41 Mass. App. Ct. 43 | Mass. App. Ct. | 1996
The defendant, alleged to be one of the leaders of a drug importing and distribution business operating in the Springfield-Hartford area, appeals from convictions on five indictments for trafficking in cocaine in amounts exceeding 200 grams. He was sentenced to five terms of from ten to fifteen years in State prison, four consecutive and one concurrent. Although the convictions were in 1989, changes of counsel and proceedings on a motion for a new trial and other postconviction motions (he appeals also from their denial) delayed final assembly of the record until June, 1993. Extensive briefing delayed arguments for another year.
MOTION FOR A REQUIRED FINDING
We outline the facts, by which we mean the evidence most
The Commonwealth’s evidence tended to show that the defendant was a major importer and distributor of cocaine in western Massachusetts and Connecticut. Based in Springfield, he would purchase cocaine by the kilogram, or multiple kilograms (kilos), in Florida from Joseph Fafone,
Rego testified to a second occasion in September, 1986, when he and the defendant flew down to Fort Lauderdale. Rego, joined by his wife, stayed at the Marina Bay Motel. The defendant stayed at a “luxury condominium” on the “G[alt] Ocean Mile.” The defendant purchased one kilo of cocaine and brought it to the Marina Bay Motel, where, again, it was concealed in Rego’s clothing. They flew back together to Bradley Field, drove to Williams Street in Springfield, where the defendant kept a safe house, and divided the kilo into packets for sale. The defendant had the key to the Williams Street house.
In October, 1986, Rego drove to Fort Lauderdale with his
Joseph Labriola’s testimony furnished a basis for three additional instances wherein the defendant possessed cocaine in kilo quantities in Massachusetts. In one instance Labriola accompanied the defendant to Florida to purchase kilos from Fafone. Characteristically, the defendant had Labriola physically transport the purchase — two kilos — back to New England. Labriola took it to a Rocky Hill, Connecticut, stash house. There he and the owner of the house, DiPietro, at the defendant’s direction, cut one of the kilograms and distributed it in that area. Labriola transferred the other kilo to the defendant’s nephew at an inn on the Connecticut-Massachusetts border for delivery to the defendant. On another occasion the defendant had Labriola come to a stash house on Williams Street in Springfield to assist him in cutting a kilo into retail quantities.
On November 17, 1986, the day the police executed search warrants simultaneously at the defendant’s house in Agawam, Westerman’s house in Westfield, and the stash house on Williams Street in Springfield, one of the defendant’s associates, Sonny Pepe, was able to smuggle a kilo out of the Williams Street stash house (according to what the defendant later told Labriola) just ahead of the officers’ entry. Four hundred twelve grams of cocaine were recovered by the police from Westerman’s house. This quantity also, because in excess of two hundred grams, satisfied the terms of the indictments, so long as the jury found, as they could on the evidence, that the cocaine, although at Westerman’s house, was possessed by the defendant through Westerman as his agent; for possession can be shown through evidence not only of actual, in-hand, exclusive possession, but, “in the case of constructive possession, knowledge coupled with the ability and intention to exercise dominion and control.” Commonwealth v. Rosa, 17
In the evidence described so far, without more, the judge had ample reason to deny the motion for required findings on any or all the indictments.
MATTER RELATING TO INDICTMENTS
The defendant argues that the grand jury which, on Janu
We assume, as the parties do, that a motion for extension múst be filed during the life of the grand jury.
The defendant argues that the indictments returned by the
On February 23, 1989, at the start of the trial (following selection of the jury the previous day), the Commonwealth filed a motion to amend the three indictments (87-310, 311, 312) that named dates other than November 17 (that being the date of the simultaneous executions of the search warrants) to put all the indictments in the form of “on or before November 17, 1987.” The defendant objected to the amendments, arguing that the effect would be to make the indictments less specific as to time and thus lessen the Commonwealth’s burden. The prosecutor argued that the defendant was not prejudiced because he had already been given two bills of particulars identifying with more precision the evidence on which the Commonwealth would rely to prove the different indictments. The judge allowed the motion.
There was no error. It is familiar law that an indictment
It is theoretically possible, however, to have a situation in which the time of commission is all that differentiates between two crimes, as, for example, if a defendant is alleged to have robbed the same victim twice in successive weeks. In such a case, if the grand jury, having heard evidence of both crimes, indicts the defendant for the first robbery but not the second, the Commonwealth could not'convict the defendant on proof that he committed the second robbery, see Commonwealth v. Snow, 269 Mass, at 609-610, and an amendment of the indictment to allege the date of the second robbery would accordingly be held substantial, and hence error.
