United States v. Cirillo

• Decision Date: 07 May 1974
• Docket Number: 688,677,73-2644,73-2796,73-2555,763 and 796,762,73-2645 and 73-2635.,684,Dockets 73-2426,73-2554,730,No. 676,73-2615,676
• Citation: 499 F.2d 872
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alphonse CIRILLO et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

499 F.2d 872 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Alphonse CIRILLO et al., Defendants-Appellants.

Nos. 676, 677, 684, 688, 730, 762, 763 and 796, Dockets 73-2426, 73-2615, 73-2554, 73-2796, 73-2555, 73-2644, 73-2645 and 73-2635.

United States Court of Appeals, Second Circuit.

Argued February 14, 1974.

Decided May 7, 1974.

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Harold Borg, Kew Gardens, N. Y. (Arnold E. Wallach, New York City, of counsel), for appellant Cirillo.

Stephen R. Laifer, Brooklyn, N. Y., for appellant Murphy.

Irving Sable, Far Rockaway, N. Y., for appellants Sorrentino and Cesare.

Jacob P. Lefkowitz, New York City, for appellant Venetucci.

Paul E. Warburgh, Jr., New York City (Kassner & Detsky, New York City, of counsel), for appellant Gutierrez.

Charles T. McKinney, New York City, for appellant Lilienthal.

Julius M. Wasserstein, Brooklyn, N. Y., for appellant Gaber.

Guy L. Heinemann, Asst. U. S. Atty. (Edward John Boyd, V, U. S. Atty. E. D. New York, Raymond J. Dearie, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appellee.

Before MEDINA, MANSFIELD and OAKES, Circuit Judges.

MANSFIELD, Circuit Judge:

On this appeal we encounter a narcotic distribution conspiracy of the familiar "chain type" involving sophisticated suppliers, middlemen and customers who dealt in substantial amounts of heroin, conducting their business through use of coded narcotics trade language or jargon in which innocent phrases were used to describe heroin, prices and parties. After a jury trial before Judge Orrin G Judd of the Eastern District of New York all appellants were found guilty of conspiracy to distribute heroin in violation of 21 U.S.C. § 846 (Count 9). Additionally appellants were convicted on other counts as follows:

                Counts Appellants1
                1:  (possession with intent to                   Cirillo and Murphy
                    distribute 1 kilogram of
                    heroin)
                2:  (distribution of the same                    Cirillo, Murphy and
                    kilogram of heroin)                            Sorrentino
                3 and 4: (possession of the                      Venetucci
                    same kilogram with intent
                    to distribute and attempted
                    distribution)
                5 and 6: (possession and distribution            Lilienthal
                    of ½ kilogram of
                    heroin)
                7:  (attempted distribution of the               Cirillo, Murphy and
                    ½ kilogram)                                      Sorrentino
                8:  (attempt to possess the ½                  Cesare
                    kilogram)
                

Finding insufficient evidence of guilt, we reverse the convictions of appellants Gutierrez and Gaber. The convictions of all the other appellants are affirmed.

The government's proof consisted largely of tapes and transcripts of some 40 intercepted conversations occurring over the home telephones of Cirillo and Sorrentino, supplemented by testimony of surveilling agents and a video tape of a meeting of four of the conspirators. Initial authorization for the wiretap of Cirillo's phone was given in a warrant order issued on October 31, 1972, by Justice J. Irwin Shapiro of the New York State Supreme Court, Appellate Division, pursuant to New York's eaves-dropping statute, N.Y.C.P.L. § 700.05 et seq., after he found on the basis of affidavits submitted by the Kings County District Attorney and a state police detective, that there was probable cause to believe Cirillo was committing narcotics offenses and that evidence of these offenses could be obtained by wiretapping Cirillo's phone. This warrant was extended for four additional 30-day periods by Justice Rabin of the Appellate Division.

Initial authorization for the wiretap of Sorrentino's phone was given in a warrant issued on January 25, 1973, pursuant to the New York statute by Justice Irwin Brownstein of the New York State Supreme Court, which was extended for two additional 30-day periods.

The evidence, viewed in the light most favorable to the government, reveals the following: At 7:00 A.M. on January 18, 1973, Cirillo called Sorrentino and said he wanted to see Sorrentino and "Bobby" (Venetucci). Later that morning Sorrentino and Venetucci spent two hours at Cirillo's home in Little Neck, New York. Thereafter Sorrentino phoned Cirillo to ask whether he should "take the kid out of school" at around 4:00 P.M., to which Cirillo replied, "No, its figured most likely, like the kids going to school tonight." James Garcia, a detective with the New York City Police Department, testified, on the basis of his extensive experience in narcotics investigations, that he would interpret the "kids going to school" language as narcotics coded vocabulary for delivering narcotics.

