United States v. Calabro
| Decision Date | 21 September 1971 |
| Docket Number | Dockets 71-1390,1080 and 1081,No. 1071,71-1412 and 71-1430.,1071 |
| Parties | UNITED STATES of America, Appellee, v. Anthony CALABRO et al., Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
Arnold E. Wallach, New York City, for appellant Calabro.
Ivan S. Fisher, New York City (Albert J. Krieger, New York City, on the brief), for appellant Puga.
Neal J. Hurwitz, New York City, for appellant Villanueva.
Walter J. Higgins, Jr., Asst. U. S. Atty., New York City (Whitney North Seymour, Jr., U. S. Atty., Peter F. Rient and Jay S. Horowitz, Asst. U. S. Attys., New York City, on the brief), for appellee.
Before FEINBERG, MULLIGAN and TIMBERS, Circuit Judges.
Appellants Calabro, Puga and Villanueva appeal from judgments of conviction entered upon a jury verdict after a four day trial in the Southern District of New York, Constance Baker Motley, District Judge, finding Calabro and Villanueva guilty on one count of concealing, transporting and selling heroin, in violation of the federal narcotics laws, 21 U.S.C. §§ 173 and 174 (1964),1 and finding all three appellants guilty on one count of conspiring to violate the same statutes. Calabro and Villanueva were sentenced to 12 year and 7 year concurrent terms, respectively.2 Puga was sentenced to a 5 year term on the conspiracy count. Finding no error, we affirm.
An extensive undercover investigation by the Federal Bureau of Narcotics culminated in a two-count indictment returned November 20, 1970. Upon the uncontroverted testimony of the agents involved, the jury could have found as follows.
On July 17, 1970, Agent Scrocca, acting in an undercover capacity, met in Miami, Florida with Ada Villanueva for the purpose of infiltrating a narcotics ring. During their discussion of the narcotics trade, Villanueva asked Scrocca if he knew some of the people she had done business with in New York, including "Blackie from La Barraca." When Scrocca inquired which "Blackie" Villanueva meant, she further identified him as Blackie Calabro from Mulberry Street, her boyfriend and business associate.
On the evening of August 3, Agent Scrocca and fellow agents Boccia and Ellin, all acting in an undercover capacity, entered the La Barraca Restaurant located on West 51st Street near Eighth Avenue in Manhattan. Appellant Calabro was standing at the bar. Appellants Puga and Villanueva were seated together at a table in the dining area. The three agents joined the latter pair. Scrocca introduced Boccia and Ellin to them as receivers of narcotics who would handle Scrocca's transactions in New York. At one point in the conversation, Boccia went to the bar where he heard Calabro ask an unidentified male who the people with Villanueva were.
On the evening of August 4, Scrocca and Boccia again met Puga and Villanueva at the La Barraca. After a brief conversation, Villanueva explained that as Puga was going to Miami she had to drive him to the airport, but she would return later to discuss business. Villanueva, however, did not return to the La Barraca that evening.
Two nights later, on August 6, Scrocca and Boccia again went to the La Barraca. They saw Villanueva enter the restaurant and leave soon thereafter. They also saw Calabro standing at the bar. On three separate occasions during the evening, Calabro walked from the bar and stood within five feet of their table, staring at them. Later in the evening, Boccia was followed to the men's room in the rear of the restaurant by Calabro and an unidentified male. While Boccia was standing at the urinal, Calabro and his companion passed behind him; while doing so, one of them frisked the area of Boccia's waist and grasped his sidearm.
On August 11, the agents' undercover work resulted in Villanueva's offer to purchase heroin. That afternoon Boccia met Villanueva in a restaurant less than a block from the La Barraca. She offered Boccia three kilograms of heroin at $18,000 per kilogram. Boccia agreed to buy one kilogram as a sample. He asked if Villanueva had the heroin with her. Villanueva said her "Italian boy-friend from Mulberry Street" would deliver it to her. She instructed Boccia to meet her at the La Barraca that evening at 8:00 P.M. for delivery of the heroin.
At approximately 7:45 P.M. that evening, Calabro and Villanueva engaged in a conversation on a street corner next to the La Barraca. Shortly thereafter they entered the La Barraca together. Within a few minutes Boccia arrived in a car and met with Villanueva on the sidewalk. Calabro watched them through a window of the La Barraca. Villanueva told Boccia everything was ready. Boccia drove off to obtain the money. Upon his return, Villanueva entered Boccia's car and directed him to drive one block to her mother's apartment. At that location, in return for $18,000 in cash, Villanueva gave Boccia approximately one kilogram of heroin.