In effect, the defendant alleges, this is what occurred when the dates of three of the indictments were amended in this case. In his brief, the defendant argues that the five indictments on which he was tried related to importations of cocaine in which he was assisted by Joseph Rego, that none of the indictments referred to cocaine imported through Joseph Labriola, and that the changes in the dates of the three indictments enabled the Commonwealth to convict Campiti based on evidence of transactions involving Labriola. Indeed, Campiti argues, the prosecutor in his closing argument “drop[ped] all of the three Rego indictments and [created], out of new trial material, several new Labriola indictments.”
The difficulty with this argument, and the variation offered by counsel who argued Campiti’s appeal,
Campiti was sentenced on March 6, 1989. On August 2, 1991, with the record still unassembled, new counsel appeared to represent Campiti for purposes of the appeal. The record was assembled shortly thereafter on August 30, 1991. On April 4, 1992, the defense filed a motion for a new trial, together with ancillary motions for discovery, for Commonwealth payment of an expert witness with experience in electronic surveillance, and for an evidentiary hearing on all of these motions. Appellate proceedings on the appeal from the conviction which was then pending in the Appeals Court were stayed pending decision on the new trial motion. After a delay caused in part by the illness of the trial judge, the several motions, now augmented by the filing of a supplemental motion for a new trial, with a supplemental affidavit and memorandum of law, were heard before the trial judge on November 6, 1992. This was a nonevidentiary hearing, the primary focus of which was on the question whether the grounds for the original and supplemental new trial motions were such as to warrant the defense’s requests for discovery, an expert witness, and an evidentiaiy hearing.
On April 5, 1993, the trial judge entered a memorandum of decision denying the motion for a new trial and, implicitly, the ancillary motions. Campiti appealed from the order, and a new record was assembled in June, 1993. The direct appeal and the appeal from the denial of a new trial were heard together. Most of the issues that Campiti argues in his briefs concern the denial of the new trial motion and the supporting motions. To understand these issues and the basis for the judge’s denial of the new trial, it is necessary to recount in some detail events that preceded the defendant’s trial in February, 1989.
In 1985 and early 1986, the district attorney’s office in Hampden County was investigating loansharking activities involving Campiti and one Frank Pugliano, reputed to be a leader of organized crime in Western Massachusetts. A judge of the Superior Court had authorized the installation of pen registers on various phones, but these installations were later ruled illegal, and the information that was gathered was suppressed. See Commonwealth v. Westerman, 414 Mass, at 690. In April, 1986, loansharking indictments were returned, and Campiti was arraigned on those charges. During the summer
When the loansharking indictments were called for conference on December 2, Campiti failed to appear, and a warrant was issued for his arrest. In fact, he had by then absconded to Florida, where he took up residence with his wife under an assumed name and with altered facial features for the next year and one-half. In January, 1987, a Hampden County grand jury heard several days of testimony concerning cocaine trafficking in the Springfield-Hartford area, and on January 30 returned numerous indictments charging Campiti and seventeen other defendants with drug-related offenses. Campiti, .of course, could not then be served, and he did not appear for arraignment on the drug charges until his apprehension and rendition from Florida in May of 1988.
