Appellants appeal from judgments of conviction for distribution of cocaine and conspiracy to distribute heroin and cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846, in the Southern District of New York, Goettel, J., on the grounds that the government failed to prove the existence of a single conspiracy and that the district court made erroneous evidentiary rulings. Affirmed.
Before Lumbard and Oakes, Circuit Judges, and Brieant, District Judge.*fn*
Orlando Delli Paoli, Richard Warme, and Victor Isaza appeal from judgments of conviction entered September 27, 1978, October 6, 1978, and October 12, 1978, respectively, after a three-week jury trial before Judge Gerard L. Goettel in the Southern District of New York on an indictment charging distribution of cocaine and conspiracy to distribute heroin and cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846. On appeal, appellants contend that the government's proof at trial established multiple conspiracies, and that each appellant was seriously prejudiced by the proof of other conspiracies in which he was not involved. Appellants also contend that the district court made several erroneous evidentiary rulings. Finding appellants' claims to be without merit, we affirm.
The central question on appeal is whether the jury could find that the evidence supported the charge of a single conspiracy. From an examination of the record, we conclude that the evidence showed that over a period of several weeks in early 1978, the defendants were acting together and knew they were acting together to distribute heroin and cocaine. The mastermind was Richard Warme, who sought to obtain for resale a steady supply of heroin and cocaine from a number of suppliers. Warme obtained quantities of cocaine from a partnership composed of defendants Isaza and Wayne Petrucha for resale to New York narcotics agents.*fn1 The proof also showed that Warme advanced $20,000 to defendant Delli Paoli for 1/2 pound of heroin, $20,000 which later disappeared into the pocket of a trusted confederate who absconded to parts unknown without delivering the heroin. Most of the important activity took place at three places in the Bronx: at Warme's residence, at a furniture store owned by Warme's mother-in-law, and at the Andrea Motel which was owned by the family of Delli Paoli.
On January 24, 1978, Detective Steven Caracappa of the New York Drug Enforcement Task Force went to an apartment in the Bronx. There a woman named Lorraine introduced Caracappa to Warme. Warme offered to sell Caracappa two kilograms of cocaine. Caracappa agreed. The following day, Warme again met with Caracappa at the same apartment, provided him with a sample of cocaine, and promised to provide him with heroin.
Warme was not able to deliver any drugs at that time. Caracappa, however, maintained contact with Warme who repeatedly promised that he would shortly have both heroin and cocaine. Thus on February 2, 1978, Warme explained in one of many tape-recorded conversations that he had not been able to supply the promised narcotics because a confederate had not done the "right thing on the other end." When Caracappa replied that he did not want to pressure Warme, Warme indicated that he wanted to go through with the deal but that he would have to "go there myself." Later, on February 14, 1978, when Warme indicated that there were still supply problems, Caracappa replied, "If there's a problem, you know I rather like back away from the thing. . . . if you don't want to do it, I don't want to push it." In later conversations, Warme continued to urge Caracappa to be patient because he expected to solve his supply problems shortly.
Finally, on the evening of February 21, 1978, Warme took Caracappa to the Twilight Lounge in the Bronx. There Warme introduced Caracappa to defendant Robert Bolella, whom Warme said was the man responsible for "hanging him up" on the deal. Although Bolella had already committed his heroin to someone else, he agreed to sell four ounces of cocaine to Caracappa.
On February 25, Warme, Bolella, and Caracappa met at Warme's house. Caracappa then drove Bolella to the home of Bolella's "connection" in Scarsdale to pick up one ounce of cocaine for $1,000. When Caracappa returned to Warme's house with Bolella, Caracappa paid Bolella for his help an additional $200, $100 of which Bolella paid to Warme.
On March 2, 1978, Delli Paoli met Warme at a furniture store belonging to Warme's mother-in-law, located at 3434 Tremont Avenue in the Bronx. After Delli Paoli left, Caracappa arrived. Thereafter, defendant Wayne Petrucha arrived with a sample of cocaine, which he gave to Warme and which Warme then gave to Caracappa. After receiving the sample, Caracappa agreed to purchase through Warme three or four ounces of cocaine at $1,400 per ounce later that night. Caracappa gave Warme $1,200 "front" money toward the purchase price and Warme turned the money over to Petrucha. That afternoon, defendant Bolella also visited the furniture store where he and Warme discussed with Caracappa a sale of heroin and additional amounts of cocaine. That evening, Caracappa, Warme, and Petrucha met again at the furniture store. Petrucha sold to Caracappa five ounces of cocaine for a total price of $7,000. Caracappa paid Warme $50 for his help.
On the evening of March 9, 1978, Caracappa, accompanied by undercover officer William Petraglia, drove with Warme to Warme's apartment at 1101 Throgs Neck Boulevard in the Bronx. Shortly after their arrival, defendant Wayne Petrucha came to the apartment, accompanied by defendant Victor Isaza. Petrucha told Caracappa that Isaza was "the connection." Caracappa then purchased from Petrucha and Isaza five more ounces of cocaine, this time at $1,200 per ounce. Isaza said that this cocaine was the same material Caracappa had purchased March 2, and that he and Petrucha could obtain for Caracappa large quantities of both heroin and cocaine. After Petrucha and Isaza left, Caracappa paid Warme $400 for his "cut on the deal."
On March 14, 1978, Warme, Caracappa, and Petraglia met again at the Crosstown Diner in the Bronx. There Warme told Caracappa and Petraglia that he had a heroin connection (Delli Paoli) who was associated with "Fat" Tony Salerno and the "Pleasant Avenue People", and that he would soon be able to provide seven ounces of white heroin for $11,000.
On March 16, 1978, Warme met Caracappa and Petraglia at the furniture store to discuss further the proposed heroin deal. His connection, he said, had just completed a $50,000 heroin deal. Later that night, Warme met with Caracappa and Petraglia at Damien's Bar in the Bronx. Delli Paoli arrived for a brief visit, during which time he looked at but did not speak with Caracappa. After Delli Paoli left, Warme informed the officers that the heroin deal had fallen through. Warme then assured them that he would have heroin available on Sunday, March 19, 1978.
On March 19, 1978, Caracappa and Petraglia travelled to the furniture store owned by Warme's mother-in-law. The officers gave Warme $11,000 front money for the seven ounces of heroin which he promised would arrive that evening. Warme then drove to the Andrea Motel in the Bronx, which was owned by Delli Paoli's family. After meeting with Delli Paoli, Warme returned to the officers and reported that the heroin had not yet arrived. He told them to meet him at the Colonial Inn in the Bronx. Bolella later picked up the officers at the Colonial Inn and brought them to Caesar's Restaurant in the Bronx, where he received a call from Warme reporting that the heroin had still not arrived.
Warme met with the undercover officers during the early morning hours of March 21, 1978 at his apartment. Warme returned $9,000 to the officers and explained that he had left $2,000 with his connection as a binder on the heroin which had still not arrived. Later that day, Warme asked for $9,000 back so that he could pay for the heroin, which he expected momentarily. Caracappa refused, telling Warme that he would have to receive something for his $2,000 before he advanced any more money.
On March 23, 1978, Warme again met with the undercover officers at the furniture store. After Warme explained his connection's pricing policies, Caracappa and Petraglia agreed to pay $20,000 "up front" and $15,000 after delivery for a 1/2 pound of heroin, which Warme expected to ...