The next evening, August 12, Boccia returned to the La Barraca where he saw Villanueva and Calabro seated together at the bar. After Villanueva joined the agent at a table, Boccia stated that he was pleased with the quality of the heroin and would want to purchase more in the near future. Villanueva said that Puga was bringing a load of cocaine from Miami which would be available shortly. Villanueva also told Boccia that she regularly received shipments of ten to twelve kilograms of heroin from Turkey. Boccia expressed an interest in the Turkish product rather than the lower quality French product. Villanueva explained that the heroin sold the night before in fact was from Germany and had been smuggled into the United States via France and Spain.
On August 19, Boccia returned to the La Barraca. Calabro and Villanueva were seated together at one end of the bar. Puga was seated at the other end. Villanueva approached Boccia and inquired if he was interested in doing more business. Boccia responded in the negative. Villanueva rejoined Calabro. Boccia then engaged Puga in conversation. Puga inquired if Boccia were satisfied with the product Villanueva had sold to him, and stated that he and Villanueva had more heroin available. Before Boccia left the La Barraca, Puga told Boccia to see him and Villanueva when he was ready to transact more business.
Boccia next met Puga and Villanueva on the afternoon of September 15 at a restaurant near the La Barraca. Boccia told them he needed three kilograms of heroin by noon the next day. Puga replied that heroin was scarce and that Boccia's order would be difficult to fill. Villanueva stated that they had two sources, one an Italian and the other a Latin, whom she could try. Boccia agreed to call Villanueva at midnight at the La Barraca.
At about 9:30 P.M. that evening, Calabro entered the La Barraca, followed half an hour later by Puga and Villanueva. Calabro left the La Barraca at about 10:30 P.M. At midnight Boccia telephoned the La Barraca. Villanueva, who was seated at a table with Puga, answered the phone and told Boccia that she had "one fine French watch," meaning one kilogram of heroin, which could be had for $18,000. A meeting was arranged for the following evening at the restaurant near the La Barraca.
On the evening of September 16, Calabro and Villanueva were seen walking together toward the La Barraca. Shortly thereafter Villanueva entered the restaurant near the La Barraca where she met Boccia. After telling Boccia that the merchandise would not be available until 11:00 P.M., she departed in the direction of the La Barraca. Ten minutes later she returned to Boccia and told him that the transfer could be made at 8:30 P.M. if he were available. Boccia agreed to pick her up in front of her apartment at 8:30.
When Boccia arrived at Villanueva's apartment that evening, Puga and Villanueva entered Boccia's car. Villanueva told Boccia that everything was ready, but that she would have to pick up the merchandise. She directed Boccia to drop her at the La Barraca and to drive with Puga to 103rd Street and West End Avenue. Boccia followed her instructions. While waiting for Villanueva at 103rd Street, Boccia expressed the hope that the merchandise would be as good as the last time. Puga assured him that it would be.
Villanueva arrived at 103rd Street at about 9:30 P.M. She told Boccia that her source wanted the cash in advance of delivery. Boccia expressed displeasure and preference for the source of the prior sale. Villanueva said that Calabro, the source of the prior sale, always gave her the heroin on consignment, but that the new source would not. She also told Boccia that she had asked Calabro for heroin but that he had none available. When they could not agree on terms, Boccia left Puga and Villanueva, saying he would wait until Calabro had more merchandise.
Calabro's appeal raises the difficult question of the sufficiency of non-hearsay evidence to warrant admission of co-conspirators' hearsay declarations.
The trial court ruled that there was sufficient evidence, independent of Villanueva's hearsay utterances, to infer that Calabro participated in the alleged conspiracy,3 and instructed the jury that Villanueva's statements could be considered as evidence against Calabro. He challenges the trial court's ruling on the sufficiency of the independent, non-hearsay evidence. We hold that the trial court ruled correctly.
Although it is clear that hearsay declarations of a conspirator are admissible against his co-conspirators if made in the course of and in furtherance of the conspiracy, Lutwak v. United States, 344 U.S. 604, 617 (1953); Clune v. United States, 159 U.S. 590, 593 (1895), it likewise is clear that there must be independent evidence establishing a defendant's participation in the conspiracy before such declarations are admissible against him. Glasser v. United States, 315 U.S. 60, 74 (1942). Moreover, it is well settled in this Circuit that the trial judge must make this...
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