Meanwhile, the drug charges against the other seventeen defendants were processed in the regular course. Since a major source of evidence against all the defendants was the product of the electronic surveillance of Campiti’s (and others’)
Campiti, as was mentioned above, was discovered living in Dania, Florida, in April, 1988, and was promptly arrested on a fugitive warrant. Rendition proceedings resulted in his being transported to Massachusetts on May 3, 1988, and he was arraigned on May 6, represented by Mr. Michael L. Foy. In November, Mr. Foy, who had moved for a continuance in October (this was denied), filed a motion to withdraw his appearance, representing by affidavit that his working relationship with Campiti had broken down and that Campiti had discharged him. After first denying the motion, the judge on reconsideration allowed it and on November 9 appointed the Committee for Public Counsel Services to represent Campiti. He also ordered the case to trial on January 9, 1989, specifying that there would be no continuances. As that date approached, the attorney assigned by the committee, Mr. Richard J. Rubin, moved twice for a continuance, and then for withdrawal, on the ground that he had not had enough time to prepare for trial. The first motion for a continuance was denied, but, although the docket entries do not disclose what action was taken on the second continuance motion and
On that date Mr. Rubin presented two motions on behalf of Campiti. The first was a motion to suppress all of the electronic surveillance evidence (pen register, cross-frame unit trap, and wiretap tapes). The motion was the same as that used by all the other defendants
Campiti’s new trial motion, filed more than three years after his convictions, together with supporting affidavits, a memorandum of law, and appended exhibits, ran many hundreds of pages. A principal contention of the new trial motion was that the motion to suppress the electronic surveillance evidence should have been allowed, most prominently because the affidavit in support of the September 18, 1986, warrant, as well as those that supported the derivative warrants or warrant extensions dated October 10, October 17, October 21 (for Campiti’s car), October 30, and November 15, did not show probable cause. Campiti also argued that the formal requirements for electronic surveillance (see G. L. c. 272, § 99) had been violated. The Commonwealth’s opposition focused primarily on Campiti’s ancillary motions (for
The judge denied all of Campiti’s motions, pointing out that Campiti’s trial counsel had in effect waived the right to advance reasons for suppression beyond those that the judge had already considered in connection with the other cases; that, in the hearings at that time, the interests of all the defendants had been represented by Messrs. Cardinale and Bongiomi “with zeal and outstanding legal ability”; that both counsel were “highly regarded [and] experienced” and “had extensive experience in cases involving electronic surveillance in both the [S]tate and [Federal] courts”; that “[e]xtensive hearings were conducted, witnesses and testimony from the tapes themselves were examined”; that the “represented parties’ positions were briefed” prior to the decision; and that the allowance of Campiti’s motion to preserve his rights put him in the same position as all of the codefendants and fully preserved his rights on appeal.
Apart from arguing the merits of the motion to suppress, Campiti assigns four reasons for his contention that the judge erred in refusing to allow him to reopen the issue of suppression on a motion for a new trial.
1. Right to participate. The judge erred, Campiti claims, in ruling that, because he (Campiti) was in default when the joint suppression motion was heard, he had waived his right to be present at and participate in the hearing. As Campiti points out, he was in default, not on the cocaine charges to which the motion to suppress pertained, but on the earlier loansharking charges. Because he had not been served or arraigned on the cocaine charges, he was not in default thereon. If he had been, he argues, at least his lawyer could have participated; but his lawyer had not entered an appearance on the relevant charges. See United States v. Reiter, 897 F.2d 639, 642-644 (2d Cir. 1990), on which Campiti principally relies.
We do not, however, read the judge’s decision as relying on the default
2. Inadequate preparation, denial of continuance. Campiti does not directly argue that the judge erred in denying his trial counsel’s motions for a continuance. Instead, he argues that one effect of the denial was that his trial counsel was.
Mr. Foy filed his appearance for Campiti on the drug-trafficking charges in May, 1988, ten months before the ultimate trial date. He filed an indefinite motion for a continuance which was denied in October. No reason was assigned for the continuance, but, shortly thereafter, he filed his motion to withdraw based on the breakdown of his relationship with, and his discharge by, Campiti. This was allowed, and the Committee for Public Counsel Services, appointed to represent Campiti on November 9, assigned Mr. Rubin to the case on November 14. The latter filed two motions for a continuance, one in late December and another in early January, shortly before the assigned trial date, underscored by a motion to withdraw for lack of preparedness. The January motions, so far as the docket entries show, went unacted upon, from which the defendant invites us to conclude that they were implicitly denied; but remarks in open court by the trial judge indicate that the first session judge did in fact continue the case to accommodate the defendant, and the trial did not begin for another month and a half. The record, therefore, does not bear out that Mr. Rubin was not given at least some of the additional time he sought. Contrast Commonwealth v. Cavanaugh, 371 Mass. 46, 51 (1976), in which the court, quoting from Ungar v. Sarafite, 376 U.S. 575, 589 (1964), characterized the one week allotted to defense counsel from assignment to trial as “ ‘a myopic insistence on expeditiousness in the face of a justifiable request for delay.’ ” So too, Commonwealth v. Faulkner, 418 Mass. 352, 364-365 (1994), where the defendant’s counsel was given no time to prepare a defense.
