United States v. Angelo Bertolotti

many, all, although not of the defend- MOORE, Before FRIENDLY and ants with substantive posses- narcotics VAN GRAAFEILAND, Judges. Circuit sion and distribution violations. Appel- lant DeLuca was charged in Count Two with distribution and possession of GRAAFEILAND, Judge: Circuit VAN Bertolotti, James Angelo Appellants kilograms twelve of cocaine. Appellant Ray Camperlingo, Joseph Capotorto, Guerra was charged in Count Four with DeLuca, James Joseph Thompson, mond distribution possession and of one kilo- Guerra, convicted of Louis Angley gram of cocaine. The remaining five ap- federal narcot violate the to conspiracy pellants were not named in any of the 846) following a (21 § ics laws U.S.C. substantive counts. trial in the District Court four-week defendants, including the central York, Six of New District the Southern for alleged conspiracy, Albert figures Be these convictions. reversal of seek Coralluzzo, Ernest entered Rossi and failure to cause of Government’s to trial. other de- guilty pleas prior Six in United States our admonition heed for trial. fendants were “unavailable” F.2d 1323 Sperling, proceeded seventeen to remaining denied, 420 Judge Robert Carter and a trial before that it cease com (1975), 43 L.Ed.2d jury. The results were disastrous to the conspiracy, alleged single in an bining single defendant connected,1 Government. Not all, if at loosely, criminal acts eight was convicted on appellants’ to accede to compelled we are sub- One, On Count stantive counts.2 request. Judge Sperling, Timbers issued forth a government 1. mon for bring indict- warning Attorney’s against clear to the United States ments a dozen or more defendants office: many endeavor to force as of them possible to trial proceeding the same frequency on In view of the with which the claim conspiracy when the single conspiracy multiple conspiracies vs. criminal reasonably acts could be more re- being appeals claim is raised on before this garded conspiracies, as two or perhaps more court, we take this occa- [citations omitted] top. with a link at the 506 F.2d at 1340-41. government respect to caution the sion prosecutions may future it be unnec- essarily exposing itself to reversal contin- Appellant acquitted DeLuca was under uing the indictment format in this reflected Appellant acquit- Two Count Guerra was case. . . . has become all too com- [I]t ted under Four. Count Kilogram Quartet’s Two B) The Florida count, conspiracy jury acquitted (May September 1973 to Purchase eight agree defendants and failed 1973) Only appellants two others. seven June Rossi guilty May early on this count. In late found in New York with and Coralluzzo met number of trans- large Because visitors, previously men- two Florida to be alleged by actions Raymond one Capotorto and tioned it single conspiracy, is difficult part of Capotorto, speaking him- Thompson. the facts. We succinctly summarize as well as two other Thompson, self however, by describing in chrono- begin, at present not Florida associates order the four events about logical Joseph Bertolotti and Angelo gathering, at produced which de- quartet’s Camperlingo, indicated how, for later the if leaving question cocaine. kilogram purchase sire all, they may together. be tied that his representation Upon Capotorto’s $17,000 and between group had raised narcotics, Rossi $19,000 these pay to for the A) requesting Guerra telephoned The Louis Rip-off Matthews-Harrison following day, The (Spring 1973) delivery of one kilo. not one but two bearing, arrived Guerra cocaine, one pure one and dilut- kilos of the four each-of is true of As Rossi, persuasion a little from With ed.4 described, Albert Rossi hereinafter deals to Thompson agreed dou- Capotorto and principal were the Ernest Coralluzzo and $19,- $17,000(or purchase. their ble the In in this transaction. participants Rossi and 000) immediately paid to was and James Ca- these two spring of and pure kilogram, for the Coralluzzo Matthews Frank negotiated with potorto for the diluted kilo- payments additional the sale to for Harrison and Harold were gram promised. kilograms of her- fifty thirty to of them June, Rossi and Coralluzzo Later in had and Harrison Matthews After oin. the balance Florida to collect went to Rossi $375,000 agreed price, the of paid a second kilo. At them on the owed Coralluzzo, disrespect a exhibiting and Thompson, with and meeting Capotorto extreme even play fair the rules of for $5,000 of partial payment an additional decided to re- among kingpins, narcotics was made. Mat- the deal.3 part their of nege met Coralluzzo with July, In Rossi and Harrison, understandably an- and thews quartet the Florida members of all four cooperation, decid- lack of by such noyed Al- remaining balance. to discuss ap- be the most self-help that would ed dispute about there was some though circumstanc- remedy under propriate kilo, finally was second it quality he Capotorto, Mr. Unfortunately for es. Bertolotti, and Thompson if agreed object to which be that out to turned and supply Rossi Cor- Camperlingo could them- helped and Matthews Harrison pounds five or six hundred Coralluzzo, alluzzo