U.S. v. Podlog
| Decision Date | 16 May 1994 |
| Docket Number | 1612 and 1652,D,Nos. 1506,1557,s. 1506 |
| Parties | UNITED STATES of America, Appellee, v. David PODLOG; Alexander Moysif; Yelena Moysif; Joseph Forzano; Lyudmila Forzano; Michael Cardone; Ronald Petrino; Gennady Chernyakhovsky; Adolf Sirotnikov; Aron Roizis; Yefim Kats; Yura Popov, Defendants, Calogero Badalamenti; John Romano; Giuseppe Genna; and Sergey Mogorichev, also known as "Sergio", also known as "Seryi", Defendants-Appellants. ockets 93-1734, 93-1775, 93-1776 and 93-1777. |
| Court | U.S. Court of Appeals — Second Circuit |
Michael H. Sporn, New York City, for defendant-appellant John Romano.
David A. Lewis, New York City (The Legal Aid Society, Federal Defender Div., Appeals Bureau, New York City, of counsel), for defendant-appellant Giuseppe Genna.
Gary S. Villanueva, New York City, for defendant-appellant Sergey Mogorichev.
William Lupo, Brooklyn, NY (Leighton M. Jackson, Brooklyn, NY, of counsel), for defendant-appellant Calogero Badalamenti.
Robert E. Rice, Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty. S.D. N.Y., John W. Auchincloss II, Asst. U.S. Atty., New York City, of counsel), for appellee U.S.
Before: OAKES and MINER, Circuit Judges, and CARTER, District Judge. **
Appellants Calogero Badalamenti, John Romano, Giuseppe Genna and Sergey Mogorichev appeal from judgments of conviction and sentence entered on October 21, 1993 (Badalamenti and Mogorichev), November 1, 1993 (Genna) and November 22, 1993 (Romano) in the United States District Court for the Southern District of New York (Keenan, J.), following a jury trial, for conspiring to distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. Sec. 846. The district court sentenced Badalamenti to a 135-month term of imprisonment, to be followed by a five-year term of supervised release. Romano received a sentence of seventy-eight months in prison, to be followed by a five-year term of supervised release, while Mogorichev was sentenced to a sixty-three month term of imprisonment, to be followed by a five-year term of supervised release. The district court sentenced Genna to a 120-month term of imprisonment, to be followed by a five-year term of supervised release.
For the reasons that follow we vacate the sentence imposed upon Genna by the district court, remand for Genna's resentencing and affirm the judgments in all other respects.
In 1991, defendant Yossif Roizis organized a scheme to smuggle heroin into the United States from Poland. In March of that year, Roizis met with defendant Alex Moysif and told him that defendant David Podlog would pay Moysif $10,000 to smuggle two kilograms In April of 1991, Moysif and defendant Yefim Kats began to sell heroin in New York City. On April 15, 1991, an informant ("CI"), in the presence of DEA Special Agent Louis Cardinali, contacted Kats and arranged to purchase 230 grams of heroin for $43,700 on the following day. On April 16, Moysif and Kats sold the heroin to the CI and Agent Cardinali, who was posing as the CI's partner. Later that day, Moysif paid Roizis $25,000 for the heroin.
of heroin from Warsaw, Poland into the United States. Later that month, Moysif made two trips to Poland and successfully smuggled approximately two kilograms of heroin into the United States at the conclusion of each trip.
In the weeks following the April 16 sale, Moysif provided several samples of heroin to Agent Cardinali and the CI. On June 10, 1991, while providing Agent Cardinali with one of these samples, Moysif and Agent Cardinali discussed a possible future purchase of 125 grams of heroin. On June 28, 1991, Agent Cardinali contacted Moysif and inquired further about purchasing 125 grams. The transaction was not consummated until July 3, when Agent Cardinali paid $22,500 to Moysif and Kats for the agreed upon amount of 125 grams. Moysif had obtained the heroin from Podlog in exchange for $16,500.
Also during the summer of 1991, Moysif asked defendant Joseph Forzano whether he knew of anyone who was interested in buying heroin. Forzano told Moysif to contact defendant-appellant Calogero Badalamenti, who ran the Caffe Venezia in Brooklyn, New York. In early August of 1991, after receiving several samples of heroin from Moysif, Badalamenti purchased one ounce of heroin for $5,000. Badalamenti also introduced Moysif to defendant-appellant "Joe" Genna and told him that Genna could help him sell heroin. Moysif provided heroin samples to Genna.