3. Inadequate preparation, ineffective assistance of counsel. We know from Mr. Rubin’s statements to the judge at trial that Mr. Foy had turned over to him a large number of records that came from the electronic surveillance of Campiti’s and Travel Majic’s telephone lines and Campiti’s car, and that Mr. Rubin had expended considerable time comparing the transcripts of intercepted conversations with the corre-
4. Failure of trial counsel to question probable cause. In his new trial motion, and in his argument on appeal, Campiti argues that various grounds that should have been addressed for suppression of the electronic surveillance evidence were not in fact put forward by Messrs. Bongiomi and Cardinale in support of the joint motion to suppress: most particularly, the absence of probable cause for the September 18, 1986, warrant, and the derivative warrants. For that reason, he argues, the failure of his own trial counsel to raise the probable cause issue constituted ineffective assistance, and it was
Probable cause is the central issue in any application for a warrant, and it is superficially implausible to imagine that the experienced counsel who presented the joint motion would have ignored it. The record before us does not substantiate that it was ignored. It was raised in the suppression motion itself (which, it will be recalled, was copied as Campiti’s own motion). The record before us in this appeal does not include the transcripts of the suppression hearing
Campiti also argues that the various warrant extensions and new warrants that were issued after September 18, 1986, were not supported by affidavits showing probable cause. It is true that nothing in the trial judge’s decision or in the decision by the Supreme Judicial Court in Westerman’s appeal is expressly addressed to the showings of probable cause in the succeeding affidavits
5. Police misconduct. There is no question that new evidence that investigating officers falsified warrant applications or Med in testimony is an appropriate ground for a new trial or, in egregious cases of misconduct or deMberate misconduct involving a serious threat of prejudice, dismissal of charges. Commonwealth v. Cinelli, 389 Mass. 197, 210 (1983). Campiti
The judge correctly concluded that Campiti’s showing of police misconduct was too insubstantial to warrant an eviden-tiary hearing. Campiti’s showing of misconduct contained two distinct elements, which are woven into many parts of his brief on appeal.
a. False statements in warrant affidavits. The affidavits supporting the warrant applications for the electronic surveillance — almost all by Trooper Higgins —- ran to nearly three hundred pages and contained information from many different sources: named witness statements; confidential informant statements; information from Connecticut and Florida police; telephone records obtained under G. L. c. 271, § 17B; pen register, trap and trace unit, and wiretap intercept information; and on-the-ground surveillance of Campiti’s and other suspected conspirators’ movements by the police. It is hardly surprising that, in the welter of information obtained from different sources, there are occasional statements that are either somewhat at variance with other statements, or, in a few instances, contradictory. One theme in the defendant’s argument consists of identifying such variations or contradictions and suggesting that one or the other or both are, in an oft repeated phrase, “deliberate false misstatements by Higgins to deliberately mislead the issuing judge in finding probable cause.” Most of these instances of contradiction are apparent on the face of the affidavits and are not properly the subject of a motion for a new trial. Some are shown by new evidence, not apparent on the face of the affidavits. An example dwelt on at length is the slight variations between the statements of Paul Bousquet (given to the police May 4, 1986) and Paul Mazur (given to the police August 13, 1986), whose information was paraphrased in Higgins’ September 18 warrant affidavit without highlighting variations. Campiti’s brief blows these out of all proportion to suggest a plan by Higgins to mislead the judge. On careful examination the variations are slight and are plausibly explained by the paucity of informa
The defendant also makes much of information from a retired telephone company employee, furnished months after the trial, indicating that he could only find in the company’s records one request by a law enforcement agency for toll call records and that it was dated November 26, 1986, after the warrant affidavits at issue (September 18 through November 15, 1986). From this the defendant argues that the affidavits’ renditions of toll calls made from certain numbers were the product of an illegal surveillance. The conclusion seems on its face far-fetched. The toll records were available to the district attorney on request, without a showing of probable cause. See G. L. c. 271, § 17B. That he would obtain surreptitiously what he could obtain for the asking is less plausible than that the record search was incomplete or that the records were destroyed. On its face, the reply to defense counsel’s inquiry indicated that some records from the period were no longer available.
The impression one takes away from pondering these and a dozen or so other alleged “false and deliberate misstatements” is that they constitute, at best, a collection of unpatterned nicks in an impressive edifice of evidence constructed by the district attorney’s investigation, hardly undermining its essential soundness. The judge was justified in concluding that they did not constitute a “substantial preliminary showing” of false statements made knowingly and intentionally, or with
b. The Mace conviction. On March 23, 1990, a little over a year after Campiti’s convictions on the cocaine charges, one of the State police officers involved in the lengthy investigation, Detective Lieutenant John Mace, was himself convicted of embezzling money from the district attorney’s office to support his gambling habit. His thefts were uncovered beginning on October 23, 1989, when a young assistant district attorney returned to the office in the evening to prepare for a trial the next day. He surprised Mace, who was about to bum files to conceal his defalcations. A struggle ensued, in which Mace, armed with a knife, attacked the assistant district attorney, who managed to trip a fire alarm.
