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United States v. Martino

decided: November 5, 1981.


Appeals from judgments of conviction entered after a jury trial in the United States District Court for the Southern District of New York, MacMahon, Chief Judge, for conspiracy to distribute heroin and cocaine in violation of 21 U.S.C. § 846, and for distribution of and possession with intent to distribute heroin in violation of 21 U.S.C. §§ 812, 841. Affirmed .

Before Lumbard, Oakes and Kearse, Circuit Judges.

Author: Kearse

Defendants Vincent Martino, John Torrioni, Policardo Despaigne, a/k/a "Paulie," Odell Miller, a/k/a "Pluggy," John Radice, and John Perry appeal from judgments of conviction entered after a jury trial in the United States District Court for the Southern District of New York, Lloyd F. MacMahon, Chief Judge. Count One of the three-count indictment charged all six defendants with conspiring to distribute heroin and cocaine between January and October 1980 in violation of 21 U.S.C. § 846 (1976). Count Two charged Martino with distributing and possessing heroin with intent to distribute it on May 1, 1980, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A) (1976); and Count Three charged him with possession of heroin with intent to distribute it on June 12, 1980, in violation of the same sections. The jury found each defendant guilty as charged.

Martino was sentenced, on each of the three counts, to a twenty-year term of imprisonment, a six-year term of special parole, and a $50,000 fine, all terms and fines to be concurrent. Miller was sentenced to twenty years' imprisonment and a $50,000 fine. Despaigne and Radice received sentences of ten years' imprisonment and fines of $5,000. Torrioni and Perry were sentenced under the Federal Youth Corrections Act, 18 U.S.C. §§ 5005-5026 (1976), to indeterminate terms of custody for treatment and supervision.

On appeal defendants challenge a number of trial and pretrial rulings, including the court's refusal to suppress a large quantity of heroin found in a brown paper bag in Martino's back yard. Finding no merit in any of the defendants' contentions, we affirm the convictions.


The proof at trial established that Martino was a substantial wholesale dealer in heroin and cocaine. He purchased large quantities of both drugs from Radice and Perry, and purchased cocaine from Despaigne. Martino sold heroin to Despaigne and Miller. Torrioni served as an aide to Martino. The trial evidence consisted principally of the testimony of Frank DeFelice, a paid confidential informant who had posed as a buyer of substantial quantities of heroin and cocaine and purchased various amounts of heroin from Martino; the testimony of a number of special agents of the United States Drug Enforcement Agency ("DEA") who had conducted surveillances of one or more of the defendants; tape recordings and transcripts of conversations to which one or more of the defendants were party, including some fifty conversations intercepted during a court-authorized wiretap of the telephone at Martino's narcotics headquarters during a two-week period in June 1980; and a variety of physical evidence. The physical evidence included heroin obtained from Martino, Radice, and Perry, having a retail value of approximately $1,000,000; and more than 1,000 rounds of ammunition, a bullet-proof vest, and narcotics trafficking tools such as cutting agents, plastic bags, and testing equipment, all seized from a "stash pad" maintained by Radice and Perry. Because only limited attacks are made on the sufficiency of the evidence, a short summary of the pertinent events proven at trial will suffice here.*fn1

In the early spring of 1980, DeFelice was taken by a companion, Arthur LaCilento, to Martino's Bronx apartment, which then served as Martino's narcotics headquarters, and was introduced to Martino and Torrioni. At that first meeting there was a large pile of white powder, apparently cocaine, on a sheet of glass on Martino's living room table; Martino dipped a straw into the powder and sniffed some into each nostril, then invited DeFelice to do the same. During that meeting LaCilento asked if Martino had "that thing" for him, whereupon Martino produced a small plastic envelope containing a white substance, placed it in a package of matches, and handed it to LaCilento.

