United States v. Fantuzzi

• Decision Date: 10 July 1972
• Docket Number: 250 and 270,71-1490,No. 124,Dockets 71-1476,125,71-1489,71-1888 and 71-1613.,126,124
• Citation: 463 F.2d 683
• Parties: UNITED STATES of America, Appellee, v. Gino FANTUZZI, a/k/a Luis Jorge Vasquez Urbina, et al., Appellants.
• Court: U.S. Court of Appeals — Second Circuit

463 F.2d 683 (1972)

UNITED STATES of America, Appellee, v. Gino FANTUZZI, a/k/a Luis Jorge Vasquez Urbina, et al., Appellants.

Nos. 124, 125, 126, 250 and 270, Dockets 71-1476, 71-1489, 71-1490, 71-1888 and 71-1613.

United States Court of Appeals, Second Circuit.

Argued October 5, 1971.

Decided July 10, 1972.

Desmond J. O'Sullivan, David G. Trager, Asst. U. S. Attys., Robert A. Morse, U. S. Atty., for appellee.

Edward S. Panzer, New York City, for Fantuzzi; Howard J. Diller, New York City, for Jaramillo; Richard I. Rosenkranz, New York City, for Lopez; Gino P. Negretti, Miami, Fla., for Lieros; Edmund Allen Rosner, Nancy Rosner, Rosner & Rosner, New York City, for Christian.

Before MURRAH^*, WATERMAN and SMITH, Circuit Judges.

WATERMAN, Circuit Judge:

Appellants were convicted of havingviolated 21 U.S.C. §§ 173 and 174 (1964)¹ in that they did unlawfully, wilfully and knowingly conspire to bring cocaine into the United States and to receive, conceal, buy, and facilitate the transportation, concealment and sale of the cocaine so brought into the country knowing that the cocaine had been unlawfully imported. The judgments of conviction were entered on January 25, 1971, at the conclusion of a joint trial before Judge Orrin G. Judd, sitting without jury, in the United States District Court for the Eastern District of New York. On appeal the several defendants raise a host of claims of reversible error which include, inter alia, the propriety of a joint trial, the validity of a wiretap order, and the sufficiency of the evidence. All of the contentions, save that of James Christian that there was insufficient evidence to connect him with the conspiracy, are without merit. The issues before us are more fully discussed following an exposition of the facts proved by the Government.

The activities of the defendants below were first brought to the attention of the federal authorities on May 1, 1970 by one Carmen Estrada. At that time Carmen had been visiting her common law husband who was apparently then in federal custody and who was cooperating with the Government on other matters. The two had been meeting each other in the office of Federal Narcotics Agent Thomas J. Dugan. At some point in the spring of 1970 Carmen had given her spouse information concerning the narcotics-related activities of certain people with whom she had become closely associated and, after discussing with him whether she should inform the Government, she decided to tell what she knew to Agent Dugan. She had known Carmen Lopez (Kitty) and had frequented her apartment in Manhattan since November 1969.² In the following few months she met the other members of the alleged conspiracy: Gino Fantuzzi (Fantuzzi), Sergio Jaramillo (Lucho) and Claudine Lieros (Claudine). Fantuzzi, Lucho, Kitty and Carmen Estrada saw one another daily after the initial meeting while Claudine would appear at Kitty's apartment two or three times a week. On those occasions Claudine usually brought with her a "bag of money." Evidently the incident which prompted Carmen to report to Agent Dugan occurred during the week before May 1 when Kitty, having spent the night at the San Carlos Hotel, came back to her apartment "nervous and upset." Carmen was in the apartment and Kitty told her that she had seen a big bag of cocaine and money in Lucho's room at the San Carlos.

It was not, however, until after Carmen's initial visit to Agent Dugan that the dimensions of the conspiracy became apparent. Throughout the months of May and June Carmen related events to the narcotics agent concerning several transactions which involved large amounts of cocaine and substantial sums of money. Those events, as told by Carmen, together with the testimony of Jose Landaetta, that of a number of federal narcotics agents, and the extensive evidence obtained by wiretapping Kitty's telephone from late May until early June of 1970,³ defined for the trial court the scope of the conspiracy's activities in New York and in Texas.

The scope of that conspiracy may be depicted by a brief summary of some of its transactions during the month of May. On May 6, Lucho appeared to Carmen to be "a little upset," and Kitty explained to her that he had just received a telephone call from Dallas informing him that "one of his boys with five kilos of cocaine" had been picked up by the police. Apparently because of this arrest Lucho found it necessary to supplement his supply of cocaine, for on the next day, May 7, Carmen saw an elderly lady in Kitty's apartment, and Kitty told her that the woman had just sold Lucho three kilos of cocaine. On the next day, May 8, Fantuzzi, accompanied by Kitty, Lucho and Carmen, drove to a bar in Manhattan. Fantuzzi took a suitcase out of the trunk of the car, entered the bar with it, and returned shortly thereafter with the suitcase. He gave the suitcase to Lucho, who put it in Kitty's lap. Kitty opened it and it was full of money. Fantuzzi explained that the money resulted from a big deal they had just made for the sale of five kilos of cocaine.