Campiti had been convicted in March of 1989, but Mace had been Trooper Higgins’ superior and his thefts were shown to have been ongoing during the time of the Campiti prosecution.
The judge declined so to rule. He reasoned that it was pure speculation that Mace might have committed illegal acts separate from the embezzlements, which themselves had no bearing on the evidence against Campiti. He ruled that Campiti had showed “only that [Mace] acted in a separate, distinct and unconnected way committing an unlawful act that had no connection with his law enforcement activities.” Moreover, the judge continued, “[T]here is no basis upon which it can be shown that the prosecutor knew of these unlawful activities on the part of the police officer. Indeed, they were uncovered in a violent attack on an assistant district attorney that took place after the conviction of the defendant.”
This ruling was entirely appropriate. Nothing in the incident, however shocking, “casts real doubt on the justice of [Campiti’s] conviction.” Commonwealth v. Grace, 397 Mass. 303, 305 (1986). As Mace’s wrongdoing was not to be discovered for another seven months, he had no motive to
MISCELLANEOUS ISSUES
The defendant raises numerous other arguments which we have considered and determined either have no merit or represent harmless error. Some are argued in connection with
1. Instruction on reasonable doubt. Campiti contends that the judge’s instruction on reasonable doubt was constitutionally deficient. Although the judge prefaced the instruction with two sentences modeled on the now disapproved charge in Commonwealth v. Little, 384 Mass. 262, 266, n.4 (1981) (see Commonwealth v. Santos, 402 Mass. 775, 788 [1988]), concerning what proof beyond a reasonable doubt does not mean, he then proceeded (as the judge in Little did not) to read the approved charge from Commonwealth v. Webster, 5 Cush. 295, 320 (1850), in full and substantially verbatim. Moreover, the prefatory material did not include those portions of the Little charge that misstate the concept of proof beyond a reasonable doubt, and nothing in the prefatory material diluted the concept.
2. Pen register unreliability. Pointing to ten or eleven instances where there is a discrepancy between the pen register tapes and the transcripts of intercepted calls, usually involving either the time of the call or whether it was incoming or outgoing, Campiti argues that an inference must be drawn that the pen register machines were unreliable, and hence the tapes should not have been admitted in evidence, or, alternatively, that the police tampered with the evidence. The inferences are far fetched. An objection at or before trial might have resolved the discrepancies, had it been taken, but the game was not worth the candle, as, compared to the intercepted conversation themselves, and to the testimony of Regó and Labriola, the pen register tapes were of little trial significance. Contrast Commonwealth v. Neal, 392 Mass. 1 (1984), concerning breathalyzer machines, the evidence from which is typically pivotal.
3. Compliance with 18 U.S.C. § 2518(8)(a) (1982) and G. L. c. 272, § 99 M. Under these statutes a return must be made to the judge issuing an electronic intercept warrant “immediately” (§ 2518[8] [a]) or within seven days (§ 99 M) following termination of the warrant or the last renewal thereof. Commonwealth v. Westerman, 414 Mass, at 698-699. As to the consequences of delay, see and compare Commonwealth v. Vitello, 367 Mass. 224, 274-275 (1975) (short delays may be excused if there is no prejudice); United States v. Mora, 821 F.2d 860, 867 (1st Cir. 1987) (where return and sealing
4. Compliance with G. L. c. 272, §§ 99 F g, 99 I 5, and 99 O 1. Campiti argues that the Commonwealth failed to comply with the provisions of the electronic interception statute by failing to obtain in the warrants express authorization to make secret entry upon the premises of Travel Majic or into the Campiti home or its curtilage in order to install the pen registers, trap and trace units, and the wiretaps of those phones. Section 99 F g requires that a warrant application disclose that surreptitious entry will be necessary to install the intercept device, if that be the case, and § 99 I 5 requires that the resulting warrant give express authorization for the entry. In these cases the district attorney’s office informed the judge that secret entry would not be necessary, except as to the bug in Campiti’s car authorized by the October 21 warrant, which did necessitate secret entry for the installation. The difficulty with this argument is the factual predicate: Campiti makes no substantial showing that any entry into the business premises of Travel Majic or Campiti’s home was necessary to effect installation.