As the result of a further phone call Cirillo, carrying a rolled up brown paper bag, a type of unobstrusive container frequently used for transportation of narcotics, and accompanied by Murphy, met at 10:30 P.M. with Sorrentino at the apartment of the latter's mother on West 8th Street where they were joined by Venetucci, who arrived at about 11:30 P.M. and left 15 minutes later. Venetucci drove directly to 120 Bay 14th Street in Brooklyn where he met appellant Frank Gutierrez on the street. Both then spent two hours in Gutierrez's apartment, following which Venetucci returned to West 8th Street and Avenue U, where he was seen arguing on the street with Sorrentino, Cirillo, and Murphy.

On the next day, January 19, a series of phone conversations between Cirillo and Sorrentino (during one of which "Bobby" Venetucci was present on Sorrentino's end of the wire) revealed that the argument had arisen because of Venetucci's failure to come up with the money for the narcotics that had been delivered to him the night before by Cirillo, Murphy, and Sorrentino. Venetucci had been unable to locate his "partner" who was supposed to make payment. Sorrentino reported to Cirillo that although Venetucci called from "Bay 14th" (Gutierrez's address), the money had not been received. Sorrentino assured Cirillo that he had told "Bobby" (Venetucci) that Cirillo would not take the "thing" back but wanted the agreed price of $30,000. (At that time the market price for a kilogram of 50% pure heroin ranged from $25,000 to $38,000.) In an effort to obtain the purchase price, a meeting was held that night between Cirillo, Murphy, and Sorrentino, followed by a Sorrentino-Venetucci meeting. The upshot was that while "Bobby" (Venetucci) was finally able to reach his partner "Frankie" by telephone, neither "Bobby" nor "Frankie" could produce the money. Meanwhile Sorrentino expressed concern that the "stuff" (narcotics) was still in Venetucci's house.

The efforts to obtain payment of the $30,000 price for the narcotics continued with Cirillo, the supplier, putting pressure on Sorrentino, the middleman, and the latter in turn pressing Venetucci, who supposedly was looking to his "partner" for payment. On the afternoon of January 22, Venetucci went to Grace's Discount Dress Shop on 11th Avenue in Brooklyn, owned by the wife of Gutierrez, and shortly thereafter Gutierrez entered. Two hours later Venetucci left the shop but returned within a half hour when, before reentering, he walked up and down the opposite side of the street in an apparent effort to determine whether he was being followed. Venetucci finally left the shop at 6:00 P.M. and proceeded in his automobile to Staten Island, driving evasively when he spotted surveillance agents behind him.

By January 25, still unpaid, Cirillo and Sorrentino, who were beginning to lose their patience, resolved to give "Bobby" (Venetucci) a "good workout" and then get the "dress off him" (i. e., secure the return of the narcotics). In this they succeeded, for on the evening of January 26 Sorrentino, Murphy, and Cirillo, who was carrying a brown paper bag, all entered Sorrentino's house in Brooklyn. Three days later Venetucci was told by Sorrentino that "they got rid of it for 22" (i. e., sold the narcotics for $22,000), leaving an $8,000 balance, which Venetucci and his partner were expected to pay. Negotiations regarding the $8,000 deficit followed, with Venetucci trying to persuade Cirillo and the "other guy" to absorb half the loss on the understanding that Sorrentino and Venetucci would make up the other half. Cirillo, however, kept insisting that Sorrentino, Venetucci and "Frankie" pay the entire $8,000.

Discouraged but apparently not resolved to abandon their business relationship, Sorrentino and Cirillo, on March 9, 1973, began discussing another transaction. At 5:45 P.M. on that date Sorrentino advised Cirillo by phone that he had "met some nice people" who thought the "figure" for the "dresses" (i. e., the price for narcotics offered by Cirillo and Sorrentino) was "very good." Several days later, on March 14th, Sorrentino called Cirillo and ordered another "dress" which, according to Detective Garcia, meant another order of narcotics. At this point Cesare, the prospective purchaser, appeared on the scene and asked Sorrentino for delivery of "a sample of that dress." Upon receiving this message from Sorrentino, Cirillo went into action. He called Lilienthal's home and, upon learning that "Ted" (Lilienthal) was not expected home until 7:00 P.M., left a message instructing Ted to bring him back "those income tax forms, the one ... half filled out ..." (i. e., a half-kilo of heroin). With a view to making the purchase Cesare, accompanied by Gaber, proceeded to the White Castle parking lot near Sorrentino's home where they waited in vain for 3½ hours for the narcotics to be supplied by Lilienthal and departed only after Sorrentino and Cirillo were unable to locate the supplier (Lilienthal).

On the following day, March 15th, Cirillo reached Lilienthal by phone and in response to his request for the "paper that I half filled out" (half-kilo of narcotics) Lilienthal indicated that he had it. Shortly thereafter Lilienthal visited Cirillo's residence, apparently for the purpose of delivering the half-kilo. Cirillo then called Sorrentino...