At a time when the public was becoming increasingly alarmed over the growing illicit narcotics traffic, with its harmful consequences in the City of New York, the Special Investigations Unit ('SIU' herein), charged with the duty of using the Police Department's powers and resources to investigate large-scale narcotics dealers and to arrest major violators, became one of the most important branches of the Police Department's Bureau of Narcotics. During the period from 1969 to 1971 the SIU, headed by a bright young police captain, was divided into a series of teams, each composed of four to five policemen operating under an experienced senior who was in turn responsible to a sergeant. At some point in the late 1960's the members and leaders of these teams developed a loose partnership, sanctioned by the captain of the SIU, aimed at obtaining money for themselves unlawfully by using their police authority to shake down narcotics suspects and extort or steal money or property from them.

                all arose out of appellants' corrupt use of their positions as New York City law enforcement officers to extort and misappropriate money from suspected narcotics dealers.  2 Upon this appeal they jointly assert claims of errors frequently heard by us on criminal appeals: that certain counts failed to state a crime, that the evidence was insufficient, that the court erred in its instructions to the jury, that at most a series of separate conspiracies were proved instead of the single continuous conspiracy charged in the indictment, and that certain counts should have been dismissed pursuant to the Eastern District's Plan for Achieving Prompt Disposition of Criminal Cases.  In addition Viera contends that his constitutional rights were violated by the government's failure to advise him of a possible conflict of interest on the part of his attorney.  Finding no merit in any of these contentions, we affirm
                

The extortionary plan was as simple as it was successful. Armed with the powers and weapons given to them for enforcement of laws prohibiting the narcotics trade, the team officers, upon learning through their undercover investigations (at least some of which were unlawful), that certain persons suspected of dealing in narcotics possessed or controlled large sums of money, would close in on the quarry and extract money by use of threats or force. A successful extortion was colloquially described as a 'score,' which would then be split up among the team members, with a share being paid over to the team's superiors. The extent to which the SIU was honeycombed with such corruption was evidenced by proof that during the period from 1969 to 1971 some $10,000 to $12,000 was paid to Captain Daniel Tange, the supervisory officer in charge of the SIU, and comparable amounts to team members, some of whom testified at trial to the pattern of extortion and seizure, the methods used and the parts played by various police officers.

For present purposes it is unnecessary to detail the shake-downs in which appellants, who were members of one of the SIU teams, participated except to note some examples. In November 1970 one of the teams, which consisted of the three appellants and Detective Joseph Nunziata, learned through wiretaps unlawfully installed by them in an apartment building in Queens County that one apartment, No. 6Z, which had been leased to a former employee of the Mexican Embassy, was being used as a refuge by a Chilean narcotics dealer, Nicodemus Olate Romero ('Olate' herein), who controlled large sums of money. On November 19, 1970, McClean, Codelia and policeman Leslie Wolff, with guns drawn, forced their way into the one-room apartment where they held Olate at gunpoint and were joined by Viera and Police Lieutenant John Egan, who had in custody Mrs. Olate and an associate, Gusto Quintanilla, the latter in handcuffs. There followed a police ransacking of the type one would associate with the Gestapo or the Soviet GPU, including the slashing on coats and overturning of furniture, all of which yielded $17,500 in $50 and $100 bills plus several thousand dollars taken from the three persons in custody, a gun, a bag of cocaine and keys to a safe deposit box. After the bedlam had calmed down Codelia reached an agreement with Olate to the effect that if Olate paid the police $60,000, which would be obtained from Olate's safe deposit box, the members of the SIU team would give him his freedom. In order to maintain the appearance of a lawful narcotics search, Quintanilla was by agreement arrested under an alias and released on $2,000 bail. While members of the team kept custody of Olate, his wife withdrew $68,000 from his safe deposit box, of which $60,000 was retained by Codelia for himself and his cohorts. Arrangements were then made for departure from the United States of Olate and Quintanilla, who left for South America on November 21, 1970.

Not all shake-downs participated in by appellants were of such magnitude. However, when opportunities presented themselves appellants were content to extort or steal sums which, while modest by comparison with the Olate 'score,' were nevertheless quite substantial. For instance, on October 27, 1971, appellants' team, which now included a new member, Patrolman Luis Martinez, and operated under Sgt. Gabriel Stefania as supervisor, arrested a narcotics suspect, Ernest Solomon, and upon searching his apartment came across a leather bag containing a large sum of money which they promptly seized. However, instead of turning the full amount over to the Property Clerk at Police Headquarters the officers turned over only $4,125, which Solomon was required to acknowledge as the full amount seized by signing a voucher to that effect, a procedure designed to preclude his later claiming that the larger sum had been taken from him. The balance of the money taken by the officers, except for approximately $700 to $1,000 returned to Solomon, was kept by appellants. ³ In November, 1971, the same team, including appellants, learned as a result of installing an unlawful wiretap at the residence of John Grimke that Grimke and Vito Mirabile were high-level narcotics dealers. This discovery was followed by a search of the Grimke and Mirabile residences, in the course of which appellants broke into Mirabile's Cadillac, where they discovered an attache case containing heroin and approximately $20,000, which they promptly seized. Following essentially the same procedure as in the earlier arrest of Solomon, appellants returned $1,000 to Mirabile, turned in $9,485 to the Property Clerk, which was acknowledged as the full amount taken in a receipt signed by Mirabile, and kept the balance amounting to approximately $10,000 for themselves and their fellow teammates. ⁴

This 'score' was followed by an unsuccessful attempt by members of the team later in November, 1971, to close in On December 4, 1973, Olate, who had been the victim of appellants' November 1970 shake-down, was expelled from Chile and returned to the United States, where he was under indictment in the Eastern District of New York for narcotics violations. Some time thereafter he chose to cooperate with the government, leading to various indictments. On March 4, 1974, appellants were named in a four-count indictment in the Eastern District of New York (74 Cr. 180) charging them with conspiracy to defraud government agencies by failing to advise them of offenses and by comforting and assisting the offenders, with preventing the apprehension of narcotics violators by failing to turn over evidence of federal drug violations, and with obstructing communication of such violations to appropriate governmental agencies, all in violation of 18 U.S.C. §§ 3 and 1510 and 21 U.S.C. §§ 173 and 174. The indictment also charged them with illegal wiretapping, 18 U.S.C. § 2511(1)(a). On May 6, 1974, that indictment was dismissed on the government's motion and on November 22, 1974, the grand jury filed the indictment in the present case, upon which appellants were tried. It contained the six counts of which appellants were found guilty and one illegal wiretap charge (Count 6), of which they were acquitted.

on another large-scale narcotics operator. The effort almost proved to be appellants' undoing when a New York Telephone Company security supervisor, acting on a call from a repairman,...