United States v. D'AMATO

• Decision Date: 14 March 1974
• Docket Number: No. 591 to 593,Dockets 73-2437 to 73-2439.,591 to 593
• Parties: UNITED STATES of America, Appellee, v. Frank D'AMATO et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

493 F.2d 359 (1974)

UNITED STATES of America, Appellee, v. Frank D'AMATO et al., Defendants-Appellants.

Nos. 591 to 593, Dockets 73-2437 to 73-2439.

United States Court of Appeals, Second Circuit.

Argued December 21, 1973.

Decided March 14, 1974.

Henry J. Boitel, New York City, for defendant-appellant Abramo.

Frank A. Lopez, Brooklyn, N. Y., for defendants-appellants D'Amato and Zito.

Bancroft Littlefield, Jr., Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., for the Southern District of New York, John D. Gordan III, Asst. U. S. Atty., on the brief), for appellee.

Before FRIENDLY, HAYS and OAKES, Circuit Judges.

OAKES, Circuit Judge:

Appellants were the subjects of a two-count indictment, count one charging a conspiracy to possess and distribute heroin in violation of 21 U.S.C. § 846, and count two charging possession and distribution of 487.27 grams of heroin on February 20, 1973, in violation of 21 U.S.C. §§ 812, 841(a) (1) & 841(b) (1) (A).¹ After a five-day jury trial, all appellants were convicted on the conspiracy count. Appellant D'Amato was also convicted on the substantive count; that count was dismissed as against appellant Abramo, and the jury failed to return a verdict on that count with respect to appellant Zito. Appellants challenge their conviction on various grounds: that the evidence was insufficient to sustain the convictions under the conspiracy count; that they were deprived of a fair trial by the trial court's refusal to compel the Government to reveal the name of a paid, registered informant of the Bureau of Narcotics and Dangerous Drugs (BNDD), as of July 1, 1973, the Federal Drug Enforcement Administration (FDEA), so that he could be called as a witness; that the introduction into evidence of deceased coconspirator Frank Burdieri's statements was reversible error because of insufficient indicia of reliability and because those statements were generally not made in furtherance of the conspiracy charged; and that the medical condition of one of the jurors, discovered during the jury's deliberation, entitled them to a new trial or, in the alternative, to a full hearing with regard to the nature of that illness and its effect on the entire proceedings. Appellant Zito further asserts that count two should have been dismissed as to him by the district court. After careful consideration of these arguments, we reject them and affirm the convictions.

I. SUFFICIENCY OF THE EVIDENCE.

A brief statement of the facts adduced at trial is required. On January 31, 1973, special agent McElroy of the BNDD, acting in an undercover capacity, went to a Manhattan bar accompanied by a paid BNDD informant, who introduced McElroy to the late Frank Burdieri. Burdieri, according to McElroy's testimony, said that he had connections through which heroin could be purchased, one such being appellant D'Amato. D'Amato, said Burdieri, was "very big" in the heroin business, having taken over the heroin operations of one Vinnie Pappa. At the end of this meeting, Burdieri agreed to contact McElroy when he had lined up some heroin.

On February 16, Burdieri informed McElroy that the latter could purchase ½ kilogram of heroin for $13,000, which included a commission of $500 for Burdieri. McElroy told Burdieri that it would take a few days to obtain the money and agreed to meet Burdieri on February 20. On that day, prior to the meeting, McElroy placed $12,900 in a plain white envelope which had been marked for later identification. McElroy, Burdieri and the informant met at noon, at which time Burdieri told McElroy that the money had to be advanced before receipt of the heroin. McElroy refused to "front" the money in this fashion, and Burdieri agreed to find out whether delivery could be effected without the "front" of the money. Later, telling McElroy that he was going to meet "his people," Burdieri exited McElroy's automobile and motioned over to the curb a black 1973 Oldsmobile driven by a person later identified as appellant Zito and carrying a passenger identified as appellant D'Amato. Burdieri spoke through the passenger window to D'Amato and Zito for five to ten minutes, returned to McElroy's automobile and told McElroy that he had just talked to "his people" and that the buy could be made within the next 30 minutes without the moneys being "fronted." Burdieri departed in a taxi to pick up the heroin and was observed some 35 minutes later walking down a sidewalk carrying a brown paper bag in a newspaper followed by the Oldsmobile containing D'Amato and Zito. Burdieri walked to a coffee shop where he met McElroy; they then went to McElroy's automobile, where Burdieri gave McElroy the bag containing slightly less than ½ kilogram of heroin in exchange for the envelope containing $12,900. Burdieri asked McElroy to drop him off at a specific place because Burdieri had "to meet his people right away to give them the money." At that place, Burdieri was dropped off and immediately picked up by the same Oldsmobile, Burdieri getting into the back seat. The Oldsmobile was followed by other FDEA agents, and they retrieved the marked envelope which was thrown from the automobile by D'Amato. Burdieri was dropped off shortly thereafter. At a meeting on February 23, again with the informant present, McElroy asked Burdieri whether he had taken the money directly to his people on February 20; Burdieri responded in the affirmative.

