The opinion of the court was delivered by: GOETTEL
Narcotics conspiracy investigations often reveal unusual stories, but it is doubtful that any prior case has had as bizarre a history as this one. Indeed, the scenario that has emerged from the numerous pretrial motions and lengthy hearings in this case is so extraordinary that, if submitted as a script for a movie under a title such as "The Colombian Connection," it would be summarily rejected as too implausible for consideration.
Act I "Pretenses and Promises"
In a sense the story started at Kennedy Airport on December 10, 1977, when some Customs officers noted that a returning passenger, who had already cleared customs inspection, was extremely nervous. The man, Louis F. Pellon, Spanish born, was ostensibly a respectable real estate developer and contractor in Westchester County. Whether his nervousness was real or feigned is debatable, but that he had reason to be apprehensive is clear. In any event, during his brief discussion with the Customs agents Pellon indicated that he might have some information about narcotics smuggling and would subsequently get together with them to discuss it. Pellon's claim of knowledge was well founded. In fact, the following day his business partner and personal associate, Vincent D. Carilli, was arrested at the Miami International Airport while returning to this country from Colombia, South America, when Customs officials found a pound of pure cocaine strapped to his body.
Pellon's proposed meeting with Customs agents did not immediately take place. Instead, both Pellon and Carilli (who was by then free on bail) talked with attorney Howard Rukeyser, who had represented their businesses in civil matters in Westchester County. Rukeyser in turn arranged a meeting with Special Agent Fred Marano of the Drug Enforcement Administration (DEA), an official with whom he had previously dealt on behalf of other clients.
By a strange coincidence, Marano was one of a group of agents who already had an undercover investigation of Carilli going in Westchester County. In October of 1977, one Harold Lane, a convicted felon awaiting sentencing on a crime not related to narcotics, had advised Assistant United States Attorney JoAnn Harris that he believed he could assist the Government in uncovering a local cocaine ring. Marano's group was assigned the matter. By December, 1977, however, the DEA agents had no indication that Carilli was a major or important drug dealer and, while they had heard that he had a Spanish partner, they knew very little about Pellon.
The meeting between Rukeyser, his clients Pellon and Carilli, and the DEA agents proved quite dramatic. After the defendants were given Miranda warnings, Pellon indicated that he and his partner could be instrumental in setting up the arrest of a Colombian smuggler named Ernesto Castrillion, and that Castrillion could be caught while in possession of over 500 pounds of pure cocaine. (The wholesale value of such an amount would be many millions of dollars.) Pellon also advised the agents that Castrillion and his associates owned ships and airplanes that were used to smuggle cocaine, marijuana and contraband coffee into this county.
Indeed, Pellon reported, the Colombians had just smuggled over a hundred pounds of cocaine into Miami.
In exchange for facilitating this exceptional seizure, Pellon and Carilli wanted the Florida charges against Carilli dropped. Although somewhat skeptical about the ability of their informants to deliver, the DEA agents were understandably excited over the prospect of catching a major Colombia cocaine dealer who, they were told, was responsible for one-third of all illicit shipments into the United States. Reluctant to play all their cards, however, the agents did not advise Pellon and Carilli of their pending undercover investigation in Westchester.
The DEA could not independently proceed on Pellon and Carilli's enticing proposition. Carilli was already under federal indictment in Florida, and the United States Attorney's Office for the Southern District of New York was already aware, through the Lane investigation, that Carilli had sold an ounce of cocaine in this district, for which he would probably be indicted here. Consequently, a meeting was scheduled for all the parties, including representatives of the United States Attorney's Office, for December 21st.
