U.S. v. Pugliese, s. 663 and 662
| Decision Date | 07 July 1983 |
| Docket Number | Nos. 663 and 662,D,s. 663 and 662 |
| Citation | 712 F.2d 1574 |
| Parties | 13 Fed. R. Evid. Serv. 1105 UNITED STATES of America, Appellee, v. Sam PUGLIESE and Anthony Izzo, Defendants-Appellants. ockets 82-1250 and 82-1252. |
| Court | U.S. Court of Appeals — Second Circuit |
John H. Jacobs, New York City (Kulcsar & Jacobs, New York City, of counsel), for defendant-appellant Pugliese.
George R. Goltzer, New York City (Finger, Goldberg & Asen, P.C., New York City, of counsel), for defendant-appellant Izzo.
John N. Villios, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., E.D.N.Y., Jane Simkin Smith, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for appellee.
Before KEARSE, WINTER and PRATT, Circuit Judges.
Sam Pugliese and Anthony Izzo appeal from judgments entered in the United States District Court for the Eastern District of New York (Eugene H. Nickerson, Judge ), convicting them, upon a jury verdict, of conspiracy to import heroin into the United States, 21 U.S.C. § 963 (1976); importation of heroin into the United States, 21 U.S.C. §§ 952(a), 960(a)(1) (1976); and possession of heroin with the intent to distribute, 21 U.S.C. § 841(a)(1) (1976). Both defendants contend that expert testimony by an agent of the Drug Enforcement Administration (DEA) was improperly admitted into evidence. In addition, Pugliese argues that the evidence against him was insufficient to support the importation and possession counts, and Izzo asserts that Judge Nickerson erred in excluding from evidence a sworn statement by a witness who was unavailable at the time of trial. Finding no merit in any of these contentions, we affirm.
On July 10, 1981, customs officials at J.F.K. International Airport in New York apprehended Surinder Mehta when a routine inspection revealed that he was attempting to smuggle roughly four kilograms of heroin into the United States from his native India. Within an hour of his arrest, Mehta agreed to cooperate with the DEA by making recorded telephone calls and arranging a controlled delivery of the heroin to its intended recipients. Over the course of the next four days, Mehta completed a closely supervised deal with defendants Pugliese and Izzo which led to their arrest and subsequent convictions.
Mehta's testimony was the centerpiece of the government's proof at trial. He testified that he first met Pugliese and Izzo in March 1981, when he traveled to the United States on behalf of a fellow countryman, Sam Biryani. The dual purpose of his mission was to collect money owed Biryani from a previous heroin transaction, in New York, and to contact one Jeffrey Robinson, who had previous contacts with both Biryani and Mehta, in Florida. Biryani had allegedly instructed Mehta to ask Robinson whether he knew of any prospective purchasers of Biryani's heroin.
Mehta testified that shortly after he arrived at Robinson's house in Pompano Beach in March, Pugliese appeared on the scene. Upon being informed of Mehta's purpose, however, Pugliese immediately ruled out the possibility of any personal involvement. Nevertheless, he volunteered to put Mehta in touch with someone who might be interested and proceeded to drive him to Izzo's home. There, Pugliese introduced Mehta as "the one we have been waiting for" and Izzo echoed "we have been waiting for you for a long time". Mehta then indicated that "we can get heroin into this country" in approximately four to five weeks, and Izzo, in turn, claimed that he could sell it. Mehta left this meeting with Pugliese's business card in hand and eventually returned to India via New York.
Mehta next returned to Florida in May 1981. He made arrangements to meet Pugliese at a bar where he informed him that a shipment could be sent in three to four weeks; Pugliese remained noncommittal. The two then drove directly to Izzo's house where Izzo confirmed his willingness to proceed with the transaction. Once again, Mehta returned to India via New York.
The prosecution presented the critical events of the four days immediately following Mehta's arrest to the jury by combining Mehta's testimony with tape recordings of the phone calls he placed to Pugliese and Izzo during that time. This evidence showed that on July 11, the day after he was arrested, Mehta spoke with Pugliese twice. In the first conversation, Mehta told Pugliese that he had arrived in New York with the "things". This prompted the following exchange:
Pugliese: Well I don't know with these guys here, I don't trust 'em.
Pugliese: None of 'em. I only wonder if you want to deal with them direct. That's different. You know where Jeffrey is don't you?
Mehta: Um hum.
Mehta: Well, I don't know about ... I don't know. You are the only man whom I, whom I trust, you know.
Pugliese: Well, I I I don't want ... I can't.... I don't want to get involved with it, Doc, I don't want to have anything to do with it. ' Cause I I its too risky for me, and these men, these people are ... are that handle that stuff are nuts ... I don't know, I'm going down to see Tony right now. I ought to see him in about two hours. If you want me to give him a message I can give him a message.
Despite his apparent uneasiness, as the conversation continued Pugliese agreed to have Mehta telephone him later. Before hanging up, Pugliese also defined the limited role he was willing to play in the evolving negotiations:
Pugliese: Yeah. The only thing I say is this, doc.
Mehta: Right.
Pugliese: I mean if I, if I can arrange this for you.
Mehta: Right.
Pugliese: Just don't forget me.
Mehta: Ok.
Pugliese: I can't make nothing on this end.
