U.S. v. Rizzuto, 100

• Decision Date: 09 October 1974
• Docket Number: No. 100,D,100
• Parties: UNITED STATES of America, Appellee, v. Camillo RIZZUTO, Defendant-Appellant. ocket 74-1724.
• Court: U.S. Court of Appeals — Second Circuit

Page 419

504 F.2d 419

UNITED STATES of America, Appellee, v. Camillo RIZZUTO, Defendant-Appellant.

No. 100, Docket 74-1724.

United States Court of Appeals, Second Circuit.

Argued Sept. 25, 1974.

Decided Oct. 9, 1974.

Irving Anolik, New York City, for defendant-appellant.

Robert Gold, Asst. U.S. Atty. (Paul J. Curran, U.S. Atty., S.D.N.Y., Barbara Ann Rowan and S. Andrew Schaffer, Asst. U.S. Attys. on the brief), for appellee.

Before LUMBARD, FEINBERG and OAKES, Circuit Judges.

FEINBERG, Circuit Judge:

Defendant Camillo Rizzuto appeals from a judgment of the United States District Court for the Southern District of New York, after a non-jury trial before Charles L. Brieant, Jr., J., convicting him of conspiring to violate the narcotics laws and of the substantive offense of possessing 13 kilos of heroin with intent to distribute. ¹ The judge sentenced defendant on each count to concurrent prison terms of four years to be followed by special parole of three years. On appeal, Rizzuto argues only that there was insufficient evidence to link him to the narcotics conspiracy and that since his conviction on the substantive count depended upon application of the doctrine of Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), the conviction on both counts must be set aside.

The evidence of a conspiracy, replete with furtive, abortive meetings and cryptic telephone conversations leading to the actual transfer of heroin for cash, was overwhelming. As to whether Rizzuto was part of the conspiracy, the record discloses the following. In April 1972, a special agent of the United States Drug Enforcement Administration intercepted a suitcase containing 26 bags of white power at Kennedy Airport. The agent had been alerted to its arrival from Paris by a French informant. After it was determined that the white powder was heroin, the suitcase was turned over to M. Chaminadas, a French undercover agent working with the Americans. Several days passed while Chaminadas tried to arrange a sale of the heroin through Canadian traffickers he knew. Finally, it was agreed that the transfer would take place at a New York City hotel on May 9, 1972.

Just before noon of that day Rizzuto registered at the hotel under a false name. He was given Room 1005 on the tenth floor. Chaminadas was registered in a room on the floor above. Rizzuto's co-defendant, Anthony Castiglione, ² who had already met Chaminadas the night before when he examined the heroin, was registered in Room 1525. At about noon, Castiglione asked Chaminadas to come to his room to receive a call from Canada. Chaminadas did so, spoke to one of the Canadian contacts, and was assured that the money wouls soon be available. Later that afternoon, Rizzuto went to Castiglione's room and stayed briefly. Chaminadas then returned to Castiglione's room, and an hour later Rizzuto was again seen entering that room. At about 4:00 P.m, Castiglione told Chaminadas that the money was due to arrive from Brooklyn at about 9:30 that evening.

Shortly before 9:10 p.m., Castiglione was observed leaving the area of Rizzuto's room on the tenth floor carrying a small black attache case later found to contain $122,000. Castiglione went to Chaminadas's room on the eleventh floor and traded the money for the heroin. Castiglione then went back to the floor below and was walking towards Rizzuto's room when, apparently sensing that he was being followed, he became nervous. Castiglione...