with in their Rossi and selves. would be credited marijuana, it of by revealed humanity display of on the owed cocaine. against money $375,000 trial, returned to met with Rossi quartet August, In their release of exchange for the in marijuana the details iron out companion. grateful purchase negotiations had its stale- for after introduced evidence the Government 3. At alleged episodes be were Both these mated. by prior Rossi. In March of similar conduct charged conspiracy part of the kilograms agreed had to sell two he indictment. co-conspirator Greg Al- Samuels. cocaine to $36,000 though Although retained Rossi received and substance of this was the Albert therefor, payment testimony, jury’s acquittal in the narcot- Samuels from Rossi’s Guer- earlier, distributing charges possessing in Feb- never Even and were delivered. ra on ics Four) they ruary (Count of 600 had a doctor that Rossi robbed indicates the two kilos manita, cutting agent, proof. rejected portion pounds may a narcotic this have had thereafter, Bertolotti, large access to a cocaine Shortly supply in deal. delivered six South America. Camperlingo Pursuant Thompson and to arrange- marijuana time, to Rossi ments made at that pounds of a hundred second meet- ing it to Florida, Capotorto place drove took later and he in the month. York, camper. Iacano, In New addition to York in a Rossi and gather- New ing given to Guer- pounds hundred attended Capotorto, one Flynn twenty- one hundred another of ra, except partners, Iaeano’s Roger which were returned Silverio. The pounds meeting five resulted in an of- fer purchase remainder was sold. Rossi to “all the Camperlingo, cocaine” supply. could 1973) (September C) Rip-off The Lucas Rossi, In August, Capotorto and early September August In late Charles Guida met with Iacano in New Rossi, Peter through a middleman York to sample the latter’s wares. Ros- arranged for a heroin sale Mengrone, si, satisfied with the quality of the co- gave Lucas. Lucas Rossi Frank tested, caine agreed purchase twelve $30,- approximately partial payment kilos. 000; return, provide Rossi was to In September, Rossi received a tele- dis- Following of heroin. large quantity phone call from who advised him Guerra, Capotorto, Louis cussions shipment cocaine had arrived Browning Gary Lepore, Robert and was available for pickup in Florida. Pearson, concluded that Lucas Rossi Rossi and Coralluzzo thereupon con- pluck than would be an easier bird ceived a scheme to drastically reduce and Harrison had been. Ac- Matthews their overhead on this transaction. In a again keep he decided to cordingly, slightly altered version of the Matthews- producing drugs. without money Harrison and Lucas scenarios in which $30,000, gave Capotorto Rossi Out of money was acquired without a delivery $4,000 $8,000 $3,000 to and used to fi- narcotics, Rossi and Coralluzzo now trip a to Florida to conduct nance planned to acquire the Flynn narcotics Flynn with Franklin describ- transaction without a delivery of money. In fur- hereinafter. ed therance of plan Rossi, this using the 1973, the August From to October money acquired Lucas, from flew down Attorney’s office District Westchester to Florida taking Coralluzzo, with him Pe- wiretap on Pearson, an authorized maintained Browning, Lepore, Joseph De- telephone. Tapes home Mengrone’s ter Luca and Angley.5 James Upon his ar- relating intercepted calls fifty-five Florida, rival in Rossi Flynn contacted involving par- such rip-off the Lucas agreed who to deliver the cocaine to the Rossi, Coralluzzo, Guerra, ticipants Diplomat Hotel. Flynn, When Iacano played were and Pearson Capotorto and Silverio arrived with the twelve ki- jury. los, they found a most reception hostile Coralluzzo, committee. Rossi and D) Flynn (July The 1973 Rip-off guns drawn, to De- appropriated the narcotics 1973) cember Browning while and DeLuca bound Flynn and his associates. This clearly transaction was the core acquisition portion venture conspiracy theory of the Government’s successfully completed, group re- around which all the other deals re- DeLuca, City turned to New York where It began July volved. 1973 with Pearson, Angley, Lepore Browning meeting Florida between Rossi paid by were Rossi and Coralluzzo for Iacano, Angelo during which the latter their assistance in the theft.6 partner, Flynn, stated that his Franklin Angley $3,000 was forced to return to New York on 6. DeLuca received in cash and cocaine personal immediately $2,000. Angley business almost and did valued at received three or participate “rip-off.” not four ounces of cocaine. large amounts of narcotics into the operation which fol- The distribution purchasers. hands of the ultimate Unit great Rossi in lowed was described Agueci, 817, ed States v. many of the al- detail at trial. Since (2d 1962), denied, Cir. cert. 372 U.S. of the con- leged participants part S.Ct. Un it would serve no spiracy acquitted, der the Government’s theory presented reproduce the distribution purpose appeal, adhered to on Guer entirety. scheme here in its It must be ra and were the suppliers, Rossi however, mentioned, appellants De- and Coralluzzo the