Appeals from judgments of the United States District Court of the Southern District of New York, after jury trial before Hon. Morris Lasker convicting appellants of conspiring to violate the federal narcotics law and of substantive narcotics violations, in violation of 21 U.S.C. §§ 846, 812, 841(a)(1), and 841(b)(1)(A). Affirmed.
Van Graafeiland, Circuit Judge, Kelleher*fn* and Gagliardi,*fn** District Judges.
GAGLIARDI, District Judge:
Angelo Ricco, James Rizzieri, and Charles Indiviglia appeal from judgments of conviction entered in the United States District Court for the Southern District of New York following a three week jury trial before Judge Morris E. Lasker. Each appellant was convicted of conspiring to distribute narcotics, 21 U.S.C. § 846, and of distributing, and possessing with intent to distribute, narcotics, 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A).*fn1 The principal claim of error raised on this appeal is the not unfamiliar argument that the evidence introduced at trial varied from the indictment by establishing multiple conspiracies rather than the single one charged. Appellants also contend that the prosecutor's comments in summation denied them a fair trial. Additionally, Rizzieri raises claims of prejudicial pre-trial delay and double jeopardy, and Ricco contends his motion for severance was improperly denied. For the reasons which follow, we find each of these contentions to be without merit and, accordingly, affirm the judgments of conviction.
The proof at trial revealed the existence of a relatively uncomplicated conspiracy composed of two or three suppliers who regularly sold large quantities of heroin and cocaine to intermediate distributors, each of whom in turn provided smaller amounts with equal regularity to more numerous retailers or customers. For much of its case the government relied on the testimony of a number of unindicted co-conspirators, including Albert Rossi and Peter Mengrone.*fn2 In brief outline, the testimony, which was corroborated by other evidence, established that appellant Angelo Ricco and his uncle, Anthony Ricco, also known as Tony Bragiole ("Bragiole"),*fn3 headed the conspiracy and were its source of narcotics. Ricco and Bragiole (jointly referred to as "the Riccos"), acting with the assistance of appellant Indiviglia, supplied heroin and cocaine on a regular and extensive basis to Rossi, appellant Rizzieri, co-defendant Blase, and Mengrone, who in turn diluted and distributed the narcotics to co-defendants Corrado and DiSalvo, and additional customers. Numerous other co-conspirators participated both as distributors of the drugs and as ultimate retail customers.
Multiple Conspiracies Claim
Appellants contend that, although the indictment charged them with participation in one ongoing conspiracy lasting from 1971 until 1973, the government at trial established the existence of several independent conspiracies. It is argued that the evidence demonstrated that Blase, Rossi, Rizzieri and Mengrone conducted totally independent distribution operations, drew on drug sources in addition to the Riccos, distributed narcotics for the Riccos during successive and unconnected periods of time, and dealt individually and separately with the Riccos without any conspiratorial connection among themselves on the same distributional level. This variance between indictment and proof, they contend, was fatally prejudicial. See Kotteakos v. United States, 328 U.S. 750, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946).
In assessing these claims we must bear in mind that the question of whether the evidence has established the single conspiracy charged in the indictment is primarily a factual issue to be determined by the jury. United States v. Finkelstein, 526 F.2d 517, 522 (2d Cir. 1975), cert. denied, 425 U.S. 960, 96 S. Ct. 1742, 48 L. Ed. 2d 205 (1976). Therefore our review of the proof, which is to be considered in the light most favorable to the government, United States v. McCarthy, 473 F.2d 300, 302 (2d Cir. 1972); United States v. Kahaner, 317 F.2d 459, 467 (2d Cir.), cert. denied, 375 U.S. 836, 11 L. Ed. 2d 65, 84 S. Ct. 74 (1963), is undertaken only to determine whether the evidence is sufficient to sustain the jury's finding of a single conspiracy. United States v. Calabro, 449 F.2d 885, 893 (2d Cir. 1971), cert. denied, 405 U.S. 928, 30 L. Ed. 2d 801, 92 S. Ct. 978 (1972); Dardi v. United States, 330 F.2d 316, 327 (2d Cir.), cert. denied, 379 U.S. 845, 13 L. Ed. 2d 50, 85 S. Ct. 50 (1964). From the evidence adduced at trial and set forth below the jury could properly have found as follows.
The conspiracy commenced in October or November of 1971, when Rossi and Blase began purchasing sizeable quantities of heroin from the Riccos. The deliveries of the narcotics were made personally by Ricco or Bragiole, who were routinely accompanied by Indiviglia. By July, 1972 Rossi and Blase had made eighteen such purchases of heroin from the Riccos and had received $20,000 from their resales to numerous narcotics customers.
In July, 1972 Rizzieri began working with Rossi in place of Blase, who was effectively phased out of the conspiracy. Ricco and Bragiole, upon being informed by Rossi of this personnel substitution, met with Rossi and Rizzieri and expressly agreed to continue supplying heroin to what was now the Rossi-Rizzieri distribution partnership. From July until December, 1972 Rossi and Rizzieri received forty to fifty deliveries of very high quality heroin from the Riccos in amounts ranging from an eighth of a kilogram to two kilograms. The Riccos continued their practice of delivering the narcotics personally, accompanied by Indiviglia. Rossi and Rizzieri diluted the heroin to "commercial" purity, and resold it to their customers. These resales occurred on approximately sixty occasions, involved quantities ranging from an eighth of a kilogram to one kilogram, and generated at least $200,000 during the latter half of 1972.
Another change in the conspiracy's membership occurred in January, 1973. Following a dispute over responsibility for a failed attempt to resell two kilograms of heroin, Rossi abruptly withdrew from his distributing relationships with the Riccos and with Rizzieri. Rizzieri continued to function as a distributor of the Riccos' heroin and cocaine until he was arrested on March 14, 1973 after selling one quarter kilogram of heroin obtained from Bragiole to an undercover agent.
The final phase of the conspiracy involved Mengrone's participation as a distributor of the narcotics. Mengrone originally owned and operated the Magic Carpet, a bar and restaurant in the Bronx in which he had observed the Riccos, Indiviglia, Rossi and Rizzieri meet several times a week and engage in secretive discussions during the period from September, 1972 through June, 1973. Following Rizzieri's arrest in March, 1973, Mengrone delivered a message to the Riccos, sent through Rizzieri's girlfriend, to the effect that Rizzieri was "going to stand up and do the time and that nobody had to worry, and . . . he . . . [would] not implicate anybody." Two months later Mengrone asked the Riccos to allow him to distribute narcotics for them. They consented and until his arrest in October, 1973 Mengrone actively solicited customers and participated in numerous attempted transactions.
Although each of the appellants claims to have been substantially prejudiced by proof of separate conspiracies,*fn4 Rizzieri's claim raises the only serious question, and we turn to it first. He contends that many of the so-called "Ricco distributors" were independent drug dealers in their own right, operating with sources and outlets for narcotics outside the Ricco organization. However, if the single conspiracy charged in the indictment is proved, the fact that there was also evidence relating to another conspiracy does not require reversal. United States v. Tramunti, 513 F.2d 1087, 1107-08 and n. 26 (2d Cir.), cert. denied, 423 U.S. 832, 46 L. Ed. 2d 50, 96 S. Ct. 54, 96 S. Ct. 55 (1975). Thus the admission of evidence showing that Rizzieri and the others may have engaged in narcotics transactions in addition to those involving the Riccos does not establish multiple conspiracies. United States v. Tramunti, supra.
Rizzieri also claims that the activities of the various distributors constituted "spokes" in the conspiracy entirely separate from his own participation, see Kotteakos, supra, and that he was prejudiced by the admission of ...