United States v. Pacelli

• Decision Date: 30 November 1972
• Docket Number: No. 288,72-2088.,328,Dockets 72-1709,288
• Parties: UNITED STATES of America, Appellee, v. Vincent PACELLI and Demetrios Papadakos, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

470 F.2d 67 (1972)

UNITED STATES of America, Appellee, v. Vincent PACELLI and Demetrios Papadakos, Appellants.

Nos. 288, 328, Dockets 72-1709, 72-2088.

United States Court of Appeals, Second Circuit.

Argued October 20, 1972.

Decided November 30, 1972.

Rehearing Denied January 2, 1973.

Certiorari Denied March 19, 1973.

E. Barrett Prettyman, Jr., Washington, D. C., for appellant Pacelli.

Elliot A. Taikeff, New York City, for appellant Papadakos.

John M. Walker, Jr., Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., Kenneth Feinberg and John W. Nields, Jr., Asst. U. S. Attys., of counsel), for appellee.

Before WATERMAN, SMITH and KAUFMAN, Circuit Judges.

Certiorari Denied March 19, 1973. See 93 S.Ct. 1501.

J. JOSEPH SMITH, Circuit Judge:

Appellants Vincent Pacelli and Demetrios Papadakos were found guilty after a jury trial in the United States District Court for the Southern District of New York, Milton Pollack, Judge, of conspiring to distribute narcotic controlled substances in violation of 21 U.S.C. §§ 812, 841. Pacelli was also found guilty on three substantive counts of a five-count indictment.¹

Appellants claim that Rule 4 of the Second Circuit's Rules Regarding the Prompt Disposition of Criminal Cases requires dismissal of the indictment and that admission of an out-of-court postarrest statement of a government witness who disclaimed the statement in court denied them due process and violated the federal hearsay rules. Appellant Pacelli additionally claims that the admission of a quantity of boric acid into evidence violated his Fourth Amendment rights. Appellant Papadakos claims that indictment and trial in this case put him in jeopardy for a conspiracy to which he had already pleaded guilty. For the reasons given below, we find no merit in any of these contentions, and we affirm.

On May 5, 1971, Agent John Lepore of the Bureau of Narcotics and Dangerous Drugs first met Elisa Possas, a trafficker in drugs and appellant Jimmy Papadakos' girlfriend. Possas gave Lepore cocaine to sample and procured for him a quantity of better quality. Possas assured Lepore that she could obtain pure heroin from her boyfriend and source, Papadakos. She refused, however, to introduce the agent to Papadakos until she knew him better and had completed the cocaine deal with him.

On May 20, Lepore again met Possas. She showed him a sample ½ kilo of heroin. They agreed upon a purchase price of $14,000.² That night Lepore met Possas ostensibly for a dinner date and to pay her for the heroin. When she indicated that Pacelli would not allow her to take Lepore to see him to complain about the quality of heroin sold to the agent, Lepore signaled other agents and Possas was arrested.

Warned of her rights, Possas was taken to the stationhouse where, according to the testimony of Agent Devine, she agreed to cooperate. She signed a statement which explained her rights and then gave a statement to the officers identifying Pacelli and Papadakos as her suppliers. The statement was typed by Agent Devine and represented a summary of her information. She initialed the changes she made in reading over the typed summary and signed the statement. Possas and several agents then returned to her apartment to make a call to Pacelli. The call was answered by Jalaba who spoke with Possas about a wedding dress; Possas told the agents that "wedding dress" was a code word for heroin.

Several hours later, agents went to Jalaba's apartment to arrest Pacelli. Those in the apartment initially refused to open the door upon the agents' announcement of their arrival and purpose. After a few minutes, during which time the officers heard the rattle of the venetian blinds and a toilet flushing, the door was finally opened. Pacelli was placed under arrest and warned of his rights. An agent outside the building saw a package thrown from the apartment window. He reported to the arresting officer who, after seeing the package which contained four bags of cocaine, placed Jalaba under arrest and warned her of her rights. Later that afternoon the apartment was searched for heroin pursuant to a search warrant. Among the items seized was a container of boric acid found in a shopping bag in the kitchen which contained 30-40 other tins of the acid.

Papadakos was arrested on May 27, 1971.