Rukeyser and Pellon, however, without giving an explanation, cancelled that meeting. Instead, they met with the Customs agents, as Pellon had originally planned. (Carilli was not present at this meeting and no disclosure of his Florida indictment was made.) Pellon made the same offer to help the Government catch a major Colombian cocaine dealer, but his Quid pro quo this time was different. He wanted, rather than assistance for Carilli, money and the airplane which he said Castrillion would be using to smuggle his cocaine into Florida. Pellon also told Customs that he did not want his information passed on to DEA agents because he questioned their integrity,
and that he wanted to trap the Colombians because they had previously bilked him out of a large sum of money and he was seeking revenge. The Customs officials, somewhat skeptical, subsequently talked with Pellon only over the telephone, and when he boldly insisted upon advance payment for his assistance and free reign to operate without interference in Colombia, they terminated their contracts with him.
Meanwhile, Pellon's continuing negotiations with the DEA agents had become difficult. He had strong ideas about how the Castrillion caper should be staged, and the agents found his intransigence unacceptable. Negotiations between them gradually broke off. Rukeyser, however, continued to negotiate on behalf of Carilli, and in February, 1978, Carilli provided the DEA and the United States Attorney's Office with some rather interesting information.
As Carilli described it, Pellon had previously been to Colombia in August, 1977, and after some unsuccessful discussions with certain Colombian cocaine dealers, he had been introduced to Ernesto Castrillion. A short time later, Castrillion visited Pellon at his home in Mt. Vernon, New York. He stayed a month with Pellon and gave Pellon a present of a half a pound of cocaine, as a showing of "good faith." (This half pound of cocaine provided the ounce which was distributed by Carilli and Pellon to Harold Lane in September of 1977.)
Carilli went on to say that Castrillion had promised to supply Pellon substantial quantities of cocaine during the latter part of that year. (Whether he did so is a matter still in dispute.) According to Carilli's story, he and Pellon went to Colombia, armed, and negotiated with Castrillion for a large quantity of cocaine. Castrillion supposedly returned to Miami in December with a substantial quantity, which was either distributed to Cubans in Miami, or to Pellon.
Prior to his cooperation with DEA, Carilli had indicated to Lane and other undercover DEA sources that he thought he might be in a position to deliver substantial amounts of cocaine in the near future. The agents also had information that Carilli's father, Armand, was involved in the drug trade. In February, when Carilli disclosed his prior activities to the prosecution, the agents did not reveal to him that his story was partially corroborated by their independent undercover investigation.
At the same time that Carilli was supplying the information concerning his and Pellon's cocaine activities, the United States Attorney's Office placed Harold Lane before a Grand Jury. Lane described his cocaine transactions with the Carillis and Pellon, including the delivery of the one ounce of cocaine in 1977, and the boasts of their ability to deliver substantial amounts in the future. Assistant United States Attorney Harris, although interested in the possibility of developing a larger case, was unwilling to take any steps that might unnecessarily prejudice the cases already secured through Lane's testimony against Pellon and Carilli. Moreover, by this point it had become apparent to everyone involved that only Pellon, if anyone, had the ability to set up the arrest of Castrillion, and Pellon was no longer cooperating with the Government. (Even attorney Rukeyser could not control Pellon's actions during this period.)
The Government thought it had a solution to the problem. With Carilli's statements (which had been tape recorded) and the testimony of Harold Lane, supported by recordings of his telephone conversations with Carilli, the Government felt it had sufficient evidence to indict Pellon, with the possibility that this leverage might induce him to cooperate more readily. The assumption was that Carilli, in order to get his plea bargain in Florida, would be willing to testify against Pellon. In discussions with Carilli, Ms. Harris had orally agreed to help him with respect to his Florida case in return for his cooperation, and had told him that his testimony must be full, complete and straightforward. She also specifically had declined to promise that Carilli's information would not be used against Pellon. Carilli had also been advised that a written cooperation agreement to this effect would be signed.
The Government's assumption that Carilli would testify against Pellon proved erroneous. Rukeyser failed to produce Carilli for further interviews in the United States Attorney's Office, or for an appearance before the Grand Jury, and Ms. Harris was advised that Carilli had gone to Florida in an effort to work out a new and better deal there for himself. Ms. Harris told Rukeyser that the Government would proceed without Carilli.