In the days and weeks that followed, DeFelice met with Martino a number of times to discuss the possible purchase of heroin and cocaine by DeFelice from Martino, and the quality of heroin that Martino could supply.*fn2 On May 1, DeFelice purchased three ounces of heroin from Martino. Other negotiations followed. On one occasion, when DeFelice sought to purchase one-half ounce of pure heroin for $5,000, Martino attempted to get it from a "couple of his connections," but was unsuccessful and told DeFelice he could supply a full ounce of pure heroin the next day for $11,000. When DeFelice showed up the next day with only $5,000, asking again for only one-half ounce, Martino became angry because he had needlessly caused his connections to "go to the stash." One week later, on June 12, DeFelice returned to Martino's apartment with $11,000, asking for a full ounce of pure heroin and hoping to cause Martino to travel to one of his sources to obtain it. Martino, however, had an ounce of heroin in his apartment that he assured DeFelice was pure. No sale was consummated because when DeFelice (whose goal was not to make a purchase but to cause Martino to contact his connections) questioned whether the heroin was pure, Martino became angry and told DeFelice to go away and not to return.

In the meantime, as discussed in greater detail in Part II.A. infra, the government had obtained court authorization to place a wiretap on the telephone in Martino's apartment. The tap went into operation on June 2 and was continued for two weeks. Some fifty conversations relating to narcotics transactions*fn3 were intercepted, including seventeen conversations between Miller on the one hand, and Martino, Torrioni, or an unidentified woman from Philadelphia on the other, eleven conversations between Despaigne and Martino, and four conversations between Perry and either Martino or Torrioni.

On August 8, 1980, DeFelice renewed contact with Martino to discuss the purchase of one-eighth of a kilogram of pure heroin and to discuss the availability of cocaine. Martino persuaded DeFelice to accept a lower quality heroin that he had available, and on that date sold DeFelice one-eighth of a kilogram of 66.1% pure heroin. In addition, he provided DeFelice with a sample of 93.7% pure cocaine. The delivery of these narcotics took place at a rendezvous to which Martino was driven by Radice and Perry.

On August 19, Martino agreed to sell DeFelice one kilogram of pure heroin for $260,000. On August 20, however, Martino reported that although his sources had been expecting a delivery of thirty kilos of heroin, they presently had only one-half kilo on hand. DeFelice agreed to purchase this amount for $150,000, telling Martino, falsely, that the money was in the trunk of DeFelice's car. Martino accepted DeFelice's representation and said that they would have to wait for a telephone call. After the call was received, Martino and DeFelice entered the latter's car at approximately 6:10 p.m., with Martino driving. Martino proceeded to drive so evasively that only one car, carrying two of the nine DEA agents assigned to follow him and DeFelice, was able to keep up with them to their eventual destination, which was Martino's house in Queens.

On arriving at Martino's house, Martino and DeFelice entered Martino's yard, which was enclosed by a four-foot high, chain-link fence, leaving the gate open. Immediately Perry and Radice arrived in another car and double-parked near the open gate. Martino walked to the car and Radice handed him a paper bag. Martino placed the bag inside his shirt, and Radice and Perry drove away. Martino reentered the yard, placed the paper bag on a chair and put a telephone book over it, and turned to DeFelice and said, "There is your stuff." DeFelice stated that he would test it, and he and Martino then walked to the trunk of DeFelice's car where DeFelice removed some heroin testing equipment and gave the DEA agents the signal to arrest Martino. The agents arrested Martino, DeFelice told Agent John Toal that the heroin was in the chair in the yard, and Toal immediately accompanied DeFelice through the open gate to the yard to retrieve the bag, which was later determined to contain approximately one-half kilo of 87.8% pure heroin. Toal seized the bag and looked inside it, then immediately left to pursue Radice and Perry, just as another agent arrived in an undercover taxicab. Toal and the latter agent drove off in pursuit of Radice and Perry, and shortly encountered the two driving back toward Martino's house. After various automotive maneuvers and collisions, Radice and Perry were stopped and arrested.

Approximately one month later, Torrioni, Despaigne, and Miller were arrested. When confronted by DEA agents, Torrioni attempted to throw away four playing cards that he held in his hand. These cards contained traces of cocaine. When Despaigne was arrested, he gave the authorities a false name, and produced a driver's license in that name. Upon Miller's arrest outside his apartment, agents searched his apartment and found an envelope bearing the notation "4 oz".

