March 1, 1979
UNITED STATES OF AMERICA, APPELLEE,
JOSEPH CIFONE AND JOSEPH SAMUEL PONTILLO, DEFENDANTS-APPELLANTS
Appeal from the United States District Court for the Southern District of New York.
Present: HON. WILLIAM H. TIMBERS
HON. THOMAS J. MESKILL Circuit Judges
HON. LEE P. GAGLIARDI United States District Judge Sitting by Designation
This cause came on to be heard on the transcript of record from the United States District Court for the Southern District of New York, and was argued by counsel.
ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgments of said District Court be and they hereby are affirmed as to both appellants on all counts.
With regard to the claims raised by Cifone, his claim of ineffective assistance of counsel fails to rise to the standard set forth by this Court in United States v. Wight, 176 F.2d 376, 379 (2 Cir. 1949), cert. denied, 338 U.S. 950 (1950), where we held that unless counsel's representation was such as to make the trial "a farce and a mockery of justice" mere allegations of incompetency were insufficient. While Cifone's counsel's strategy may not have been particularly brilliant and his questioning of Salvato with regard to the fact that Cifone had been convicted of cocaine trafficking may have been unnecessary, the entire representation was not such as to "shock the conscience of the court." Id. Accord, United States v. Bubar, 567 F.2d 192, 202 (2 Cir.), cert. denied, 434 U.S. 873 (1977).
Cifone's argument that his indictment should have been dismissed because the death of Finn prevented him from cross-examining Finn as to whether or not the package Finn obtained from Salvato was the same package that Finn turned over to the agents is without merit. There is no evidence to suggest that a switch occurred and there is no reason suggested as to why Finn would have substituted cocaine for what may have been, according to Cifone, only sugar.
Finally, Cifone's claim with respect to the court's instruction to the jury on the conspiracy count clearly is without merit. By instructing the jury that, once a conspiracy is formed it is presumed to continue until its objectives are achieved or there has been an affirmative act of termination by its members, the district court did not shift the burden of proof to defendant to prove that he did not join the conspiracy. The entire charge makes it clear that the participation of each member in the conspiracy had to be established by the government.
With regard to the claims raised by Pontillo, we find them to be wholly without merit. Pontillo contends that, under the Court's holding in United States v. Check, 582 F.2d 668 (2 Cir. 1978), the testimony of Agent Smith constituted impermissible hearsay. However, Check involved testimony by an agent as to what he said to Cali who did not testify at trial, testimony which in essence conveyed the substance of Cali's statements to the agent. Here, however, Agent Smith testified to his own belief that Finn was talking to Pontillo on the phone and to certain verbal acts. These do not constitute impermissible hearsay under the holding in Check. Moreover, unlike Check, the district court here struck all of the statements that were hearsay.
As for Pontillo's objections to the court's charge on reasonable doubt, not only did the court explicitly charge the jury that a defendant is presumed to be innocent -- the major flaw with the trial court's instructions in Taylor v. Kentucky, 436 U.S. 478 (1978) -- but the court here clearly and concisely charged the jury on reasonable doubt, defining it with great specificity. The court's charge here certainly was sufficient under Taylor.
With respect to Pontillo's claim of error in the admission of a taped conversation involving Finn, Salvato and a third party, the record shows that the conspiracy was continuing up until the time of Finn's death. Thus, the admission of this conversation was proper and was not merely cumulative evidence under Rule 403 of the Federal Rules of Evidence.
Pontillo fails to explain how the action of the district attorney in persuading the expert to re-test the cocaine prejudiced his defense. Although the district attorney should have asked the court for permission to conduct such a test, the court presumably would have granted it if requested. Under these circumstances, there was no reversible error.
Finally, Pontillo argues that his motion for a mistrial or severance should have been granted as a result of the actions of Cifone's attorney. Since Pontillo fails to explain how the strategy of Cifone's attorney was at odds with his own defense, however, we hold that the court's ruling on these motions was not erroneous.
Affirmed. We order that the mandate issue forthwith.
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