middlemen and Luca, played major Angley and Guerra DeLuca, Guida, Angley, Browning, L. occasions, three DeLu- roles therein. On Mañero, Lepore, Capotorto, Camperlingo, of cocaine large quantities ca delivered Bertolotti, Thompson and Guerra their buyers Angley’s for Rossi. potential customers.8 The Government contends operation was part in the distribution that each of the knew actors he was a 1973, when Ros- larger. even In October participant in a large scale' scheme de were forced to become si and Coralluzzo signed to place narcotics in the hands of large por- over a fugitives, Angley took their ultimate users. We agree. cannot activities, making tion of their narcotics delivering the proceeds several sales and far in find gone quite This Circuit has role was fugitives. Guerra’s more conspiracies in narcotics cases. ing single contractor than a independent that of an Tramunti, v. United States October, delivery boy. purchased he denied, 1975), cert. (2d Cir. U.S. one kilo of cocaine from Rossi (1975); 46 L.Ed.2d 50 and Coralluzzo and distributed it on his supra; v. Sperling, own.7 Mallah, (2d v. 503 F.2d 971 States denied, 1974), II. SINGLE CONSPIRACY 43 L.Ed.2d 671 Bynum, 485 F.2d 490 have been When convictions remanded on other defend vacated and theory that all on the obtained single conspir grounds, members of ants were (1974); United States fact, proof disclosed L.Ed.2d although, in acy of supra. Despite vari the existence Agueci, the error of conspiracies, multiple alleged within an con Berger multiple groups v. committed. ance has been 78, 629, part them as States, spiracy, we have considered 295 U.S. United loose-knit combination integrated v. Unit of one Kotteakos 79 L.Ed. where there existed “mutual in instances ed Note, among Federal and assistance” (1946). dependence L.Ed. 1557 Tramunti, v. su Conspiracies, spheres, United States Multiple Treatment among Appel purpose a common aim or pra, Colum.L.Rev. Ague v. that, participants, the indictment United States contend while lants inference, ci, proof permissible or a single conspiracy, alleged a conspiracies. scope opera nature and of the multiple from the this case showed tion, each actor was aware of his the number actual that as to Their assertions where oth larger organization The in a part two to seven. proved range from ly hand, im equally similar roles Government, performed the other stead ers venture, but the success of portant there existed to fastly maintains Sperling, supra; v. consisting sup conspiracy overall whose Bynum, supra. and customers v. The common middlemen pliers, these cases is running through thread the distribution purpose common was major appellant deals outlined 7. In to the four addition actions between Guerra and Pear- herein, regard- produced at trial evidence was son. engaged ing by appellants including transactions several collateral (1) six cocaine transac- 8. Guerra served a dual role under the Govern- theory, appellant Angley acting supplier Ser- ment’s between and John as both tions and cus- rano, (2) trans- tomer. various heroin and cocaine scope of operation only defined treatment of them as general, our albeit by Rossi’s resourcefulness in devising illegal, business ventures. United States new methods make money. Id. Mallah, supra, at 976. Each involved operandi traditional modus It is middle clear us that the Government purchasing men narcotics for has merely sale to a merged several conspiracies series customers. See United States the sake of convenience. United Agueci, supra. Butler, States v. supra, at 1256. Most in this convincing regard is the internal Of four transactions proved of Special memorandum Agent James trial, only involving the one the “Flor- Harris (Drug Enforcement Administra- quartet” ida resembled the orthodox tion), turned over to defendants as 3500 operation business we have found to ex- material,9 conspiracies. ist in narcotics introduced Mat- them in The support of their matters, thews-Harrison and Lucas deed, various in- severance mo- tions. hardly memorandum, could be This classified as nar- prepared on transactions, cotics June drugs for no three changed days after the filing truth, original hands. they (74 indictment more little Cr. than identifies simple cash thefts. The rip-off as rip- the sub- ject off likewise cannot be indictment described as a tra- and labels it dealing “Conspiracy ditional in narcotics. # 1.” It proceeds Given such then transactions, unorthodox and diverse describe three cocaine we transactions in- volving are reluctant to ascribe Louis Guerra knowledge including the two heavy-handed kilo deal and rip-off Florida opera- Greg- Rossi-Coralluzzo ory tions to These are participants in Samuels. any single described trans- Agent comprising action. Harris as “Conspiracy # 2.” concluding paragraph of this Our examination of the evidence memo reads: reveals a sufficient basis for A number of the defendants in Con- be satisfied a reasonable beyond doubt spiracy # 1 appear in Conspiracy # 2. that each of the asserted transactions Lavin, SDNY, AUSA may decide to place, took but no evidence them linking merge these two conspiracies by using