U.S. v. Zackson

• Decision Date: 04 October 1993
• Docket Number: No. 891,D,891
• Citation: 6 F.3d 911
• Parties: UNITED STATES of America, Appellee, v. Steven B. ZACKSON, Defendant-Appellant. ocket 92-1525.
• Court: U.S. Court of Appeals — Second Circuit

Page 911

6 F.3d 911

62 USLW 2295

UNITED STATES of America, Appellee, v. Steven B. ZACKSON, Defendant-Appellant.

No. 891, Docket 92-1525.

United States Court of Appeals, Second Circuit.

Argued March 5, 1993.

Decided Oct. 4, 1993.

Barry Levin, Garden City, NY (Kelly Foley, Gerst, Konigsberg & Levin, of counsel), for defendant-appellant.

Geoffrey S. Mearns, Asst. U.S. Atty., Brooklyn, NY (Mary Jo White, U.S. Atty., E.D.N.Y. and Susan Corkery, Asst. U.S. Atty., of counsel), for appellee.

Before: NEWMAN, ^* PIERCE and JACOBS, Circuit Judges.

PIERCE, Circuit Judge:

Steven B. Zackson appeals from a judgment of conviction and sentence entered in the United States District Court for the Eastern District of New York after a jury trial before Eugene H. Nickerson, Judge. Zackson was convicted of conspiring to distribute and to possess with intent to distribute marijuana and cocaine, each in violation of 21 U.S.C. Sec. 846, et al., and possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1), et al. He presently is incarcerated and is serving a prison term of 151 months; he also was sentenced to a five-year term of supervised release, a fine of $50,000, and a special assessment of $150.

We affirm the judgment of conviction and sentence but remand for an adequate statement of reasons for the sentence.

BACKGROUND

On January 14, 1991, the government filed a three-count superseding indictment in the United States District Court for the Eastern District of New York. Count One of the indictment charged Zackson, Peter Lagatta and Henry Acierno, with conspiring, between May 1987 and March 7, 1989, to distribute marijuana and to possess it with intent to distribute it; Count Two charged Zackson and Lagatta with conspiring, between June 1990 and December 19, 1990, to distribute cocaine and to possess it with intent to distribute it; and Count Three charged that between June 1990 and December 19, 1990, Zackson and Lagatta possessed cocaine with intent to distribute it--all in violation of federal laws.

Zackson was tried before a jury on all three counts and was found guilty after the presentation of evidence from which the account that follows can be drawn.

I. The Marijuana Conspiracy

In March of 1989, Angelo Grieco, a former member of a marijuana distribution organization, was contacted by his former associate, Peter Lagatta. Lagatta asked Grieco if he would "hold on to some luggage" for Lagatta. Grieco testified that he understood this to mean that Lagatta was asking him to hold some marijuana. Grieco agreed to hold the marijuana and Lagatta informed him that a friend would contact him. Thereafter, Zackson contacted Grieco who recalled first meeting him in the summer of 1987 in connection with earlier marijuana distribution activities.

On March 6, 1989, Zackson brought three bales of marijuana to Grieco's home. Grieco and Zackson then went to Zackson's condominium where five more bales of marijuana were retrieved and brought to Grieco's apartment. Grieco testified that after Zackson left his apartment, he contacted the Drug Enforcement Agency (the "DEA"). Shortly thereafter, a number of DEA agents arrived at Grieco's apartment, including Detective Raymond Tkacz, who was a member of a DEA Task Force. At the request of DEA agents, Grieco telephoned Lagatta--Grieco and Lagatta had three brief phone conversations, which were tape-recorded by Tkacz with Grieco's consent. These tapes were played for the jury. Grieco testified that during these conversations he asked Lagatta to remove the marijuana from his apartment. The following day, March 7, 1989, Lagatta and Zackson arrived at Grieco's apartment and the three of them loaded the bales of marijuana into two vehicles, one driven by Zackson and the other by Lagatta. Detective Tkacz testified that Lagatta and Zackson drove away, but were arrested within a few blocks of Grieco's apartment by DEA agents.

According to DEA Agent Nicholas Alleva, Zackson was taken to the DEA office in Westchester County, where he was processed, and later he was arraigned on a complaint in the United States District Court for the Southern District of New York--the complaint was later dismissed without prejudice. Meanwhile, Lagatta was also taken to the Westchester County DEA office and processed, but criminal proceedings were deferred because he agreed to assist Agent Alleva in attempting to locate Constabile "Gus" Farace, who was being sought in connection with the murder of DEA Agent Everett Hatcher. Agent Alleva informed Lagatta that if he cooperated fully with the government and promised not to commit any crimes in the future, the DEA would speak with the prosecutor about "holding a judicial proceeding against him in abeyance." Between March 1989 and November 1989, Lagatta worked under Agent Alleva's supervision "gathering intelligience [sic] and collecting evidence" in an effort to locate Farace.