A complaint was prepared for the arrest of Pellon in mid-February, 1978. It was based solely upon the statements of Carilli, the Government having up to that point concealed from the defendants its parallel investigation involving informant, Harold Lane. The complaint was filed and Pellon surrendered voluntarily, appearing without an attorney. He was interviewed by Ms. Harris and, in essence, admitted knowing a lot about the cocaine trade, but denied personal involvement. He also specifically refused to answer a number of questions. Efforts were again made to get Carilli before a Grand Jury, but he continued to be unavailable. At the same time, the DEA became aware, for the first time, that the Mt. Vernon Police Special Investigation Unit had an active narcotics investigation of Pellon and Carilli. Rather than cooperating with the police and pooling information, however, the DEA stubbornly told them to take no steps that might interfere with the ongoing federal investigation.
Carilli's recalcitrance notwithstanding, the Government forged ahead and obtained an indictment against Pellon by placing DEA Agent Marano before the Grand Jury. He described Carilli's earlier statements incriminating Pellon in cocaine transactions, as well as certain passport violations.
Immediately prior to doing this, however, Harris advised Rukeyser about the additional evidence from the undercover investigation which could be used against Pellon. The indictment was returned on March 7th, charging Pellon with a narcotics conspiracy, possession of the half pound of cocaine received from Castrillion in August of 1977, the distribution of the one ounce of cocaine to Lane, and one passport violation. Carilli was named as an unindicted coconspirator.
The Government continued its efforts to bolster its case against Pellon by bringing Carilli before a Grand Jury. Ms. Harris became convinced that Carilli's whereabouts were being concealed by attorney Rukeyser and Pellon, for Pellon's benefit. In fact, Carilli had returned again to Florida with Pellon and they had become involved in some unusual transactions that were soon to become known, at least partially, to the prosecution.
On March 14, 1978, having returned hastily from Florida, Carilli was finally called before a Grand Jury. He appeared with a new actor in the drama, Florida attorney Jack Attias, who was representing Carilli on the federal charges in that state. Carilli acknowledged recently having been in Miami with Pellon, denied that there had been a concerted effort to keep him from appearing before the Grand Jury, but claimed privilege with respect to certain events which had occurred during his travels. A couple of days later, immediately prior to Pellon's arraignment on the indictment, Pellon appeared with both Attias and Rukeyser, and the attorneys informed the United States Attorney's Office that they were jointly representing both Pellon and Carilli in their existing legal problems. They again offered cooperation and proposed the deal that had been discussed a few months earlier. This new conciliatory effort, of course, did not surprise Ms. Harris since she acknowledged that indicting Pellon might put "leverage" on him to cooperate.
As the discussions became more serious, the Chief of the Narcotics Unit of the United States Attorney's Office, James Lavin, entered the picture. The Government attorneys were informed that Castrillion was in Florida and that he could be caught with 100 to 200 pounds of pure cocaine, as well as, perhaps, his airplane. They were also told, however, that it was urgent that a deal be struck quickly since the cocaine was being rapidly sold. In exchange for their help, the defendants wanted Pellon's indictment dropped, no additional charges here against Carilli or his father, and assistance with respect to the Florida prosecution of Carilli. The defendants did not explain, nor surprisingly did the United States Attorney's Office inquire, how they knew of Castrillion's presence in Florida, the exact amount of cocaine present, or the rate at which it was being sold.
These facts were not to remain a complete secret long. A day or two later, while the prosecution was in the process of preparing a cooperation agreement, it learned from the Mt. Vernon police that a warrant had been issued in Dade County, Florida, charging Pellon and Carilli with conspiracy to commit murder and conspiracy to violate the state narcotic laws. The DEA and the Mt. Vernon police cooperated in the arrest of the defendants on the warrant. They learned that the Dade County charges stemmed from an alleged attempt to rip off a large amount of cocaine and to murder the supplier, apparently to avoid paying for it. Further investigation revealed that on March 13th, following a tip from an informant, Dade County authorities had arrested certain associates of these defendants, including Sidney Pope, a defendant in this action, aboard a ...