together in a overall conspiracy. the evidence in Conspiracy # 2 sup- Miley, States v. port the more extensive Conspiracy 1975); United States v. # Butler, (10th 1974). Indeed, common factor Obviously, 75 Cr. the superseding linking the transactions was the presence indictment, was precipitated at least in of Rossi and Coralluzzo. This type part by Agent Harris’ memorandum.10 nexus has never been held to be suffi The “single conspiracy” charged therein cient. Kotteakos v. United su was, in substance, a product of the 773-74, pra, 328 U.S. at 1239. S.Ct. imagination. Government’s description We find our of the operation Miley in perfectly apt in the instant Since the charges indictment case. The operations centering around overall conspiracy proof and the shows a Rossi and Coralluzzo could hardly be at ones, series of smaller has there been a any organization, tributed to real even a material variance. Remaining for our “loose-knit” one. United States v. Miley, question consideration is the of which supra, at 1207. There was no evidence prejudiced defendants were so by the to show that two “were these conducting variance as to be entitled to a reversal of what could seriously be called regular ‘a their convictions. See v. Berger United ” steady business on a basis.’ Id. The States, supra, 295 U.S. at 55 S.Ct. superseding was hand- fact that indictment the 9. 18 U.S.C. § 3500. ed down three months after we issued our recognize Agent While we that 10. Harris’ warning Sperling. in predated Sperling, ignore memo we cannot the by the reduced to seventeen ants was Kotteakos, v. su- 629;11 States United jury. the These case went to time the Miley, supra, at v. United States pra; even when com- figures impressive are 1207; 52(a). Although Fed.R.Crim.P. There, thirty-two Kotteakos. pared with a variance can by caused prejudice the indicted, four more and persons forms, are concerned here we many take co-conspira- as unindicted were named Judge Friendly describ- solely with what proceed- Only nineteen defendants tors. spill- a at Miley, supra, ed in trial; and, by the time the case ed of the transference effect: over left. thirteen were jury, only the reached conspiracy to of one from members Kotteakos v. See of another.12 members easily count- are defendants While 774, 66 328 at S.Ct. supra, United readily comput- are less ed, conspiracies 1239. however, conclusions, Several able.13 may generally It be conceded First, clear it seems obvious. appear prejudice resulting of possibility that the in engaged transaction the increases with the num from a variance completely awas quartet” “Florida the tried and the number ber of defendants Second, conspiracy. independent proven. Blumenthal v. conspiracies of best, bears, at rip-off Matthews-Harrison United transac- other relation tenuous 92 L.Ed. 154 is connect- rip-off Third, Lucas tion. 1209; Note, Miley, supra, v. at rip-off weakly, ed, albeit 402. “Numbers are vi Colum.L.Rev. at partici- of of several identity tally important especially in in portion use of the ultimate and pants United criminal matters.” Kotteakos, States transport proceeds Lucas supra, 1328 U.S. at perceive, fail Florida. We thieves however, Indeed, at 1252. distin uniting the purpose a common guishing Supreme between the factor involved no One deals. and Lucas finding prejudice Berger of no in Court’s theft; had as the other cash than a more and its conclusion Kotteakos contrary massive nar- acquisition goal its was the difference in the number of de there- the distribution and supply cotics conspiracies. we fendants While Butler, supra, of. See recognize question that the of prejudice at solely is not a consideration quantitative, were tes- transactions other Numerous involved in the case “numbers” which Guerra-Pear- trial to at tified appropriate starting an point seems and the deals14 Angley-Serrano son our analysis. are but rip-offs15 manita Samuels Giving the examples. modest defend Berger four four involved doubt, we benefit case, the indictment ants. In the instant to be irrelevant defendants, these twenty-nine named deem conspira- of additional proof than alleged thirty-one unindicted rather additional therefore, is estimate, best Our brought the individ cies. co-conspirators total least showed herein proof sixty. the onset to As a uals involved at no We see conspiracies. separate four unavailability, severances result Kotteakos precise. more to be need the number defend- pleas guilty, States, 295 U.S. Berger, inquiry,” 11. “The true as stated in “is L.Ed. proof not whether there has been a variance but as precise whether there has been such variance itself made no determina- 13. Kotteakos rights’ tion, only eight to ‘affect the substantial the ac- concluding “at least cused,” 82, independent 295 at 55 separate U.S. S.Ct. at 630. perhaps con- more” actually proved spiracies at trial. 328 were hearsay emanating 12. The record discloses no 754-755, 66 at 1243. U.S. at S.Ct. conspiracies from a member of one of the used another, of a member of Unit- detriment n.7. 1191, Miley, (2d ed States v. 513 F.2d 1208 Cir. 1975), problem “surprise,” Berger n.3. 15. See and no v.