This prosecution followed. Prior to trial, a number of the defendants moved to suppress various items of evidence that had been seized. Pertinent to this appeal are Martino's motion to suppress the recordings and transcripts of conversations intercepted pursuant to the court-ordered wiretap of his telephone on grounds that the statutory prerequisites for a wiretap had not been met, Martino's motion to suppress the heroin seized from his yard following his arrest on the ground that the seizure and search of the bag violated his rights under the Fourth Amendment to the Constitution, and Miller's motion, on similar constitutional grounds, to suppress the envelope seized from his apartment following his arrest. The district court denied these motions. After hearing argument, the court determined that the wiretap had been properly authorized and implemented pursuant to 18 U.S.C. § 2518 (1976). After an evidentiary hearing with respect to the seizure of the heroin, the court found that exigent circumstances existing at the time of Martino's arrest justified the warrantless entry into the yard to seize the heroin. After an evidentiary hearing with respect to Miller's motion, the court found that Miller had consented to the search of his apartment and that in any event, exigent circumstances permitted a warrantless entry to prevent the removal or destruction of evidence.


On this appeal the defendants make a variety of arguments. Martino and Miller challenge the district court's denial of their motions to suppress. Radice, Perry, and Despaigne argue that the proof showed multiple conspiracies rather than a single conspiracy, and that the jury should have been instructed to that effect. And Miller and Torrioni contend that the evidence presented at trial was insufficient to establish that they were members of the conspiracy. We find no merit in these or any of the defendants' other arguments.

A. The Wiretap

Martino's motion for an order suppressing the recordings of conversations on his telephone made pursuant to the court-authorized wiretap asserted (1) that the information given in support of the May 28 request for the wiretap authorization was stale, (2) that there was insufficient basis for the court authorization of the tap because the government could have used less intrusive means of obtaining evidence, and (3) that the execution of the wiretap warrant was impermissibly delayed. We conclude that the motion was properly denied.

The procedure for obtaining federal authorization to intercept telephonic communications is set forth in 18 U.S.C. § 2518. In pertinent part, § 2518(3) provides that upon a proper written application,

the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire or oral communications within the territorial jurisdiction of the court in which the judge is sitting, if the judge determines on the basis of the facts submitted by the applicant that-

(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter; (§ 2516(e) lists various narcotics dealing offenses, including those charged here);

(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception;

(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; ...

It is elementary that the probable cause needed to validate the issuance of an authorization for a wiretap must exist at the time of issuance. United States v. DePalma, 461 F. Supp. 800, 809 (S.D.N.Y.1978); see United States v. Kirk, 534 F.2d 1262, 1274 (8th Cir. 1976), cert. denied, 430 U.S. 906, 97 S. Ct. 1174, 51 L. Ed. 2d 581, 433 U.S. 907, 97 S. Ct. 2971, 53 L. Ed. 2d 1091 (1977); United States v. Tortorello, 342 F. Supp. 1029, 1037 (S.D.N.Y.1972), aff'd, 480 F.2d 764 (2d Cir.), cert. denied, 414 U.S. 866, 94 S. Ct. 63, 38 L. Ed. 2d 86 (1973). Cf. Sgro v. United States, 287 U.S. 206, 210-11, 53 S. Ct. 138, 140, 77 L. Ed. 260 (1932) (search warrant); United States v. Perry, 643 F.2d 38, 49-50 (2d Cir. 1981) (search warrant). See 1 LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 3.7(a) (1978). The determination of whether information presented in support of an application is sufficiently current to support a finding of probable cause is one that must be made on the basis of the facts of each case. Sgro v. United States, supra; United States v. Diecidue, 603 F.2d 535, 560 (5th Cir. 1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1345, 63 L. Ed. 2d 781, 446 U.S. 912, 100 S. Ct. 1842, 64 L. Ed. 2d 266 (1980). Although many factors will have some relevance, see 1 LaFave, supra, § 3.7(a), the principal factors in assessing whether or not the supporting facts have become stale are the age of those facts and the nature of the conduct alleged to have violated the law. Where the supporting affidavits present a picture of continuing conduct or an ongoing activity, as contrasted with isolated instances of illegal acts, the passage of time between the last described act and the presentation of the application becomes less significant. United States v. Hyde, 574 F.2d 856 (5th Cir. 1978); Mapp v. Warden, 531 F.2d 1167, 1171-72 (2d Cir.), cert. denied, 429 U.S. 982, 97 S. Ct. 498, 50 L. Ed. 2d 592 (1976); United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972).

