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United States v. Cirillo

decided: November 6, 1972.


Waterman, Smith and Kaufman, Circuit Judges.

Author: Kaufman

IRVING R. KAUFMAN, Circuit Judge:

This appeal, from a judgment of conviction for violation of federal narcotics laws, takes us on a voyage of international intrigue. Events in France, Canada, and the United States provide the factual context against which we are asked to decide whether Louis Cirillo's two count conviction for conspiracy to import, possess with intent to distribute, and distribute narcotics, 21 U.S.C. §§ 846 and 963, and for the substantive offense of possession of heroin, 21 U.S.C. §§ 812, 841(a)(1), 841(b)(2), and 18 U.S.C. § 2, may stand. We hold that it may and affirm the conviction.*fn1

Since the critical inquiry in any conspiracy case involves a determination of the "kind of agreement or understanding [that] existed as to each defendant . . . as he understood it," United States v. Bennett, 409 F.2d 888, 893 (2d Cir.), cert. denied sub nom. Haywood v. United States, 396 U.S. 852, 90 S. Ct. 113, 24 L. Ed. 2d 101 (1969); see also, United States v. Borelli, 336 F.2d 376 (2d Cir. 1964), cert. denied sub nom. Cinquegrano v. United States, 379 U.S. 960, 85 S. Ct. 647, 13 L. Ed. 2d 555 (1965), it is profitable at this juncture to recount the dramatic facts of this case.

The Government's proof*fn2 relied principally on the testimony of a Frenchman, Roger Preiss, a named, but not indicted, co-conspirator.*fn3 His role in this saga, as he himself described it, was that of "go-between" for French sellers of heroin and for their American buyer. As a party to all conferences and transactions connected with the conspiracy, Preiss was ideally suited to play the role of Greek chorus and narrator of the events in question. His testimony embraced two transactions, one in August, 1971, and another in September and October, 1971; we adopt this division here for descriptive purposes.

The August Transaction

The evidence revealed a daring plan to smuggle 83 kilograms of pure heroin into the United States by hiding the narcotics behind and beneath the panels and floor board of an automobile, destined to be shipped from France to Canada and from there brought across the border into America. This ingenious, albeit misguided, scheme was the brainchild of a quartet of Frenchmen: Joseph Signoli, the principal seller; Andre Labay, a smuggler; Richard Berdin, a contact man; and Roger Preiss, a close friend of Berdin's. Berdin recruited Preiss to accompany Signoli on a trip to the United States, there to receive and deliver the heroin to Signoli's American buyer.

Preliminary arrangements in Paris occupied the participants' time through much of late spring and the early summer of 1971. By August 10, however, armed with fraudulent passports acquired from a Pigalle hairdresser, Preiss and Signoli departed by train for Frankfurt, Germany. En route, Signoli gave Preiss $2,000 and two telephone numbers and addresses, said to belong to Signoli's buyer. As the government's proof later showed, the numbers and addresses referred to apartments in Miami and New York used by the appellant, Louis Cirillo.

From Frankfurt, Preiss -- travelling under the name Patrick Lorentz -- and Signoli -- adopting the alias, Yvon Tournied -- flew to Montreal where they were met by Michel Mastantuono and his fiancee. After two days in Montreal -- to what end the record does not make clear -- Preiss, on Signoli's instructions, flew to Miami, where he was joined by Signoli the following day, August 14. Signoli immediately made plans to meet with Cirillo later in the afternoon. Although Preiss was not present at that meeting, while strolling about the city he observed Signoli and Cirillo seated at a table in a Howard Johnson restaurant. Later, Preiss informed Signoli that he had seen Signoli with the American buyer. Signoli then told Preiss that the addresses and telephone numbers he had been given on the train to Frankfurt were Cirillo's. Preiss was told he would soon meet Cirillo and he was cautioned not to mention to Cirillo that he had Cirillo's telephone number.

Shortly thereafter, on August 15, or 16, Preiss did meet with Cirillo. A rendezvous was scheduled for a restaurant in Miami, where Signoli, Preiss, Cirillo and John Astuto, Cirillo's aide, assembled. Signoli introduced Preiss as his "future representative . . . in the United States," and said that Preiss would remain in America for six months. Cirillo, in turn, introduced Astuto to Preiss as a contact man, saying, "when you need to see me, you have any problem for the drugs, you know, in the future, you see this man," pointing to Astuto. A short while later, the four men left the restaurant and went to Cirillo's Miami apartment. There it was agreed that Cirillo would pay $10,500 per kilogram of heroin, with delivery scheduled for New York within the week.

The scheme continued to work smoothly as the conspiratorial group moved north. Preiss and Signoli flew to New York on August 20 and met briefly with Astuto. A day or two later, Mastantuono, the Montreal connection, met with Signoli, Preiss and an unidentified man from Marseilles, in front of St. Patrick's Cathedral on 5th Avenue, and identified a red car parked on the street as the vehicle that had been brought from Canada carrying the drugs. At a coffee shop nearby, Signoli and Preiss then met briefly with Cirillo and Astuto. Signoli told Cirillo that there were no problems and that "everything is okay."

The following morning, August 22, at 7:30 A.M., Preiss, Signoli, Astuto, Mastantuono, and the man from Marseilles, drove the car with narcotics to a home in Fort Lee, New Jersey, where the car was placed in the garage. During the next four hours the car was torn apart. With the aid of diagrams produced by Mastantuono, the conspirators located 83 kilograms of heroin, packaged in clear plastic bags of half-kilo weight, and removed them from a variety of hidden recesses in the door panels, under the floor board and beneath the roof. At one point Preiss removed a bag and it tore, with heroin falling to the floor of the car and the garage.*fn4 After all the heroin had been removed from the car and carried into the house, the men returned to Manhattan. At dinner, with Signoli, Preiss, and the man from Marseilles, Astuto told his companions that Cirillo had arranged a celebration for them that evening. Signoli explained that it was Cirillo's custom to have such parties "after each operation."

The party held in a Manhattan apartment, was not only a social event but an occasion for making important plans for future dealings as well. Astuto, Signoli, Preiss, and the man from Marseilles, arrived at about 11 P.M. Cirillo joined them two hours later and indicated that all of the heroin unloaded from the car was acceptable, including two half-kilo bags over which there had been some concern because of the yellow color of their contents. Cirillo then turned to Preiss and instructed him that future contacts with Astuto would be made indirectly through a third person whose voice Cirillo wanted Preiss to hear on the telephone. A call was then made to Barbara Schmidt, a former girl friend of Astuto's. Astuto told Preiss in Cirillo's presence that he could always be contacted through Barbara.

The eventful day then quickly drew to a close when Cirillo insisted on paying Signoli for the drugs in private. The following day Preiss and Signoli discussed their plans for separation. Preiss informed Signoli that he had decided not to stay in America for six months but would return to Europe in the near future. Signoli assented and gave Preiss $2,000 from a suitcase filled with $100 bills and totaling about $300,000. He also handed him two telephone numbers at which ...

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