On April 20, 1990, Zackson was indicted by a grand jury in the Eastern District of New York for his involvement in the subject marijuana distribution conspiracy and he was arrested by Detective Tkacz shortly thereafter. En route to his arraignment, Tkacz explained the charges to Zackson and informed him that if he wished to cooperate with the government, it was possible that the charges against him "could be lessened." Zackson responded that he wanted to cooperate but Detective Tkacz testified at the trial that thereafter he met with Zackson on two occasions between May and June 1990. During these meetings, Zackson revealed that he had been approached by a Colombian man named "Julian" about purchasing multi-kilogram quantities of cocaine. Zackson agreed to attempt to introduce Tkacz to Julian as a potential buyer of cocaine. Zackson subsequently informed Tkacz that he was unable to contact Julian despite several attempts to page him on his beeper. In addition to informing Tkacz about Julian during this period of cooperation, Zackson acknowledged his involvement in the subject marijuana scheme. Later, Zackson discontinued his cooperation with the government.

that he feared for his and his family's safety. He also stated that he did not want his attorney to know that he was cooperating with the government. Zackson, Detective Tkacz, John Gleeson and Geoffrey Mearns--the latter two, Assistant United States Attorneys ("AUSA")--appeared before Judge Reena Raggi of the Eastern District of New York on May 3, 1990 to discuss Zackson's desire to cooperate without the benefit of counsel. After being informed by Judge Raggi of his rights and the risks of speaking to government agents without the assistance of counsel, Zackson, nevertheless, agreed to cooperate with the government without being represented by counsel. Judge Raggi then sealed the record of those proceedings.

On June 26, 1990, in an ex parte proceeding before Judge Raggi, AUSAs Gleeson and Mearns informed the court of Zackson's decision to cease cooperating. The next day, on June 27, 1990, in a proceeding which was attended by the government and Zackson's counsel, Judge Raggi unsealed the transcripts of that proceeding, the ex parte proceeding of June 26, 1990, and the one that occurred on May 3, 1990. Thereafter, the government provided Zackson's counsel with copies of both transcripts, and informed him of the substance of the statements Zackson had made to Detective Tkacz.

II. The Cocaine Conspiracy

One of the government's principal witnesses against Zackson with respect to the cocaine charges was Alexander Guzman-Tabora. Guzman-Tabora testified at Zackson's trial that in September, 1990 he began to work for Julian Aterortua ("Julian") delivering cocaine. Julian, he stated, informed him that he had delivered five kilograms of cocaine to Zackson during the summer of 1990 and Zackson had not yet paid him the $150,000 he owed for the drugs. Guzman-Tabora testified that he met with Zackson in October 1990 to "pressure" him to pay Julian the money he owed. Accompanied by Julian, he met with Zackson on several occasions during October and November of 1990 concerning the debt and, on at least one occasion, he testified, Zackson was accompanied by Lagatta. Lagatta met with Julian and Guzman-Tabora alone at least once and spoke with them by phone about the cocaine deal. At the time, according to Agent Alleva, Lagatta was still a DEA confidential informant, although he never revealed the cocaine transaction with Julian to Agent Alleva or any other DEA representative.

Since he continued to be unsuccessful in collecting the money he sought from Zackson, Julian instructed Guzman-Tabora to kidnap Zackson. After Guzman-Tabora responded that kidnapping Zackson did not appear feasible, Julian gave orders to kidnap Lagatta instead, and Lagatta was kidnapped by Guzman-Tabora and two accomplices on December 17, 1990. Thereafter, Guzman-Tabora informed Zackson that, in order to secure Lagatta's release, he had to pay Julian $200,000. After two days, Zackson had only managed to gather $10,000 and the deed to Lagatta's home. Unable to raise any more money, and fearing for Lagatta's safety, Zackson contacted his attorney, Michael S. Washor, who, in turn, informed the Federal Bureau of Investigation ("FBI") of the kidnapping. On December 20, 1990, the FBI rescued Lagatta unharmed. Later that day, both Lagatta and Zackson were arrested for their participation in the cocaine transaction, which occurred during the summer of 1990.

III. Trial Proceedings

The April 1990 indictment against Zackson on the marijuana charge was superseded by the subject three-count indictment and he Washor, Zackson's attorney, opposed the severance and asked for an opportunity to address the severance issue in writing. Judge Nickerson agreed and reserved decision. In a letter dated January 23, 1991, Washor renewed his opposition to Judge Nickerson's severance proposal. Washor argued that "Zackson's defenses [were] inexplicably [sic] interwoven with ...