Mehta: Ok.
Pugliese: All right.
Mehta: Ok.
Pugliese: And I know you'll treat me right.
Mehta: Ok. And, uh, Sam.
Pugliese: Yeah.
Mehta: And, uh, make sure that I get my money.
Pugliese: Well, this is what I mean, I'm gonna you know put you together.
Pugliese: And I'll try I'll do everything I can. The only thing I'm saying to you--I'm not guaranteeing anything....
Several hours later, however, Pugliese was willing to play a more active role. During the second of the recorded July 11 conversations, Pugliese and Mehta openly discussed the quality, quantity and price of the heroin, while Pugliese occasionally conferred with Izzo in inaudible side conversations. Pugliese further advised Mehta: "I'm going between for the two of you and if Tony guarantees it ... Tony says to me yeah the money is there ... then I'll go ahead and guarantee it too". However, because Pugliese was reluctant to meet Mehta at the airport if he was carrying "that stuff", the conversation ended with an agreement that Mehta would call Pugliese from a motel when he arrived in Florida two days later.
Mehta arrived in Miami as scheduled on July 13, accompanied by four or five DEA agents. That evening he spoke briefly with Izzo; the following morning he placed a call to Pugliese and received return calls from both Izzo and Pugliese. From these recorded conversations, it was apparent that Izzo was prepared to exclude Pugliese from the transaction in order to maximize his own profit. Pugliese, on the other hand, reverted to his earlier position on the periphery of the dealings, but nevertheless claimed a personal stake. He thus indicated to Mehta that although Mehta would be dealing directly with Izzo, he should "remember" Pugliese since Pugliese had been "hurt pretty bad with Jeffrey". In the last recorded conversation, Pugliese informed Mehta that Izzo was on his way to Mehta's hotel and reminded Mehta: "Don't forget, you're taking me in now".
When Izzo arrived at Mehta's hotel with his girl friend that afternoon, he was greeted in the lobby by Mehta and DEA undercover agent Jerry Castillo, whom Mehta introduced as his "friend". All four proceeded to Mehta's room where Izzo was told he was to negotiate with Castillo. According to Castillo, Izzo originally indicated that he wished to take a small sample of heroin and have it tested. If satisfied, he would then purchase one-half to one kilogram at a time in separate purchases. After Castillo feigned anger that Izzo was not simply taking all four kilograms, the two agreed upon a price of $78,000 per kilogram. Izzo used a calculator to determine a price per ounce of $2,000, which he removed from a small purse and handed over to Castillo. Castillo then produced a package from which Izzo was to weigh out an ounce, but no scale was available. Izzo found a smaller bag within the package, containing what appeared to be approximately ten grams of heroin, and indicated that he would take that in lieu of an ounce. However, Castillo refused to refund Izzo's $2,000, stating, in his own words, "No, Tony, we already made a deal on the ounce." Instead, Castillo offered Izzo the opportunity to take a second ounce on credit, which Izzo accepted. Before Castillo gave the arrest signal, Izzo also indicated to Castillo, who pretended to be nervous about keeping the remainder of the heroin in the hotel room, that he knew of a "stash place" in Pompano.
To bolster its case on the conspiracy count, the government also called James Robert Hook as a witness. Testifying as a cooperating witness under an agreement with federal and state authorities, Hook claimed that he was present at a meeting at Izzo's house in late April or early May 1981, at which Pugliese instructed a man known as "R.G." to go to India to help arrange a heroin transaction. This testimony was corroborated by the introduction into evidence of a passport application executed by a "Richard David Goodman", a Pan American Airlines ticket issued to "R. Goodman" showing the holder's itinerary for April 29 to June 16, 1981, including a stay in New Delhi from May 22 to June 12, 1981, and a customs declaration executed by "Richard David Goodman" on June 16, 1981 upon his return to the United States.
...
To continue reading
Request your trial
-
U.S. v. Young
...expert witness suggested, merely an operation from which diluents for narcotics were distributed. Thus, as in United States v. Pugliese, 712 F.2d 1574, 1582 (2d Cir.1983), the expert testimony related to "the issues of fact that were properly before the In addition, to the extent that Magno......
-
Livingston v. State, 57198
...for the first time on appeal. See Williamson v. State, 330 So.2d 272, 276 (Miss.1976). See M.R.E. 103(a)(1); see also United States v. Pugliese, 712 F.2d 1574 (2d Cir.1983). Alternatively, were we to reach the merits of Livingston's claim, we still find it to be without First, we note that ......
-
State v. Draganescu
...474 F.2d 705 (2d Cir.1973) (distinguishing U.S. Supreme Court decisions). 58. See Robinson, supra note 52. 59. See United States v. Pugliese, 712 F.2d 1574 (2d Cir.1983). See, also, Blum v. Bacon, 457 U.S. 132, 102 S.Ct. 2355, 72 L.Ed.2d 728 60. State v. Morrow, 273 Neb. 592, 731 N.W.2d 558......
-
State v. Berry
...drug dealers commonly register cars and apartments in names of female friends to conceal narcotics activities); United States v. Pugliese, 712 F.2d 1574, 1578-82 (2d Cir.1983) (sustaining admission of expert testimony concerning quantity and purity of heroin used by addicts in context of de......