U.S. v. Viserto

• Decision Date: 21 March 1979
• Docket Number: Nos. 476,s. 476
• Parties: 4 Fed. R. Evid. Serv. 32 UNITED STATES of America, Appellee, v. Frank VISERTO, Jr., Richard Rocco, Joseph Solce, Garnet Johnson, Sarah Payne, Howard Williams and Prentiss Covington, Defendants-Appellants. to 482, Dockets 78-1281 to 78-1283, 78-1305 to 78-1308.
• Court: U.S. Court of Appeals — Second Circuit

Page 531

596 F.2d 531

4 Fed. R. Evid. Serv. 32

UNITED STATES of America, Appellee, v. Frank VISERTO, Jr., Richard Rocco, Joseph Solce, Garnet

Johnson, Sarah Payne, Howard Williams and Prentiss

Covington, Defendants-Appellants.

Nos. 476 to 482, Dockets 78-1281 to 78-1283, 78-1305 to 78-1308.

United States Court of Appeals,

Second Circuit.

Argued Dec. 18, 1978.

Decided March 21, 1979.

Michael E. Tigar, Washington, D. C., for defendants-appellants Viserto, Rocco and Solce.

Jules Sack, Brooklyn, N. Y., for defendant-appellant Payne.

Lawrence Hochheiser, New York City (Donald E. Nawi, New York City, of counsel), for defendant-appellant Covington.

Gary R. Sunden, New York City, for defendant-appellant Williams.

Richard I. Rosenkranz, Brooklyn, N. Y., for defendant-appellant Johnson.

Gavin W. Scotti, Asst. U. S. Atty., Eastern Dist. of New York, Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., and Mary McGowan Davis, Asst. U. S. Atty., Eastern Dist. of New York, Brooklyn, N. Y., of counsel), for appellee.

Before FEINBERG, MULLIGAN and GURFEIN, Circuit Judges.

GURFEIN, Circuit Judge:

The several appellants in this multi-defendant case appeal from judgments of conviction (Hon. Jacob Mishler, Chief Judge) entered after a jury trial for violations of the federal narcotics laws. After full consideration of the numerous arguments raised on appeal, we find them all to be without merit. Accordingly, we affirm.

I

The trial below involved ten defendants, seven of whom have appealed. ¹ Count One charged all the defendants with conspiracy to distribute and to possess with intent to distribute heroin in violation of 21 U.S.C. § 846 between January 1970 and September 1975. Counts Two and Three charged appellants Viserto, Rocco and Solce with distribution and possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Count Two charged possession of approximately 25 kilograms of heroin from January to June 1973; and Count Three alleged possession of approximately 50 kilograms of heroin from August to September 1973. Although none of the appellants directly challenges the sufficiency of the evidence, we shall summarize briefly the facts proved at trial.

The Government's case relied primarily on the testimony of two alleged co-conspirators, Charles Ford and Norman Alexander. The evidence, viewing it most favorably to the Government, showed the following. Ford testified that he met appellants Viserto and Rocco (and later Solce) in early 1970, and that he agreed to begin street distribution of heroin supplied to him by Viserto. Ford's operation proved successful. By September 1970 Ford had paid Viserto over $57,000 for heroin and was purchasing from him at a rate of 1/2 kilogram every 11/2 months at a price of $10,000 per half-kilogram. During 1971 Ford's distribution network continued to grow, so that by 1972 he was purchasing between three and eight kilograms at a time from Viserto. Ford estimated that he paid Viserto approximately $1 million for the heroin he purchased during 1972.

The business continued through June 1973, at which time Ford testified that he attempted to bring his dealings with Viserto to an end. He was persuaded to continue, however, and in August or September 1973, after several meetings with Viserto and one with Rocco and Solce, Ford agreed to purchase 50 kilograms of heroin in a single shipment, at a cost of $25,000 per kilogram. This heroin was sold by Ford's distribution ring in Brooklyn, the Bronx, Manhattan, and Queens, New York. The heroin was apparently of poor quality, and for this or other reasons Ford fell behind in his payments to his principals. This occasioned a number of meetings with Viserto and Rocco in April or May 1975 at which Ford requested that he be given more heroin to sell in order to pay off his debt. At one meeting, Rocco informed Ford that he and Viserto had ways of collecting their money. Ford testified that by mid-1975 he had paid Viserto approximately $800,000 on the 50 kilogram shipment. He still owed approximately $250,000 when he ceased dealing with Viserto, Rocco, and Solce and left the New York area. Ford testified that, at one point, his lieutenants had asked him for guns. When he relayed that request to Viserto, Viserto supplied him with ten handguns, which Ford distributed to his confederates.