On August 14, 1991, Moysif contacted Podlog and told him that he might need to obtain one-half kilogram of heroin. Podlog informed Moysif that it would cost $50,000 and instructed him to phone and ask for a "catalog" when he needed the heroin. Badalamenti and Genna met Moysif that evening at the Caffe Venezia and ordered one-half kilogram of heroin. Moysif informed them that the heroin would cost $70,000. The next morning, Moysif contacted Podlog and requested a "catalog." Later that morning, Podlog gave Moysif the heroin and Moysif told him that he would pay him at a later time. Moysif immediately went to the Caffe Venezia where he met Badalamenti, who took the heroin and told Moysif that he would contact him as soon as he got the money. Later that day, Badalamenti gave a sample of the heroin to Genna. At about 8:00 p.m., Badalamenti informed Moysif that Genna had not gotten back to him about the heroin, but that he was certain that Genna would buy it. Moysif told Badalamenti that Podlog was pressuring him for the money for the heroin. Later that evening, Badalamenti and Genna told Moysif that they knew someone in Queens who would buy the heroin.
The following day, August 16, Badalamenti and Genna drove to an auto-body shop owned by defendant-appellant John Romano, the "someone" referred to by Badalamenti and Genna. Moysif followed in a separate car. Romano told Moysif that he wanted someone to test the heroin and he would then return with the money for the heroin. While Moysif and the others waited, Romano left to make several telephone calls, returning each time to tell Moysif that the customer was not ready yet. After waiting a while longer, Genna, who had been talking with Romano, informed Moysif that Romano had called off the deal. Moysif then took the one-half kilogram and returned to Brooklyn. Later that day, Moysif gave the heroin to Badalamenti and told him he didn't care what he did with it, but that he needed to receive payment soon.
The next morning, Podlog began to pressure Moysif for the money for the one-half kilogram of heroin. Moysif assured Podlog that he would get his money. After speaking to Genna twice and receiving no definitive answers concerning whether a sale would occur, Moysif contacted Badalamenti that evening and met with him, Genna and Forzano at the Caffe Venezia. Romano also was contacted, and he reassured Moysif that he On August 18, 1991, after numerous telephone calls and beeper contacts between Romano and Moysif, it became apparent that Romano's buyer was not going to consummate the deal. Moysif telephoned Podlog and left a message on his answering machine informing him of the situation. Upon hearing the message, Podlog telephoned Moysif and threatened to kill him by chopping off his head. Moysif immediately contacted Romano and threatened to "hang" Genna and "kill" Badalamenti. That evening, however, Moysif met with Badalamenti, Genna and Romano and reduced the price of the heroin from $70,000 to $50,000--$40,000 payable immediately and $10,000 due when the heroin was sold. Romano agreed to pay $20,000, and Badalamenti and Genna each agreed to pay $10,000. The next morning, Genna paid Moysif $10,000. Moysif then went to the Caffe Venezia to wait for Romano. When Romano failed to show up, Moysif and others drove to the autobody shop to collect the $20,000 from Romano. When Moysif arrived at the shop, Romano informed him that he was still trying to raise the money, but that he would have it the following day. Moysif displayed a gun to Romano and told him that he was carrying the gun because of Podlog's threats and that he needed the money soon. The next day, August 20, Romano paid Moysif $20,000 and Moysif turned this money over to Podlog.
had a buyer in Long Island who would consummate the deal the following day.
On August 29, 1991, Agent Cardinali contacted Moysif and inquired about purchasing another 125 grams of heroin. That afternoon, Agent Cardinali and the CI met with Moysif and defendant Gennady Chernyakhovsky, at which time Agent Cardinali purchased the heroin from Moysif for $22,500.
The next day, Genna met with Moysif at the Caffe Venezia and told him that he had a potential buyer for either 125 or 400 grams of heroin. Moysif assured him that it would not be a problem and told him to let him know "when" and "how much." That evening, Genna met with Moysif and told him that he would need 125 grams of heroin the next morning. At approximately 1:00 pm on August 31, 1991, Moysif obtained 83 grams of heroin from Podlog and combined it with 42 grams he already had. Moysif then went to the Caffe Venezia where he sold the 125 grams to Genna in exchange for $17,000.
On September 2, 1991, Badalamenti told Moysif that he had a customer who wanted to buy one kilogram of heroin. Moysif contacted Podlog, who initially agreed to provide the heroin. However, when Moysif attempted to make arrangements to pick up the heroin, Podlog refused to provide it. On September 5, Moysif met with Podlog and pleaded for the heroin; Podlog eventually acquiesced. However, when Moysif arrived at the Caffe Venezia to inform Badalamenti that he had obtained the heroin, Badalamenti told him that the deal was off. When Moysif related this to Podlog, Podlog berated him and refused to do business with him again. Shortly thereafter, Moysif contacted his friend, defendant-appellant Sergey Mogorichev, who had been with Badalamenti...
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