Section 99 O 1 requires that the defendant be furnished
5. Unauthorized intercepts. Campiti also argues that the investigators exceeded the scope of the warrant issued on October 21 authorizing the listening device in Campiti’s car. The car Campiti then drove was described in the application as a Buick Skylark. Three years later, at trial, Trooper Higgins testified that the bug was planted in an Oldsmobile Cutlass. From this Campiti now argues that the investigators exceeded the scope of the warrant. The warrant itself has not been included in the record appendix. The return on the warrant and several status reports, however, indicate that Higgins was probably mistaken in his memory. The status reports stated that the bug was installed in the Buick Skylark on October 25; that two conversations were recorded that day and one on October 26; that on October 27, Campiti returned the Buick to the rental agency and flew to Florida; that on his return he rented an Oldsmobile Cutlass; and that the Commonwealth intended to transfer the bug to that car but apparently did not get around to it. If, contrary to the status reports, the transfer was made, there was no prejudice to the defendant, because the only car tapes offered in evidence were those from October 25 and 26. Moreover, without the warrant, we do not know that it did not authorize such a transfer.
6. Other shortcomings of defendant’s trial counsel. On appeal, Campiti argues that his “trial counsel made error after
Trial counsel is faulted for having failed to obtain the transcripts of the suppression hearings and of the Westerman trial (Westerman was tried in September, 1988, five months before Campiti) for use in impeaching witnesses; but the record does not show when these transcripts became available. Trial counsel is also faulted for a failure to move for State funding of an expert witness to listen to the tapes for accuracy of the transcripts, to offer a different interpretation of their meaning from that offered by Trooper Higgins,
It is true that Campiti’s trial counsel, Mr. Rubin, was very brief in his argument on sentencing. Campiti was faced with five convictions carrying mandatory minimum sentences of ten years. Mr. Rubin urged that the sentences be made concurrent. He did not attempt to argue for leniency from such factors as employment history, stable family situation, or good works in the community. In the course of these lengthy proceedings Campiti’s activities and lifestyle had become well known to the judge, and any apologia would have been unrealistic. Unlike Commonwealth v. Lykus, 406 Mass. 135, 145-146 (1989), in which the defendant was involved in a variety of activities that should have been argued in mitigation, but very much like Commonwealth v. Mamay, 407 Mass. 412, 425 (1990), in which none were suggested, Campiti “has failed to bring to our attention any redeeming attributes which could have been raised by counsel. In the absence of a showing that a different result might have been attained, we cannot say that counsel’s performance was ineffective.” Ibid.
Stepping back from the specific allegations of errors by trial counsel, we detect no lack of preparation. Mr. Rubin showed a thorough mastery of the record and examined and cross-examined witnesses with skill and thoroughness. Realistically, any hope the defendant might have had for acquittals dissolved when the judge allowed the use of the intercepted conversations. Any doubts that the jury might have had concerning the testimony of Regó and Labriola, whose motives and character were effectively impugned by
Judgments affirmed.
Order denying motion for new trial and ancillary motions affirmed.
See Commonwealth v. Fafone, 416 Mass. 329 (1993).
See Commonwealth v. Westerman, 414 Mass. 688 (1993).
It is convenient to mention at this point two additional contentions the defendant makes without much enthusiasm in his brief: first, that the judge erred in failing to instruct the jury on the lesser included oflense of simple distribution of cocaine (i.e., without the quantification necessary for trafficking); and, second, that the judge erred in omitting to charge the jury on joint venture as a basis of criminal responsibility. As to the first, it is true that numerous instances surfaced in the evidence regarding the defendant’s and his minions’ handling of quantities of cocaine less than two hundred grams, mainly in connection with the ongoing retail sales of the cocaine cut from the kilos (a sale of two ounces by Rego to State Trooper Holmes is an example); but it was only on the kilos, or other larger quantities, that the defendant was charged in the indictments that were tried; and the judge instructed the jury that, as to any of the indictments, a guilty verdict could only be returned if the amount involved was 200 grams or more. There was no need to charge with respect to smaller quantities, because the Commonwealth neither charged the defendant with, nor relied on, the lesser quantities except to show, as a foundation, the nature of the defendant’s business. As to the judge’s refusal to charge on joint venture, this omission, by its nature, could only benefit the defendant by foreclosing from the jury’s consideration a possible additional theory of guilt. The Commonwealth’s proof tended to show that Westerman, Rego, Labriola and the others were not partners, but rather that they were agents working for the defendant; therefore it was proper for the judge to charge (as he did) only on the principles of constructive possession.