At trial, the government called Elisa Possas, who had pleaded guilty to Counts I, II, III and V of the indictment. She denied knowing Pacelli, denied that either Pacelli or Papadakos was her source, and repudiated the statement given to the police, claiming that she signed it thinking it to be deportation papers. She testified that while at the stationhouse she was high on drugs, that she was terribly upset and talking wildly. The government then introduced the content of the statement through the testimony of Agent Devine.

After the government's case, the court dismissed the charge against defendant Jalaba for lack of evidence. The jury returned a verdict of guilty against Pacelli on Counts I, III, IV and V, and innocent on Count II which charged distribution of cocaine to West, a government informer on May 3. Papadakos was found guilty on the conspiracy count and acquitted on substantive Count III.

The government filed its notice of readiness on November 12, nine days before the six-month period allowed under the Second Circuit's Rules Regarding the Prompt Disposition of Criminal Cases expired, requesting ten days notice of trial date. The court correctly held that the speedy trial rules were not violated, since the government had timely declared its readiness and the ten-day notice requested by the government was not binding on the court. The court could have called the parties to trial without the ten-day notice.

The admission of Possas' postarrest statement was not reversible error. Appellants make no claim that its admission violated their Sixth Amendment right to confront witnesses against them, since Possas was on the stand ready to testify. California v. Green, 399 U.S. 149, 158-159, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). Nor was there any violation of due process in admitting Possas' unsworn statement into evidence. As in Green, supra, breach of the evidentiary hearsay rule did not result in a per se violation of due process. There was substantially identical evidence in the record here to support appellants' conviction. The essence of the post-arrest statement was introduced through Agent Lepore's testimony concerning Possas' statement made to him during the conspiracy. Possas' telephone call to a number registered to Pacelli's fiancee with whom Pacelli was living, the statement of Possas to Pacelli that her man wanted the "stuff" was some evidence connecting Pacelli with the conspiracy. Evidence of the drugs seized at the time of appellant's arrest and the subsequent search of Jalaba's apartment furnished additional support for the statements made concerning Pacelli's involvement in the narcotics business.

Failure to prove infringement of his constitutional rights, however, does not of itself dispose of Pacelli's claim. Violation of the hearsay rule, if prejudicial, might also support reversal. Admission of Possas' statement without instructions to the jury limiting its use to the issue of credibility violated the hearsay rule as applied in this circuit.³

The statement might properly have been admitted for a limited purpose; Possas failed not only to help the prosecution but testified against the government's case. In the face of her testimony that she neither knew the defendant nor received drugs from him, the government could use her prior statement to impeach her as a witness. Taylor v. Baltimore & Ohio R. R., 344 F.2d 281, 283-284 (2d Cir.), cert. denied, 382 U.S. 831, 86 S.Ct. 72, 15 L.Ed.2d 75 (1965). The permissible effect was merely to cancel out the unexpected contradictory testimony made on the stand. Error therefore was made not in the admission of the statement but in the court's failure to give proper limiting instructions.

Review of the record, however, leads us to conclude that the error in this case was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 26, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Agent Lepore had already testified as to the substance of the statements incriminating the appellant made by Possas prior to Possas' arrest; these statements made in furtherance of the conspiracy could be used substantively against the defendant. The court was quite correct in thinking futile and unnecessary an attempt to erase from the jury's mental slate one of two substantially identical pictures. Moreover, the telephone call to Pacelli and the drugs found in Jalaba's apartment all strongly support conviction.⁴

Relying on United States v. Dzialak, 441 F.2d 212 (2d Cir.), cert. denied, 404 U.S. 883, 92 S.Ct. 218, 30 L.Ed.2d 165 (1971) and United States v. LaVallee, 391 F.2d 123 (2d Cir. 1968), appellant Pacelli argues that seizure of boric acid, a diluent for cocaine, under a search warrant specifying only heroin, was violative of his Fourth Amendment rights. Appellant misconceives the import of the Supreme Court's decision in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Both the majority and dissenters found that where a police officer has a warrant to search a given area for specified objects, and in the course of the search comes across some other article of incriminating character, the property is seizable under the plain-view doctrine. 403 U.S. at 465, 514-516, 91 S.Ct. 2022.

The determinative factor in all plainview seizures is "that the police officer . . . had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other...