157 Matthews, Appel Harrison and Lucas. States, 754, supra, v. United 328 U.S. at 1239; Angley, lants DeLuca and in concededly United v. Miley, States S.Ct. transaction, volved in the were at 1209. supra, subjected deluge likewise to a of evi conspiracies proven, In the number relating to at least three other dence (two con- Berger between case fits conspiracies they played in which no conspira- (eight and Kotteakos spiracies) Because of their overlapping role. in reversing all the convictions cies). In in more than one of the prov volvement it, Kotteakos Court concluded before conspiracies, prejudice to appel en prejudicial and separating the line and Guerra is Capotorto glar lants less fell somewhere be- variances harmless States, Monroe v. ing. See United at the two decisions. U.S. tween denied, 873, F.2d U.S. the second time 774, 1239. For 66 S.Ct. 94, (1956); United months, upon our is called six Court in Benjamin, (2d v. 328 F.2d 854 States identify this line. to further Cir.), cert. denied sub nom. Howard v. Miley, supra, v. In United States States, 953, 377 U.S. involving at least two and at most case 12 L.Ed.2d 497 conspiracies, we found that three Borelli, (2d and the between the indictment variance nom. cert. denied sub Cin no defendant. In Mi- proof prejudiced v. United quegrano however, only persons nine were in- ley, (1965). 13 L.Ed.2d 555 85 S.Ct. dicted, five of these only proceeded Russano, Compare United States trial lasted five Miley trial. The 1958). We, never four days; nearly the instant case took theless, prejudice clear evidence of find try. Miley, the crimes of weeks to they may these two as well. Criminal were not marked- appellants the various been, permit their did not have but different; they scarcely here resem- ly “right of their not to be tried violation factors, alone, another. These bled one conglomeration for the of dis en masse however, not a different re- compel do separate offenses committed tinct and analysis judgment “In the final in sult. States, su Kotteakos v. United others.” case must be influenced convic- each at 1253. at pra, resulting tion from examination of the entirety, in their proceedings tempered summary In view of our of the various governed any rigid not sense of but conspiracies which appears at the onset by what has stare decisis been done in opinion, of this we believe it unnecessary situations.” Kotteakos v. United similar engage in a detailed recitation of the 66 S.Ct. at 1246. prejudice inherent therefore, turn, to a We consideration of presented. possibilities of spill-over trial below. effect from on testimony these transac- guise of its conspir- Under patent tions are when the number of subjected acy theory, conspiracies, the number of defendants appellants the seven to volumi- each of and the volume of weighed evidence are testimony relating to unconnected nous against ability of the give part. Appel- in which he took no crimes each defendant the individual considera- Bertolotti, Thompson Camper- lants tion our system requires. See Recent participants active in the “Florida lingo, Case, 95 U.Pa.L.Rev. 413 n.7 deal, tied in with quartet” way do, however, but no We wish to briefly focus on conspiracies other nor shown any of the one of the more troublesome items of Rossi, evidence, have dealt with Coralluzzo or merely not specific as a exam- any prior on or subse- their associates ple prejudice suffered by defend- occasion, below, forced to sit but, well, ants quent for its illustra- damaging testimony weeks of through tion of the dangers inherent of combin- and distribution acquisition ing unrelated criminal acts under thefts from and the cash alleged single cocaine roof of an conspiracy. The starting point for our inquiry early In late summer or fall of must be the indictment itself. the Since Westchester District Attorney placed each of the overt acts set forth therein a court wiretap authorized on the tele- solely acquisition related and dis- Mengrone.16 Tapes Peter phone of cocaine, tribution the in- calls, con- intercepted the fifty-five dictment might conceivably be construed racial slurs as taining obscenities to cover conspiracy. that We do banter, irrelevant well as substantial believe, however, not scope that the of a These jury. the conver- played were charged conspiracy is properly measured evi- sations, introduced as purportedly the nature of the overt acts alone. negotiations between of narcotics dence Moreover, other factors indicate that the Lucas, Frank Mengrone, on behalf charged conspiracy and the Flynn trans- of Ros- individuals on behalf several and si, action were not synony- intended to be than a series of nothing more First, mous. the testimony of Albert seeking forces by the Rossi charades grand Rossi before the jury went well $30,000. Appellant his Lucas of defraud beyond the Flynn episode. Indeed, al- on almost half appears voice Guerra’s half testimony most his before grand the appearance the Except for tapes. jury produced superseding in- the tape on three of name Capotorto’s dictment related to the deal with the remaining appel- none of transcripts, “Florida quartet.” The per- second or was men- participated either lants suasive factor is the face of the indict- taped con- tioned, fifty-five any ment itself. charged Count One a con- admittedly tapes While versations. spiracy commencing in January 1973. of the Lucas probative been may have Plans for the Flynn acquisition began no to any no relevance they have rip-off, July earlier than 1973. The third consid- trial. proved the other transactions eration is the view of the indictment however, effect, of re- prejudicial taken the Government. While admit- spend two entire quiring jury tedly the prosecutors are not the final obviously shocking and listening to days judges the question, their interpreta- assault, about inflammatory discussions given tion must be weight some where and narcotics cannot be kidnapping, guns we seek to ascertain their initial inten- ought No defendant underestimated. tions. The Government’s view taken be- considering his have a which is during fore and and adhered to or innocence hear evidence of this sort on appeal, is that each of the transac- him with the proof connecting absent engineered by tions Rossi and Coralluzzo subject respect matter discussed. With part conspiracy. appellants, five no such to at least convincingly produced. was ever proof We that, conclude for purposes of fu- ture proceedings in the Court, District say Because we cannot this Court should not attempt no influence define committed below had errors either of, the boundaries or verdict, partici- appel we reverse jury’s on the in, pants the conspiracy charged In the exercise of our lants’ convictions. indictment. The Government’s 2106 to “direct under 28 U.S.C. power § may be prove sufficient to any of a judgment num- entry appropriate of such ber of conspiracies. distinct Under just under the cir these may be circumstances, a dismissal of cumstances,” we have examined the indict- ment in toto juncture at this whether the would in order to determine not record be in justice. interests of open be left for a new trial way should Russano, States v. supra, at all of them. Yates v. United Bryan v. 94 L.Ed. (1957); United Accord- ingly, we remand for Russano, further proceed- at 716. previous rip-off See our discussion of the Lucas placement wiretap for a of this its proper context.