In addition to the Rego and Labriola evidence and the cocaine seized at Westerman’s house on November 17, there was evidence in the form of a tape recording of the defendant himself, speaking in his car, stating to Rego that he had given out “nine” the previous day, and the jury, on the basis of other evidence, could properly have drawn an inference that “nine” referred to nine ounces of cocaine, or 252 grams.
The assumption is presumably based on the usual meaning of “extend” (as contrasted with “renew”) and on the fact that § 1A authorizes an extension “to complete an investigation then in progress.” See In re Grand-Juries, 764 F. Supp. 692, 693-694 (D. Mass. 1991).
The other indictments, those on which the defendant was not tried, were 87-313 (trafficking in twenty-eight grams or more of cocaine “on or about” September 24, 1986); 87-314 (trafficking, 200 grams or more, “on or about” October 17, 1986); 87-315, 316, 317, 318, 319, 320, 321, 322, 323, and 324 (all for distribution of cocaine “on or before November 17, 1986”); 87-327 and 328 (all for trafficking in 200 grams or more of cocaine “on or before” November 17, 1986); 87-332, 333, 334, 335, 336, and 337 (all for conspiracy with different, named individuals to traffic in cocaine in varying amounts “on or before” October 17, 1986); and so on, in the same vein, through 87-357. These indictments and two others (325 and 331), both for conspiracy, were all pending during the trial and were dismissed at the request of the Commonwealth about two and one-half years later.
Campiti’s appellate counsel was ill at the time of argument, and Mr. Vincent Bongiomi, who had represented Westerman at his trial and was thus familiar with much of the underlying evidence, argued the appeal for
A pen register on a telephone records phone numbers dialed from that telephone (i.e., outgoing calls). A trap and trace unit records the telephone numbers of incoming calls. A wiretap enables one to eavesdrop on or record a phone conversation.
Travel Majic was associated in some way with both Frank Pugliano and Campiti, who appeared there frequently. Its telephone lines were thought to be involved in their loansharking activities. See Commonwealth v. Western an, 414 Mass, at 690.
The decision has not been included in Campiti’s record appendix. We have obtained it from the appellate records in the Westerman and Fafone appeals. See notes 1 and 2, supra. The decision lists the defendants as Joseph Albano, Frank Campiti, Jr., Gina Campiti, Virginia Campiti, Reno Cervato, Gary Cowles, Peter DiPietro, Joseph Fafone, Aaron Kashmanian, Maria Moses, John Verducci, Gary Westerman, Lawrence Wysocki, Joseph Basile, Pasquale Campiti, Earl Moses, and Ray Jones. The present defendant, Francesco Campiti, had not then been served or arraigned on the cocaine-dealing indictments pending against him. Frank Campiti, Jr., refers to his nephew, who is mentioned in several places in the record before us.
This was nearly three and one-half months after the change of counsel, and no separate contention is now made that the judge abused his discretion by failing to accord Mr. Rubin enough time to prepare Campiti’s defense.
The motion joined in by the other defendants appears in the appellate records in Commonwealth v. Westerman and Commonwealth v. Fafone. See notes 1 and 2, supra.
The judge did mention in his decision on the new trial motion that Campiti was in default in March, 1988, but this was not pivotal to his rul
Although previous counsel for Campiti who presented the new trial motion appears to have received them.
This includes Trooper Higgins’ previous affidavits of February 5, February 27, and April 11, 1986, all of which were attached to the September 18, 1986, affidavit and were expressly reaffirmed therein.
The reason was that the warrant applications had been signed by a State police officer rather than by the district attorney, as the statute requires. See G. L. c. 272, § 99 F 1.
The relevant passage of Westerman, 414 Mass, at 692, reads:
It is, of course, open to Campiti to argue in his direct appeal that the judge erred in concluding that the balance of the affidavit, after excising the invalid pen register information, showed probable cause for issuance of the warrant. But this is the very same question that was ruled on by the Supreme Judicial Court in the Westerman appeal, and an examination of the affidavit supporting issuance of the warrant does not cause us to doubt the correctness of its conclusion. This is because the information supplied by Paul Bousquet, a victim, corroborated by Paul Mazur, Bousquet’s employee, as matter of law showed probable cause that Campiti, Pugliano, and Frederic Tricinella were engaged together in loansharking and that Travel Majic and its phone lines were employed therein. The information supplied to Higgins by Robert Proulx, as related in Higgins’ September 18 affidavit, made an adequate showing that Campiti’s home phone was also used in the loansharking operation. (Omitted from the record is another, earlier affidavit concerning information from Proulx, which was one of those incorporated — see note 15, supra, in the September 18 application.)
