U.S. v. Puzzo

• Citation: 928 F.2d 1356
• Decision Date: 01 April 1991
• Docket Number: D,No. 921,921
• Parties: 32 Fed. R. Evid. Serv. 843 UNITED STATES of America, Appellee, v. PUZZO, et al., Defendants, Joseph Paci, Defendant-Appellant. ocket 89-1475.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 1356

928 F.2d 1356

32 Fed. R. Evid. Serv. 843

UNITED STATES of America, Appellee, v. PUZZO, et al., Defendants Joseph Paci, Defendant-Appellant.

No. 921, Docket 89-1475.

United States Court of Appeals Second Circuit.

Argued March 14, 1990.

Decided April 1, 1991.

Hal Meyerson, New York City (Meyerson & Ramos, New York City, of counsel), for defendant-appellant.

Jacques Semmelman, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Matthew E. Fishbein, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y., of counsel), for appellee.

Before KEARSE, CARDAMONE and MAHONEY, Circuit Judges.

MAHONEY, Circuit Judge:

Defendant-appellant Joseph Paci appeals from a judgment of conviction entered on September 26, 1989 after a jury trial before Eugene H. Nickerson, Judge, in the United States District Court for the Eastern District of New York. Paci was convicted on both counts of a two count indictment charging both Paci and his codefendant, Salvatore Puzzo, ¹ with conspiracy to import, distribute, and possess with intent to distribute heroin in violation of 21 U.S.C. Secs. 846 and 963 (1988), and possession of heroin with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (1988) and 18 U.S.C. Sec. 2 (1988).

On appeal, Paci challenges the sufficiency of the evidence to support his convictions. He also contends that the district court improperly restricted his direct testimony, thus prejudicially interfering with his ability to present a defense.

For the reasons that follow, we affirm the judgment of conviction.

Background

This case arose out of a Drug Enforcement Administration ("DEA") investigation into allegations that an organization was importing heroin from Italy into the United States with the assistance of one or more corrupt United States customs officials at John F. Kennedy International Airport. Taken in the light most favorable to the government, and construing all permissible inferences in its favor, see United States v. Diaz, 878 F.2d 608, 610 (2d Cir.) (citing United States v. Chang An-Lo, 851 F.2d 547, 554 (2d Cir.), cert. denied, 488 U.S. 966, 109 S.Ct. 493, 102 L.Ed.2d 530 (1988); United States v. Grubczak, 793 F.2d 458, 463 (2d Cir.1986); United States v. Nersesian, 824 F.2d 1294, 1324 (2d Cir.), cert. denied, 484 U.S. 957, 108 S.Ct. 355, 98 L.Ed.2d 380, 484 U.S. 958, 108 S.Ct. 357, 98 L.Ed.2d 382 (1987), 484 U.S. 1061, 108 S.Ct. 1018, 98 L.Ed.2d 983 (1988)), cert. denied, --- U.S. ----, 110 S.Ct. 543, 107 L.Ed.2d 540 (1989), the evidence at trial established the following.

Commencing in October 1985, Special Agent Nicholas Alleva of the DEA participated in an investigation into the activities of Joseph Paci and others. Working undercover, with the assumed name Antonio ("Nino") Alfieri, Alleva posed as a large scale narcotics trafficker. With the assistance of an informant, Nick Argano, he arranged to travel to Italy and meet with several individuals, including Joseph Paci, in order to buy heroin.

Alleva first traveled to Italy on October 27, 1985. Following Argano's instructions, he remained in Italy until November 7, 1985 "awaiting a phone call or directions from ... Paci," which never came. Upon his return to the United States, Alleva contacted the informant and then telephoned a hotel in Naples and spoke to Paci. It became apparent that there had been a mix-up in communications, and a second trip was planned.

On November 12, 1985, Alleva again traveled to Italy. He carried $40,000 in DEA funds to use as a partial payment for the purchase of a kilogram of heroin. The total purchase price agreed to by Alleva and Paci was $90,000. On November 13, Alleva met with Paci at the Excelsior Hotel in Naples. Paci advised Alleva that the "package" was ready and would be delivered to Paci by two Italian men.

After Paci told Alleva to change his travel arrangements so they could leave Italy together the following morning, Alleva, Paci, and the two men went together by car to a travel agency. When they arrived, Paci told Alleva to give the $40,000 to one of the Italian men, who remained in the car while the others went into the travel agency. After the travel arrangements were made, the other Italian man told Paci that the package would be delivered to Paci's hotel room by 11:00 that night, or, at the latest, by early the following morning. Later, Alleva and Paci had dinner in a restaurant in Naples. During dinner, Alleva expressed concern about the package, and Paci replied that since he was being paid, he would do the worrying.