At a meeting on March 26, Burdieri and McElroy negotiated relative to the purchase of more heroin. Burdieri said that "his people" usually dealt only in four of five kilo quantities of heroin but would sell a half kilo for $12,500 and replied affirmatively to a question by McElroy as to whether they were "the same people" who had furnished the February 20 heroin. They met, after several telephone calls and another meeting on the afternoon of March 27, once again on March 27 at 8:10 p. m., to consummate the purchase of a kilogram in their second transaction at a price of $28,000, Burdieri saying "I've got to meet my people at 9 o'clock" that evening. After McElroy gave him the money and drove Burdieri around for a while so that he could count it, Burdieri was dropped at 23rd Street and Second Avenue. He left and then took a taxi, under considerable observation, to 36th Street and Third Avenue, where he entered a coffee shop at the southwest corner. At this point, a 1972 blue Lincoln Continental, registered to Mrs. Abramo, which had been waiting down the block, pulled up slowly along 36th Street going east toward the coffee shop and stopped on the opposite side of 36th Street from the shop. Appellant Abramo was driving the Continental, with D'Amato as his passenger. At exactly nine o'clock Abramo and D'Amato got out of the automobile. Burdieri came out, joined them, and the three of them entered the automobile.

After pulling away from the curb, the Continental, followed by a veritable cavalcade of four or five surveillance vehicles, proceeded on a course and at such speeds as to warrant, if not compel, the inference that the surveillance had been detected and that an attempt was being made to escape from it. For example, the car squared two blocks in the mid-fifties, slowing down and speeding up, drove to the vicinity of Sutton Place, suddenly speeded up again and went by way of the East River Drive and Triborough Bridge to Roosevelt Raceway where Burdieri was let out. The chase then assumed proportions of "The French Connection," for while doing 75 miles per hour on the extreme left lane of the Meadowbrook Parkway towards Queens, a last-second swerve by Abramo across three lanes to the exit for the Long Island Expressway left all but one surveillance vehicle in the lurch. The occupants of that stout automobile observed the dropping off of D'Amato at a telephone booth in Queens, from which he walked 1.3 miles to his home. After twice squaring a three or four block area near the phone booth, Abramo returned his wife's automobile to Manhattan. On March 29, Burdieri explained to McElroy that he had not returned with the package (of heroin) because "agents" had followed him to and during the meeting with "his people."

A. D'Amato and Zito. The sufficiency of the overall evidence against D'Amato and Zito, given the facts adduced at trial and condensed above, cannot be subject to serious doubt. The contention that the Government's proof with respect to the February 20 transaction was fatally deficient in that Burdieri was not under surveillance for some 35 to 45 minutes, during which time he might have picked up the 1/2 kilogram of heroin from a source other than the Zito automobile, is not in the least persuasive. The inference apparently drawn by the jury was that Burdieri did in fact obtain the brown package from D'Amato and Zito, and that inference was clearly permitted by the evidence. The jury obviously chose to disbelieve D'Amato's own version of these dealings to which he testified. Examining the record, we also conclude that independent evidence as to the February 20 transaction was sufficient, under the standards enunciated by this court, to permit the introduction of Burdieri's statements through McElroy's testimony as statements made by a coconspirator in furtherance of the conspiracy. These statements were, of course, admitted subject to connection; the mere physical activities of both D'Amato and Zito, as well as the non-hearsay testimony of FDEA agents, establish by a fair preponderance that Burdieri, D'Amato and Zito were in fact coconspirators. United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969), cert. denied, 397 U.S. 1028, 90 S.Ct. 1276, 25 L.Ed.2d 539 (1970). See United States v. Manfredi, 488 F.2d 588 at 596 (2d Cir. 1973). The question whether appellants were denied their sixth amendment rights of confrontation as a result of the admission of McElroy's testimony as to Burdieri's statements will be dealt with in Part II infra.

Appellant D'Amato's contention that the...