159 wise, Estepa, it deem ings conformity with this opinion. 1972), is not (2d Cir. this 1132 471 F.2d Kotteakos v. 328 an instance. such 777, 66 U.S. S.Ct. 1239. Should decide to retry Government this case on Appellants’ next assertion of existing indictment, the basis of the error judge’s relates to the trial charge District Court will have the benefit both that, in determining whether defendants of our decision and the trial record in had the requisite knowledge, wilfulness deciding appropriate motions to sever. intent, jurors “should presume Miley, See United States v. supra, at person that a intends natural and 1209-1210. probable consequences of his acts.” This previously Court has held that where a III. OTHER ISSUES conspiracy charged, is the probable, Since retrial is we express “specific” must establish a intent to vio our views on several additional issues late the substantive statute beyond a which have been raised. reasonable doubt. United States v. Can Appellants contend that the su (2d giano, Cir.), 491 F.2d 906 cert. de indictment, 5, perseding 75 Cr. was in nied, 904, 188, 95 S.Ct. 42 6, 1975, valid. January On the day the (1974). charge L.Ed.2d 149 chal begin, trial was set to the Government lenged here cannot be reconciled with grand discovered that the jury testimony requirement. this United States v. Can of Albert Rossi used to obtain Indict giano, supra, at 910-11. We have for ment 74 Cr. 620 made no mention of many against warned years the use of Raymond defendant Thompson. Accord charge, type this United States v. ingly, the Government went before a Barash, 395, (2d 365 F.2d 402-03 Cir. grand second jury supersed obtain a 1966), surprised and are somewhat at its ing indictment. again Rossi testified appearance. dispo Given our continued but, reiterating instead of his previous case, sition of this there is no need to testimony, merely supplemented it. Ac Judge determine whether Carter’s erro cordingly, testimony his named ten charge neous constitutes reversible error. of the indicted occupied defendants and wish, however, opportu We to take this less than three pages of transcript.17 nity again disapproval stress our Appellants contend that the second probable consequences” the “natural and grand jury never considered the judges earlier to remind trial charge and testimony of that, Rossi and therefore, may jeopardize continued use other its denial the trial judge of the mo wise sound convictions. tion to dismiss the indictment as based