Alleva was awakened at 6:00 a.m. the following morning by a telephone call from Paci, who advised him that everything was ready. Asked whether he had the package, Paci responded: "[E]verything is okay, let's me[e]t at the airport." Paci then "expressed his desire [that Alleva and Paci] leave separately and not speak to each other." At the Naples airport, Alleva tried to engage Paci in conversation, but Paci refused to speak with him, except to repeat "everything is okay." In the Rome Airport, after the initial leg of the journey, Paci again refused to converse with Alleva. Alleva and Paci sat apart from each other on the flight from Rome to New York. Finally, upon arriving at Kennedy Airport, they remained separate, again per Paci's instruction.

Acting upon information supplied by the informant Argano on the day following Alleva's return from Italy, Alleva collected an additional $10,000 in DEA funds to take to Paci's home at 2170 79th Street, Brooklyn. The additional cash apparently was needed so that an unidentified Kennedy Airport employee would release the package of heroin from his custody. On November 18, Alleva, accompanied by Argano, brought the money to Paci's home. Paci was not there. Instead, they were met by Puzzo, who was introduced to Alleva by Argano. Puzzo directed Alleva to place the $10,000 under a sofa cushion. Puzzo told Argano that Paci was not home but would return shortly, and instructed Argano to call Paci the following morning.

Alleva returned to Paci's residence on November 27, 1985. Based upon information provided by Argano, Alleva expected to receive one-eighth of the kilogram of heroin that Paci had smuggled in from Italy. Alleva understood from Argano that after the balance had been sold by Paci and Puzzo, Alleva would receive a portion of the proceeds. As Alleva approached Paci's residence, Paci came outside to meet him and said: "I have something for you." Paci opened the trunk of a red Oldsmobile and removed a brown paper bag, which he placed in Alleva's attache case. When Alleva apologized for not trusting Paci and having questioned whether he had the package, Paci responded: "I could not tell you I had the package." Alleva left after agreeing to contact Paci "to let him know the quality of the merchandise."

Inside the brown paper bag was a transparent bag that contained white powder. Alleva did not conduct a field test, but submitted the package to the DEA laboratory for testing. The laboratory analysis revealed that the package contained not heroin, but Diazepam (valium). After receiving the report from the laboratory, Alleva met with Paci on December 6, 1985 at a diner in Brooklyn. The informant Argano was also present. Alleva expressed his dissatisfaction with the package, stating that "it was not what it was supposed to be."

Paci insisted that he did not know what had happened, that he had received the package directly from the two men in Naples, and "they had told him it was good." Upon further complaint from Alleva, Paci acknowledged that the two men had told him that the package contained only 600 grams rather than a full kilogram, and that Alleva would receive the remaining 400 grams upon paying the full purchase price. When Alleva suggested that Paci had done something wrong at the airport, Paci stated that "that was totally out of the question, he [Paci] had possession of the package," and had dealt only with confederates in customs who were totally reliable "to bring the package in." The conversation ended when Alleva refused Paci's suggestion that he purchase an additional half kilogram of better quality heroin from the two Italian men for $20,000. Later that month, Alleva was transferred by the DEA to a different assignment, as a result of which he played no further role in this investigation.

Detective Richard Platzer resumed the investigation approximately six months later. He assumed the undercover role of a narcotics trafficker, using the name "Rich Pizzo." Platzer went with Argano to Puzzo's residence in Brooklyn on June 17, 1986. Argano introduced Platzer as an associate of "Nino," the nickname used by Alleva in his undercover role. Platzer told Puzzo that "Nino" was no longer involved, that the money provided for the defective package Alleva had received from Paci was Platzer's, and that Platzer was therefore owed the $50,000 he had paid plus an additional $10,000 for expenses. Puzzo told Platzer to be patient, and indicated that based on two telephone calls he had placed to Italy, he was expecting "a package to come in."

On September 25, 1986, Platzer and Argano met with Puzzo at Puzzo's residence in Brooklyn. The three then drove to a nearby intersection, where Puzzo and Argano left the car and disappeared from Platzer's view. They returned after a short period, and Puzzo handed Platzer a plastic bag containing white powder, which subsequent laboratory analysis revealed to be 265.1 grams of heroin. Puzzo stated: "[T]his takes care of part of the problem." Platzer responded: "yes, now we can start making money."

Puzzo agreed to notify Platzer when he had more heroin available. Although Platzer regarded the $50,000 debt resulting from the prior valium delivery as discharged, he told Puzzo that an additional $10,000 was still owed to cover the expenses of Alleva's trip to Italy.

On October 8, 1986, Platzer gave $5,000 to Puzzo, who was to secure five ounces of heroin...