In the present case District Judge Pierre Leval issued the warrant authorizing the wiretap on Martino's telephone, making the probable cause determinations required by the statute. His findings, which are entitled to deference, see, e.g., United States v. Perry, supra; United States v. Jackstadt, 617 F.2d 12, 13 (2d Cir.), cert. denied, 445 U.S. 966, 100 S. Ct. 1656, 64 L. Ed. 2d 242 (1980); Mapp v. Warden, supra, are amply supported by the facts presented in the affidavit of DEA Special Agent Martin Maguire. That affidavit, which has in no way been impugned by Martino, relied in large part on information provided by two persons: one was DeFelice, who was not identified by name, but was described as a confidential informant who had already supplied DEA agents with information on three occasions leading to six arrests and six convictions for violations of federal narcotics laws, see Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); the other person was LaCilento, the companion who had introduced DeFelice to Martino. LaCilento, an unknowing target of the investigation, had had several conversations with DEA Special Agent Ronald Catanese, who was operating in an undercover capacity. The Maguire affidavit showed that on a number of occasions between March 27, 1980, and May 6, 1980, Martino was engaged in narcotics trafficking. On March 27, DeFelice and LaCilento observed in Martino's apartment a large quantity of cocaine and about $10,000 in small bills. During that visit, Martino received three drug-related telephone calls, apparently from three different persons; Martino told one caller that he owed Martino $38,000. On March 28 and April 3, LaCilento told Catanese that Martino was his source for heroin and high quality cocaine. On May 1, DeFelice purchased heroin from Martino. On May 6, DeFelice made his final payment for the heroin purchased on May 1, and observed in Martino's apartment two ounces of powder that appeared to be cocaine. On that date, Martino told DeFelice that Martino could sell two kilograms of heroin for $90,000 within the next ten days.

The recitation of these facts showed an ongoing operation and a continuing pattern of conduct. It quite adequately established that probable cause existed for the issuance of the warrant on May 28, despite the fact that the latest event described occurred on May 6. As concluded by Chief Judge MacMahon in his denial of Martino's motion to suppress, "(t)he pre-wiretap investigation spanned three months and uncovered evidence of an ongoing drug-trafficking conspiracy that would not turn stale after a mere three-week hiatus."

Martino's next contention, that other investigative techniques should have been used in preference to a wiretap, fares no better. Although § 2518(3)(c) requires a finding that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried, ...," the statute does not require that all possible techniques be tried before a wiretap may be authorized. E. g., United States v. Vazquez, 605 F.2d 1269, 1282 (2d Cir.), cert. denied, 444 U.S. 981, 100 S. Ct. 484, 62 L. Ed. 2d 408 (1979), 444 U.S. 1019, 100 S. Ct. 674, 62 L. Ed. 2d 649 (1980); United States v. Fury, 554 F.2d 522, 529-30 (2d Cir.), cert. denied, 433 U.S. 910, 97 S. Ct. 2978, 53 L. Ed. 2d 1095 (1977), 436 U.S. 931, 98 S. Ct. 2831, 56 L. Ed. 2d 776 (1978); United States v. Hinton, 543 F.2d 1002, 1011 (2d Cir.), cert. denied, 429 U.S. 980, 97 S. Ct. 493, 50 L. Ed. 2d 589 (1976), 429 U.S. 1051, 97 S. Ct. 764, 50 L. Ed. 2d 767, 429 U.S. 1066, 97 S. Ct. 796, 50 L. Ed. 2d 783, 430 U.S. 982, 97 S. Ct. 1677, 52 L. Ed. 2d 376 (1977). As we stated in United States v. Fury,

the purpose of these "other investigative techniques" requirements "is not to foreclose electronic surveillance until every other imaginable method of investigation has been unsuccessfully attempted, but simply to inform the issuing judge of the difficulties involved in the use of conventional techniques." ... Moreover, the required showing is to "be tested in a practical and commonsense fashion." 1968 U.S.Code & Admin.News, supra, at p. 2190. In short, the requirement is "simply designed to assure that wiretapping is not resorted to in situations where traditional investigation techniques would suffice to expose the crime." United States v. Kahn, 415 U.S. 143, 153 n.12, 94 S. Ct. 977, 982, 39 L. Ed. 2d 225 (1974).

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