Norman Alexander testified that, after some occasional work during 1970 for two of Ford's lieutenants, Jeffrey Jones and Garnet Johnson, the promise of financial gain convinced him to work at selling heroin full-time. Alexander detailed the method of operations utilized by the drug ring and recounted dealings with Jones and Johnson, another lieutenant named Parks, and appellants Covington, Williams and Payne. ² He testified that after April 1971, when Jones and Johnson were indicted for possession of heroin in the Supreme Court of Kings County, New York, he and Williams were promoted to fill their places as Ford's chief lieutenants. In that capacity Alexander often received instructions from Viserto, Rocco, or Solce regarding deliveries of heroin, and on several occasions he accompanied Ford to meetings with suppliers at which quantities of heroin were transferred.

The Government also introduced evidence to corroborate the testimony of Alexander and Ford. The admissibility of some of this evidence is challenged on appeal. (1) Against Viserto, Rocco, and Solce, the Government introduced evidence of substantial purchases for cash which they made in 1970-71. (2) Thomas Murray, an admitted drug dealer, was permitted to testify to two heroin transactions in which Viserto participated, and which occurred at about the same time as the alleged conspiracy. In addition, Police Officer Roger Garay of the New York Drug Enforcement Task Force testified to a conversation he Overheard on October 6, 1977, between Viserto and Rocco, in which Rocco reportedly referred to a "customer" who had been purchasing for the last five years at a rate of "$25,000 a key" and who was, apparently, in trouble. (3) Finally, the Government introduced certified copies of the conviction of Jones and Johnson in New York Supreme Court as evidence that they possessed heroin during the period covered by the conspiracy indictment in Count One.

II Evidence of Cash Transactions

The admission of evidence that Viserto, Rocco, and Solce made substantial purchases for cash in 1970-71 was proper. The Government urged the inference that the use of cash showed that the defendants were engaged in an illegal business the narcotics conspiracy while the appellants contended that the cash came from the proceeds of a different illegal venture gambling. We have held that proof of the availability of cash by defendants with no legitimate occupation is permitted as tending to show that it was derived from ill-gotten gains. United States v. Tramunti, 513 F.2d 1087, 1105 (2d Cir.), Cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975); United States v. Falley, 489 F.2d 33, 38 (2d Cir. 1973); United States v. Hinton, 543 F.2d 1002, 1012-13 (2d Cir.), Cert. denied, 429 U.S. 980, 97 S.Ct. 493, 50 L.Ed.2d 589 (1976), 1051, 97 S.Ct. 764, 50 L.Ed.2d 767, 1066, 97 S.Ct. 796, 50 L.Ed.2d 783, and 430 U.S. 982, 97 S.Ct. 1677, 52 L.Ed.2d 376 (1977).

Proof of cash expenditures is not proof of "other crimes" as appellants suggest. It is relevant to the crime on trial. The suggestion that the cash may have come from another illicit activity goes only to the weight, not the admissibility, of the evidence. United States v. Tramunti, supra. The relevance is not so farfetched as to make its admission an abuse of discretion by the experienced trial judge. Chief Judge Mishler charged as follows:

There is testimony that the defendants Viserto, Rocco and Solce had large amounts of cash. You may infer from the existence of large amounts of cash that the large amounts of cash were proceeds or the results of illegal activities. The Government argues that the existence of large amounts of cash in this case shows that the defendants Viserto, Rocco and Solce were dealing in narcotics.

The defendants' position is that these large amounts of cash represent proceeds from gambling activities and the money lending business.

Since there was no affirmative evidence that the cash was derived from legitimate business, there was sufficient relevance to the crime charged for the consideration of the jury.

Appellants contend that the acquittal of Solce for income-tax evasion, in the prosecution of which the same cash expenditures were in evidence, amounts to a collateral estoppel against the Government. In this case the prosecution was not bound by the outcome of the earlier prosecution, because the earlier acquittal of the income tax violation did not "necessarily" determine that the cash used was not derived from the narcotics business. United States v. King, 563 F.2d 559, 561 (2d Cir. 1977), Cert. denied,435 U.S. 918, 98 S.Ct. 1476, 55 L.Ed.2d 510 (1978); United States v. Cala,521 F.2d 605, 608 (2d Cir. 1975).

Appellants contend further that, since Solce had previously been acquitted of income-tax evasion, allegedly on the theory that the cash expenditures were from gambling activity which Solce believed to be non-taxable, the court should have admitted in evidence the verdict of acquittal. A judgment of acquittal is relevant to the legal question of whether the prosecution is barred by the constitutional doctrine of double jeopardy or of collateral estoppel. But once it is determined that these pleas in bar have been rejected, a judgment of acquittal is not usually admissible to rebut inferences that may be drawn from the evidence that was admitted. Not only does the inference appellants suggest not flow from the judgment of acquittal of Solce, but also a judgment of acquittal is hearsay. The Federal Rules of Evidence except from the operation of the hearsay rule only judgments of conviction, Rule 803(22)...