on insufficient evidence was Judge permitted jur erroneous. Carter Our review of the transcript during Ap States, (1951). In a case of this L.Ed. (1896), 41 L.Ed. 300 retains the health I it seem magnitude and duration would has, it believe would double jeopardy. promote would notetaking such consideration

the individual meticulous which each defendant deserves from the Under such circumstances the interests judicial system, of the defendants jury. Judge carefully Carter instructed matter, and, of the for that jury purpose as to limited which by dismissing served would be best notes such served: proof failure of of the indictment for have each permitted charged allowing I to take single conspiracy yop during did not lessen the employed primary ob-

jective which was to possess so as to

distribute.

There would be little point re-ana-

lyzing respective degrees culpabil- of each of the

ity defendants since a may eventually place.

re-trial take

every multi-defendant narcotics trial periods

there are bound to be during

which certain defendants will have to

listen to testimony directed towards the of others. Were possibility spill-over

some effect held to be re-

versibly prejudicial, principle of indi-

vidual trials would be created. How-

ever, such is not the law. would, therefore,

I affirm the convic- Capotorto, DeLuca,

tions of Angley and and reverse

Guerra and remand for a Bertolotti,

new trial as to Camperlingo Thompson. al.,

Joe SILVER et Plaintiffs-Appellees Cross-Appellants, CORMIER,

Paul S. Defendant-Appel Cross-Appellee.

lant and 74-1829,

Nos. (C-4581). 74-1830

United States Court of Appeals,

Tenth Circuit.

