U.S. v. Sperling

• Citation: 506 F.2d 1323
• Decision Date: 03 March 1975
• Docket Number: 783,D,863,864,851,Nos. 643,782,865,849,1071,862,850,s. 643
• Parties: UNITED STATES of America, Appellee, v. Herbert SPERLING et al., Appellants. ockets 73-2363,73-2366, 73-2379, 73-2387, 73-2397, 73-2412, 73-2420, 73-2446, 73-2512, 73-2714, 73-2742.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 1323

506 F.2d 1323

UNITED STATES of America, Appellee, v. Herbert SPERLING et al., Appellants.

Nos. 643, 782, 783, 849, 850, 851, 862, 863, 864, 865, 1071,

Dockets 73-2363,73-2366, 73-2379, 73-2387,

73-2397, 73-2412, 73-2420, 73-2446,

73-2512, 73-2714, 73-2742.

United States Court of Appeals, Second Circuit.

Argued April 10, 1974.

Decided Oct. 10, 1974, Certiorari Denied March 3, 1975, See

95 S.Ct. 1351.

Raymond E. LaPorte, Tampa, Fla., for appellant Sperling.

Robert Mitchell, New York City, for appellant Goldstein.

Robert B. Schwartz, New York City (Albert J. Krieger, Alan F. Scribner and Krieger, Fisher, Metzger & Scribner, New York City, on the brief), for appellant Bless.

Alfred Lawrence Toombs, New York City, for appellant Juan Serrano.

Nancy Rosner, New York City, for appellant Bassi.

Joel A. Brenner, Mineola, N.Y. (Howard J. Diller and Diller & Schmukler, New York City, on the brief), for appellant Berger.

Michael A. Young, New York City (William J. Gallagher, The Legal Aid Society, New York City, on the brief), for appellant Frank Serrano.

Victor L. Brizel, New York City, for appellant Valentine.

Allen S. Stim, New York City, for appellant Del Busto.

Stuart R. Shaw, New York City (Roy A. Jacobs and Leavy, Shaw & Horne, New York City, on the brief), for appellant Garcia.

Irving Anolik, New York City, for appellant Schworak.

Lawrence S. Feld, Asst. U.S. Atty., New York City (Paul J. Curran, U.S. Atty., John D. Gordan III, S. Andrew Schaffer and James P. Lavin, Asst. U.S. Attys., New York City, on the brief), for appellee.

Before FRIENDLY and TIMBERS, Circuit Judges, and THOMSEN, District judge. ^*

TIMBERS, Circuit Judge:

Appellants Herbert Sperling, Norman Goldstein, Jack Bless, ¹ Juan Serrano, Frank Bassi, Jr., Fred Berger, Frank Serrano, Luis Valentine, Octavio Del Busto, Nelson Garcia and Edward Schworak ² appeal from judgments of conviction entered upon jury verdicts returned in the Southern District of New York on July 12, 1973 after a four week trial before Milton Pollack, District Judge, ³ finding all appellants guilty of conspiring to violate the federal narcotics laws in violation of 21 U.S.C. 846 (1970) (Count One); ⁴ finding Sperling, Bless, Juan Serrano, Frank Serrano Valentine, Del Busto and Garcia guilty on substantive counts of distributing and possessing with intent to distribute hard narcotics in violation of 21 U.S.C. 812, 841(a)(1) and 841(b) (1)(A) (1970) (Counts Three through Eleven); ⁵ and finding Sperling guilty of engaging in a continuing criminal enterprise involving hard narcotics in violation of 21 U.S.C. 848 (1970) (Count Two).

Of the numerous claims of error raised on appeal we find the following to be the principal ones: (1) all appellants claim error with respect to the testimony of co-conspirator Barry Lipsky, the principal government witness; (2) Goldstein, Juan Serrano, Berger, Frank Serrano, Valentine, Del Busto and Garcia claim that there was a material variance between the single conspiracy charged and the multiple conspiracies said to have been proven, and that the evidence was insufficient to support their conspiracy convictions; the (3) Sperling challenges the constitutionality of 21 U.S.C. 848 (1970) and claims that there was insufficient evidence to support his conviction on Count Two. Other subordinate claims of error are also raised.

We affirm in part, and reverse and remand for a new trial in part.

I. OVERALL CONSPIRACY

In view of the issues raised on appeal, we summarize here the essential facts, viewed in the light most favorable to the government, United States v. McCarthy, 473 F.2d 300, 302 (2 Cir. 1972), which showed the nature and scope of a very large, well organized and highly profitable conspiracy from May 1, 1971 to mid-April 1973 among appellants and others to purchase, process and resell hard narcotics. Other more detailed facts necessary to an understanding of our rulings on the legal issues raised will be stated in connection with our discussion of those issues below.

At the hub of the conspiracy were Vincent Pacelli, Jr. and Sperling. Each had at his command the services of others and the sources and outlets for narcotics. Each caused narcotics to be bought, processed and sold. Pacelli had good sources of cocaine; he sold it to Sperling for resale to Sperling's customers. Sperling had good sources of heroin; he sold it to Pacelli for resale to Pacelli's customers. The evidence showed that each of the 11 appellants had a specific role in the conspiracy.

