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United States v. Poeta

decided: January 24, 1972.


Lumbard, Waterman and Feinberg, Circuit Judges.

Author: Lumbard

LUMBARD, Circuit Judge:

Eduardo Poeta, found to be a central participant in an international heroin smuggling operation, appeals from a judgment of March 19, 1971 in the Eastern District sentencing him to imprisonment for 40 years and fines totalling $300,000,*fn1 following his conviction by a jury on 14 counts of illegally importing and distributing heroin in the United States, 21 U.S.C. §§ 173 and 174, and one count of conspiring to do so.

Poeta's only claims of error relate to the admission of two conversations intercepted on July 10 and 11, 1970 over the telephone of his co-defendant Luis Stepenberg*fn2 on the grounds that the judge's order authorizing the tap was invalid, that the conversations intercepted were seized more than a week after Poeta and Stepenberg had been indicted and constituted an infringement of Poeta's right to counsel, that the government failed to minimize the extent of its wiretapping in violation of 18 U.S.C. § 2518(5), and that the recordings of the intercepted conversations were not made available to the court issuing the order within the time required by the governing federal statute. We find no error in the admission of this evidence and, accordingly, the conviction is affirmed.

Entirely apart from the wiretap conversations, the evidence against Poeta, who did not testify in his own behalf,*fn3 was overwhelming. The government's case was built principally on the testimony of two witnesses: Jaime Cohen, a confederate of Poeta and Stepenberg, who had assisted them for two years in selling the heroin which they imported, and Felix Martinez, who had purchased large quantities of heroin from Cohen and Poeta on numerous occasions. In addition, federal and state narcotics agents had observed and filmed many of the meetings between the coconspirators and so testified.

The evidence showed that the scheme began when, following instructions given by Stepenberg at a meeting in Rio de Janeiro, Brazil in December 1968, Cohen rented a house on Dartmouth Street in Forest Hills, New York. The Dartmouth Street house was used as a distribution point for the smuggled heroin. On fourteen different occasions between June 1969 and February 1970, Poeta and his coconspirators Stepenberg and Jacobo Grodntzsky*fn4 smuggled quantities of heroin, ranging from one to ten kilos, into the country and to the Dartmouth Street house. When the heroin arrived at Dartmouth Street, Poeta would contact Cohen telling him that the heroin was there and giving the precise location of its hiding place within the house. Poeta instructed Cohen to go to the house on at least seven different occasions. After retrieving the heroin, Cohen would contact a purchaser, deliver the heroin in quantities ranging from one to ten kilos, and collect payment in cash which he would deliver immediately to Poeta. By February 1970, Cohen had sold approximately 20 1/2 kilos of heroin, at $13,500 per kilo or $8,000 for half a kilo, for an approximate total of $293,000.

Cohen was arrested in February 1970 and 8 1/2 kilos were recovered in an apartment at 42-25 80th Street, Queens, New York, which Cohen rented. After a few days in jail where he was held unable to post $250,000 bail, he agreed to cooperate with state and federal authorities. Released on bail of $15,000, Cohen resumed his operations with Poeta and Stepenberg, but kept the authorities informed of their activities and consented to electronic surveillance of his telephone and his apartment at 92-28 57th Street, Queens, New York, where he resided.

Wiretap surveillance was begun on March 19, 1970, when the District Attorney of Queens County obtained an order from New York Supreme Court Justice Leahy which authorized a wiretap on Cohen's telephone 592-5459 at the Forest Hill house.*fn5 No objection is made to this order nor the four subsequent orders of April 17, May 15, May 28 and June 15 which authorized continued tapping, as Cohen had consented to all these taps.

Relying on information received from these taps, the District Attorney, on April 22, 1970, obtained an order from Justice Schweitzer of the New York Supreme Court which authorized the New York City Police Department to wiretap the telephone of Luis Stepenberg's father at 711 West End Avenue in Manhattan, 866-2971, on the allegation that Luis Stepenberg generally used that telephone.

The affidavit of Detective Reid in support of the District Attorney's application for the April 22 order referred in detail to four conversations which had been heard over the tap on Cohen's telephone: On March 19, using Cohen's telephone Felix Martinez had called one Isabel Benitz and told her to deliver one-half kilo of cocaine to him at a certain place; on March 20, Cohen had called Martinez and they talked about the delivery of cocaine arranged the day before; on April 11, Cohen had called Luis Stepenberg who spoke about paying Cohen both for his participation in a prior narcotics sale and for his attorney's fee incurred as a result of his February arrest which had uncovered 8 1/2 kilos of heroin and led to his cooperation with the police; and finally, on April 11, Martinez and Cohen had spoken regarding the receipt and quality of one kilo of cocaine delivered to Cohen by Isabel Benitz.

On May 7, Justice Schweitzer amended his order of April 22 to permit the tapping of the telephone, 787-1624, which Stepenberg recently had installed in his own apartment at 155 West 68th Street, Manhattan. On May 21, 1970 Judge Schweitzer reauthorized the tapping of this telephone on the further application of the District Attorney, supported by an affidavit of Detective Reid which related to a conversation intercepted on May 16, 1970 between Poeta and Stepenberg concerning a shipment of narcotics from Argentina.

On June 19 the District Attorney secured a further authorization of the wiretap order and it was under this order that the July 10 and 11 Poeta-Stepenberg conversations were intercepted.

In the July 10 conversation, Poeta told Stepenberg to "desist" from further operations as he had spotted a tail; in the July 11 conversation, Poeta talks of a day at the races, apparently code language regarding a shipment of heroin. Poeta now contends that the June 19 wiretap, and hence the July 10 and 11 seizures made under it, were invalid and that his conviction must be reversed. He advances two arguments: first, that the June 19 order was invalid since it was granted largely on the basis of a conversation illegally intercepted on May 16; and, second, that the June 19 order was invalid because there was no new showing of probable cause in the application for it.

Our examination of the record order convinces us that the seizure of the May 16 conversation was authorized by Justice Schweitzer's order of April 22. Appellant has argued that the seizure was not authorized because the April 22 order "terminated automatically as soon as it had resulted in the interception of the first ...

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