Appeals from judgments of the District Court for the Southern District of New York, Robert Carter, Judge, convicting appellants, after verdicts, of conspiracy to possess and distribute controlled substances. Reversed and remanded.
Moore, Friendly and Van Graafeiland, Circuit Judges. Friendly, Circuit Judge, concurring. Moore, Circuit Judge, concurring and dissenting.
VAN GRAAFEILAND, Circuit Judge:
Appellants Angelo Bertolotti, James Capotorto, Joseph Camperlingo, Raymond Thompson, Joseph DeLuca, James Angley and Louis Guerra, convicted of conspiracy to violate the federal narcotics laws (21 U.S.C. § 846) following a four-week jury trial in the District Court for the Southern District of New York, seek reversal of these convictions. Because of the Government's failure to heed our admonition in United States v. Sperling, 506 F.2d 1323 (2d Cir. 1974), cert. denied, 420 U.S. 962, 95 S. Ct. 1351, 43 L. Ed. 2d 439 (1975), that it cease combining in an alleged single conspiracy, criminal acts loosely, if at all, connected,*fn1 we are compelled to accede to appellants' request.
Indictment 75 Cr. 5, filed January 6, 1975, which superseded Indictment 74 Cr. 620, filed June 18, 1974, charged twenty-nine individuals, including the seven appellants, with an assortment of federal narcotics violations. The Government supplemented the indictment with lists, copies of which were given to defense counsel, containing the names of thirty-one additional unindicted co-conspirators.
Count One charged all twenty-nine of the indicted individuals with conspiracy to distribute and possess with intent to distribute Schedule I and II narcotic drugs. Thirteen overt acts in furtherance of this conspiracy were alleged. Each of the appellants was named in at least one of these overt acts.
Counts Two through Nine charged many, although not all, of the defendants with substantive narcotics possession and distribution violations. Appellant DeLuca was charged in Count Two with distribution and possession of twelve kilograms of cocaine. Appellant Guerra was charged in Count Four with distribution and possession of one kilogram of cocaine. The remaining five appellants were not named in any of the substantive counts.
Six defendants, including the central figures in the alleged conspiracy, Albert Rossi and Ernest Coralluzzo, entered guilty pleas prior to trial. Six other defendants were "unavailable" for trial. The remaining seventeen proceeded to trial before Judge Robert Carter and a jury. The results were disastrous to the Government. Not a single defendant was convicted on any of the eight substantive counts.*fn2 On Count One, the conspiracy count, the jury acquitted eight defendants and failed to agree on two others. Only the seven appellants were found guilty on this count.
Because of the large number of transactions alleged by the Government to be part of a single conspiracy, it is difficult to succinctly summarize the facts. We begin, however, by describing in chronological order the four major events about which evidence was produced at trial, leaving for later the question of how, if at all, they may be tied together.
A) The Matthews-Harrison Rip-off (Spring 1973)
As is true of each of the four major deals hereinafter described, Albert Rossi and Ernest Coralluzzo were the principal participants in this transaction. In the spring of 1973, these two and James Capotorto negotiated with Frank Matthews and Harold Harrison for the sale to them of thirty to fifty kilograms of heroin. After Matthews and Harrison had paid $375,000 of the agreed price, Rossi and Coralluzzo, exhibiting a disrespect for the rules of fair play extreme even among narcotics kingpins, decided to renege on their part of the deal.*fn3 Matthews and Harrison, understandably annoyed by such lack of cooperation, decided that self-help would be the most appropriate remedy under the circumstances. Unfortunately for Mr. Capotorto, he turned out to be the object to which Harrison and Matthews helped themselves. Rossi and Coralluzzo, in their only display of humanity revealed by the evidence at trial, returned the $375,000 in exchange for the release of their grateful companion.
B) The Florida Quartet's Two Kilogram Purchase (May 1973 to September 1973)
In late May or early June 1973, Rossi and Coralluzzo met in New York with two Florida visitors, the previously mentioned Capotorto and one Raymond Thompson. Capotorto, speaking for himself and Thompson, as well as two other Florida associates not present at the gathering, Angelo Bertolotti and Joseph Camperlingo, indicated the quartet's desire to purchase one kilogram of cocaine. Upon Capotorto's representation that his group had raised between $17,000 and $19,000 to pay for these narcotics, Rossi telephoned Louis Guerra requesting the delivery of one kilo. The following day, Guerra arrived bearing, not one but two, kilos of cocaine, one pure and one diluted.*fn4 With a little persuasion from Rossi, Capotorto and Thompson agreed to double their purchase. The $17,000 (or $19,000) was immediately paid to Rossi and Coralluzzo for the pure kilogram, and additional payments for the diluted kilogram were promised.
Later in June, Rossi and Coralluzzo went to Florida to collect the balance owed them on the second kilo. At a meeting with Capotorto and Thompson, an additional partial payment of $5,000 was made.
In July, Rossi and Coralluzzo met with all four members of the Florida quartet to discuss the remaining balance. Although there was some dispute about the quality of the second kilo, it was finally agreed that if Bertolotti, Thompson and Camperlingo could supply Rossi and Coralluzzo with five or six hundred pounds of marijuana, it would be credited against the money owed on the cocaine. In August, the quartet met with Rossi to iron out the details of the marijuana deal. Shortly thereafter, Bertolotti, Thompson and Camperlingo delivered six hundred pounds of marijuana to Rossi in Florida, and he and Capotorto drove it to New York in a camper. In New York, one hundred pounds were given to Guerra, and except for one hundred twenty-five pounds which were returned to Camperlingo, the remainder was sold.
C) The Lucas Rip-Off (September 1973)
In late August or early September 1973, Rossi, through a middleman Peter Mengrone, arranged for a heroin sale to one Frank Lucas. Lucas gave Rossi a partial payment of approximately $30,000; in return, Rossi was to provide a large quantity of heroin. Following discussions with Capotorto, Guerra, Louis Lepore, Robert Browning and Gary Pearson, Rossi concluded that Lucas would be an easier bird to pluck than Matthews and Harrison had been. Accordingly, he again decided to keep the money without producing the drugs. Out of the $30,000, Rossi gave Capotorto $3,000 to $4,000 and used $8,000 to finance a trip to Florida to conduct the transaction with Franklin Flynn described hereinafter.
From August to October 1973, the Westchester District Attorney's office maintained an authorized wiretap on Peter Mengrone's home telephone. Tapes of fifty-five intercepted calls relating to the Lucas rip-off and involving such participants as Rossi, ...