Evidence concerning the Pacelli part of the overall conspiracy was adduced primarily through the testimony of Barry Lipsky, a government witness who was a former participant in the Pacelli operation. Lipsky testified, and his testimony was corroborated by other evidence, ⁶ that 15 of the defendants and 4 of the co-conspirators named in the indictment were participants in the narcotics operations described by Pacelli. ⁷ Pacelli received cocaine in kilo or multikilo quantities from Juan Serrano. He received heroin in multikilo quantities from Bless and Sperling. He sold co-caine in kilo and multikilo quantities to Bless, Berger, Valentine, Sperling and Bassi. Bless sold heroin and purchased cocaine from Pacelli. He resold the co-caine to co-conspirator Jack Finkelstein. Valentine purchased cocaine from Pacelli and agreed to travel to South America to obtain drugs on behalf of Pacelli and his partners, Perez and Bracer. Juan Serrano sold cocaine to Pacelli who resold it to Sperling. Garcia and Del Busto to received from Valentine cocaine which the latter obtained from Pacelli. The evidence showed the participation of Bassi, Berger and Frank Serrano in the narcotics conspiracy directed by Pacelli. In short, witnesses described approximately 47 meetings, conversations and drug sales or transfers beginning in May 1971 and continuing through December 1971 involving members of the Pacelli group.

Evidence concerning the activities of Sperling and the Sperling branch of the conspiracy was adduced primarily through the testimony of Joseph Conforti, a former member of the conspiracy. Conforti's testimony, corroborated by that of Cecile Mileto and Zelma Vance, established that 13 of the defendants and 2 of the co-conspirators named in the indictment were participants in the narcotics operations directed by Sperling. ⁸ These witnesses described approximately 69 meetings, conversations, drugs sales or transfers beginning in early 1971 and continuing through April 1973 involving members of the Sperling group. As with the Pacelli branch of the conspiracy, each of Sperling's workers had a definite role in the conspiracy, including Goldstein and Schworak who delivered narcotics at Sperling's direction. Sperling supervised and directed the purchase, processing and sale of narcotics within his sphere of control.

II. LIPSKY TESTIMONY

All appellants claim error with respect to the testimony of Barry Lipsky, the principal government witness. They argue that the court improperly restricted their cross-examination of Lipsky regarding the contents of a letter written by him on December 22, 1972 to Assistant United States Attorney Morvillo (the Lipsky-Morvillo letter); and that they were prejudiced by the failure of the government to make available to them a letter written by Lipsky on December 6, 1972 to Assistant United States Attorney Feffer (the Lipsky-Feffer letter).

Much of the evidence concerning the Sperling-Pacelli narcotics conspiracy was provided by Lipsky. His testimony was critical because, beginning in April 1971 and continuing until February 1972, he was Pacelli's chief assistant in the latter's narcotics business. He received the narcotics purchased by Pacelli; he stored, tested, diluted and repackaged them for distribution; and he delivered them to Pacelli's customers. He also was present with Pacelli during various narcotics transactions.

(A) Our Prior Decision In United States v. Pacelli

Before turning to appellants' contentions regarding Lipsky's testimony in the instant case, brief reference should be made to our recent decision in United States v. Pacelli, 491 F.2d 1108 (2 Cir. 1974), which involved testimony by the same government witness Lipsky.

In Pacelli, we reversed the conviction of Vincent Pacelli, Jr. ⁹ of injuring and impeding a witness who had testified before a grand jury and had been subpoened by the government as a trial witness in a nartotics case, and also of conspiring with Lipsky to deprive that citizen of her right to be a witness and causing her death. One of the grounds of our reversal and remand for a new trial in Pacelli was the government's failure to furnish the defense, as required by the Jencks Act, 18 U.S.C. 3500 (1970), with the Lipsky-Morvillo letter (the same one referred to above). ¹⁰ This letter described Lipsky's 'terrible mental state' for having caused a mistrial by perjuring himself on the witness stand at a previous trial; stated that his main purpose during the past 9 1/2 months had been to 'try my very best to assist the Government'; and stated that he 'looked forward eagerly to testifying in narcotics cases for the Government, against Vincent Pacelli, Jr. and others.' 491 F.2d at 1112. We concluded that the withholding of this letter had impaired cross-examination and had prevented a fair trial.

(B) Use Of Lipsky-Morvillo Letter At Trial Of Instant Case

The Lipsky-Morvillo letter was given to defense counsel at the trial of the instant case. Appellants nevertheless argue that the court unreasonably restricted their cross-examination of Lipsky regarding the letter and erroneously refused to receive it in evidence. While we fail to understand the need for excluding the Morvillo letter altogether, since any portions of it which were irrelevant to the instant proceeding could easily have been delected, we do not think the ruling was so prejudicial as to require reversal.

Lipsky was questioned at length about the letter....