The issue was, of course, within the scope of the joint motion to suppress, which was addressed not only to the information derived from the September 18 warrant but also to all of the electronic surveillance evidence, most of which was derived from the succeeding warrants.
In a wiretapped conversation on October 10, 1986, at 9:30 p.m., Campiti is heard cautioning an associate who is bordering on getting too explicit: Unidentified Male: “They starting to get to him . . . that guy just called me. . . .”
Campiti: “Okay talk in riddles . . . .”
One example is a wiretapped conversation (on October 11, at 7:02 p.m.) that reads, in part:
“Westerman: “Yeah, I got a guy that’s going to be calling me tomorrow (inaudible) I got, I just picked up a a guy for four a week.”
Campiti: “Man, don’t, don’t talk too much. Do you, you want to see me. Do you want me to see ya or what.”
Westerman: “Yeah, I got.”
Campiti: “What time.”
Westerman: “About 7:30.”
Campiti: “What time is it now.”
Westerman: “About 5 or 10 after.”
Campiti: “Alright the same spot.”
Westerman: “Yeah. . . .”
Campiti also argues that G. L. c. 272, § 99 F 3, was violated by a failure to annex the Bousquet and Mazur interrogation transcripts to the September 18 warrant application, but he cites no authority suggesting that suppression is mandatory,in circumstances where the original transcripts would have added nothing to the application but an additional 126 pages. A further argument is, that Higgins’ affidavit improperly bolstered Bousquet’s credibility by “concealing” the fact that the Department of Labor and Industries had brought twenty-one criminal complaints against Bousquet for failure to pay his employees their wages in the final two weeks before his roofing business collapsed. Bousquet’s inability-to meet his payroll was clear, however, from Higgins’ affidavit, and there is no showing that the criminal complaints, which predated the affidavit by several months, had not been disposed of.
The money Mace was stealing was money seized by various officers in the course of narcotics investigations, including Campiti’s.
Similar considerations govern the defendant’s suggestion that the prosecution withheld exculpatory evidence by failing to disclose a pending civil action for deprivation of civil rights naming Higgins as one of several officers who illegally gained entry to the plaintiffs premises and seized contraband therefrom. The allegations of the complaint would not properly have been disclosed to the jury and thus would not have been a factor in their discussions. Contrast Commonwealth v. Tucceri, 412 Mass, at 414-415.
Campiti draws an inference from two sources that secret entries were necessary. First, in the Fafone case (see note 1, supra), the Commonwealth, according to Campiti, stated that a delay was involved in executing some unspecified warrant because “physical installation would be necessary.” It is speculative, however, to infer that the physical installation would have to take place on private premises rather than at some other point in the telephone lines. (The same applies to Higgins testimony concerning the delay in installation.) The second is that the telephone company, in answers to interrogatories, is said to have stated that lease lines were not furnished
The conversations were in abbreviated, or coded language, as described earlier, and would sound like meaningless gibberish to a casual observer. Trooper Higgins, who had spent months collecting the tapes and coordinating the investigation, was permitted to offer his interpretation of the subject matter discussed and to tell whether numbers used in the conversations referred for example, to dollars, ounces, or kilos. There was in our view nothing improper in this procedure, without which the jury could have made little or no sense of most of the tapes. Higgins had a basis for his opinion. Hence, if Campiti is overheard saying to Fafone that he is coming to Florida to get “one,” or “two,” and the next day flies to Florida and, according to Rego or Labriola, purchases one or two kilos of cocaine, Higgins is in a position to assist the jury listening to the tape by explaining that the numbers used in the tape refer to kilos of cocaine. The defendant cites no authority for his argument that allowing Higgins so to testify was error.
The suggestion of tape tampering in Campiti’s brief refers to a process of “merging” tapes that was gone into in detail in a pretrial hearing in the Westerman case. The bug in Campiti’s car was a microphone that transmitted a signal that could be picked up and recorded in police surveillance vehicles. Because Campiti’s car was in motion and it could not be predicted where it would go, the police had three vehicles monitoring and recording