After this delivery the group celebrated by joining Claudine and two of her friends at a Manhattan nightclub. Amid the sniffing of cocaine at one point in the evening, Fantuzzi referred to one of the men with Claudine as "the junky that brought in the ten kilos."

On May 10, the second government informant enters the picture. The familiarity of Jose Landaetta (Pepe) with the conspiracy originally seems to stem from his acquaintanceship with Carmen Estrada. He had asked Carmen to see if Lucho would sell him a kilo of cocaine for resale to another; Lucho agreed to do so on May 10, and the delivery of the cocaine was made on the next day by Lucho and Kitty in Kitty's apartment. The cocaine was weighed in Carmen's presence and she witnessed the payment to Lucho by Jose of $10,000, its purchase price. In yet another transaction at about this time, Lucho gave Claudine, Kitty and Carmen some cocaine to sniff and then weighed out 2 ½ kilos and gave it to Claudine, saying, "Remember, that it's two and a half kilos, and I want the money tonight." When Claudine left Kitty's apartment that day "there was a bag of money that Lucho got."

It is at this point in time, approximately one week before the Dallas transaction, that James Christian (Bruno) first appears. On the evenings of May 14th and 15th, he was at Kitty's apartment accompanied by Claudine.⁴ At these times Lucho and Claudine showed a certain degree of familiarity with him by calling him by his nicknames, LaFiera or La Bestia. In the apartment on those two evenings, as was apparently the case on most evenings, there was the drinking of liquor and the sniffing of cocaine. Upon seeing Jose Landaetta, a stranger to him at that time, Bruno asked on the first of the two evenings, "Who is that guy?" Bruno was then assured that Jose was Lucho's friend and was all right. During his visit on the following night, Jose testified that Bruno and Lucho went into the kitchen and Jose overheard Lucho say, "You have to wait because the stuff of cocaine is coming soon." Moreover, although Jose was not able to hear the amount of money being mentioned, there was also some talk about some money. About a week thereafter, according to Jose, Lucho said to Jose at Kitty's apartment that he had a big deal with Bruno and Claudine, neither of whom were present, but if there was any cocaine left over he would give it to Jose to sell.

The remainder of the story is the result of piecing together the wiretap evidence and the testimony of Carmen, Jose, and a number of narcotics agents. It seems that Lucho's "big deal" was coming up very soon inasmuch as two days after his statement to Jose he left for Dallas, Texas. Upon his arrival there on May 24, Lucho went to the Ramada Inn and, as instructed by Fantuzzi, made attempts to locate one Pedro Rojas. Lucho had difficulty communicating with the desk clerk in English, and the clerk suggested to Allen L. Caraway, a Spanish-speaking narcotics agent who had Lucho under surveillance, that he assist Lucho. This assistance was accepted by Lucho and, at Lucho's request, Caraway tried unsuccessfully to locate Rojas at several of the motels near the airport, assisted Lucho in checking into the Ramada Inn, and agreed to meet him on the next day.

Lucho and Caraway met the next day at 3 P.M. when Lucho introduced Caraway to Rojas. The agent then assisted Lucho and Rojas by placing long distance calls to Buenos Aires, Argentina, and to a Mr. Hym in Panama City, Panama. Caraway overheard Rojas say to Hym, "Why isn't the stuff here?" And after hanging up Caraway heard Rojas inform Lucho, "At nine o'clock tonight." Agent Caraway's final act of assistance was to place a call to Kitty's apartment in New York for Lucho, and from a wiretap it is learned that Lucho's purpose in calling New York was to tell Kitty to get $3,000 or $4,000 from Claudine and to bring it to him in Dallas.

Back in New York the waiting was evidently becoming difficult for Fantuzzi and Claudine for they both called the apartment, leaving messages that they had to talk to Kitty "urgently." Fantuzzi's urgent message was "with respect to a thing of Lucho's." When Kitty received the abovementioned call from Lucho in Dallas, she made immediate arrangements to go to Dallas, and, giving Carmen a collection list of people who owed Lucho money, placed Carmen in charge of the apartment. Kitty's instructions to Carmen were to tell the people on the list, should they call, to bring the money to the apartment. Upon Kitty's arrival in Dallas she telephoned Carmen and instructed her to contact Claudine and tell Claudine that "our money" is to be handed to Fantuzzi.

On May 27 Rojas and Lucho met one Manuel Villaseca at the Dallas-Love airport upon Villaseca's arrival from Panama City, Panama, and then went directly to the Ramada Inn where Kitty was staying. All four were arrested when they left the Inn at 1:30 P.M. There was,...