Argued Aug. 1975.

Decided Jan. of Albert ors to notes the trial. make Rossi’s January 6th testimony assert that the court’s failure to pellants reveals that the transcripts of his prior prior permitting examine these notes testimo ny were both jurors’ identified him use in the and their deliberations con presented grand jury There is no authority as exhibits. stituted error. event, “an proposition. long indictment valid on its It has been estab subject face is not that it is within challenge on the lished this Circuit ground that the grand allow jury acted on the trial court’s discretion to inadequate basis of . . . evidence.” to take notes and use them in the course Calandra, United States v. 414 of their deliberations. United U.S. Marquez, (2d denied, While certain permit situations U.S. us to dismiss indictments in the 31 L.Ed.2d 239 United States v. exercise of our supervisory Chiarella, powers where we pages twenty-seven of tran- occupied previous testimony 17. The used to obtain 74 Cr. script. present would no obstacle to new indict remanded on other 1950), vacated and neither, ments and Ball if v. United grounds,

Notes

notes the course of the trial. I to seek new indictments the Government expect you to use whatever notes you conspiracies to which the for the several merely However, as memory They took aids. in order to points. made, should not be allowed preced- to take disposition to be I subor- permit - your independent memory ence over join views and in my personal dinate the facts. opinion. Van Judge Graafeiland’s clearly There is no abuse of discretion involved here. Toles v. United MOORE, Judge (concurring Circuit (9th 1962), 308 F.2d Cir. cert. dissenting): denied, U.S. The indictment in issue charges twen- Harris v. United ty-nine defendants with a conspiracy to (9th possess distribute and with intent to dis- denied, tribute narcotic There drugs. is no ques- 3 L.Ed.2d 1546 tion of the involvement appellants in questionable enterprise. The ma- CONCLUSION jority concerns itself with the procedural Reversed and remanded for further niceties of bringing gravity of their in proceedings accordance with this deci- respective participations before a sion. for determination. The facts portraying the roles of these FRIENDLY, HENRY J. Judge Circuit drug traffickers have been so ably and (concurring): lucidly by Judge set forth Van Graafei- Applauding Judge Van Graafeiland’s land that I will only mention briefly my do, opinion as I I go would further in cause of disagreement with the legal respect, namely, by directing dis- conclusions drawn therefrom. missal of the indictment rather than As stated by majority, Rossi and leaving the district court an uncharted Coralluzzo were the principal partici- discretion proceed whether and how to pants. They drew around them satellites with this The opinion incubus. convinc- of more magnitude. or less In nar- ingly demonstrates that the indictment cotics conspiracy there is bound to be a fairly cannot be' read as charging the wide difference in participation both Flynn conspiracy alone. Granted that degree And culpability. every de- authority we have to take the course fendant not participate every need brother, by my directed see United transaction. The critical elements are Russano, (2 possession and distribution and there can so; 1958), we obliged are not to do be question no but that both were con- why one reason the Russano court be- vincingly (to jury) established. lieved dismissal “would not be in justice” interests of doubtless was My disagreement with the majority is that, as to one of the two conspiracies, that they regard the various transactions limitations apparently statute of had obtaining drugs involved in as sepa- the statute of Here limitations rate conspiracies, upon run. whereas I look swindles, rip-offs the so-called merely related activities as the means possession to obtain pay- used without Thus, I example, sep- ment. find no having object arate convocation as its Flynn. the theft from He entered picture as a source of narcotics. short, gained some of the defendants drugs possession by intimidation But, stated, and force. the means

Case Details

Case Name: United States v. Angelo Bertolotti

Court Name: Court of Appeals for the Second Circuit

Date Published: Nov 10, 1975

Citation: 529 F.2d 149

Docket Number: 75--1165

Court Abbreviation: 2d Cir.