Appeal from conviction of conspiracy, and possession and importation of marijuana and quaaludes with intent to distribute, after a jury trial before Jack B. Weinstein, Chief Judge of the United States District Court for the Eastern District of New York. Affirmed.
Before Feinberg, Chief Judge, Lumbard, Circuit Judge, and Bartels, District Judge.*fn*
Defendant Joseph Dazzo appeals from a judgment of conviction in the United States District Court for the Eastern District of New York after a jury trial before Jack B. Weinstein, Chief Judge. Appellant was convicted of conspiracy to distribute a substantial quantity of marijuana in violation of 21 U.S.C. § 846, possession with intent to distribute of a substantial quantity of marijuana and methaqualone in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and importation of a substantial quantity of marijuana and methaqualone in violation of 21 U.S.C. §§ 952(a), 960 and 18 U.S.C. § 2. The judge sentenced appellant to a five-year prison term on each of these three counts, to be served consecutively, cumulative fines amounting to $45,000, and lifetime special parole. Appellant is incarcerated pending the outcome of this appeal.
The evidence at trial established the existence of an extensive conspiracy to import large quantities of marijuana into New York from Colombia between November 1977 and November 1978. The marijuana was smuggled into the United States on a trawler, the "Terry's Dream," which was towed into port by the "Bill Mather," a tugboat. The testimony of Jesus Vega, a Coast Guard officer, and Robert De Grande, an individual recruited to serve on the "Terry's Dream" during its smuggling operations, indicated that this method was repeatedly used to bring marijuana into the United States. The operation came to an end, however, when both vessels were seized by the Coast Guard on the night of November 11-12, 1978.*fn1 A search of the vessels and vehicles revealed approximately 23 tons of marijuana and one-half million methaqualone tablets worth more than $15 million. No one was arrested at the time of the seizure because those involved had fled the premises shortly before.
Fifteen individuals, including appellant, were subsequently indicted for various narcotics violations. See United States v. Saint Prix, -- - F.2d -- , -- , Nos. 81-1214 to -1217, (2d Cir. February 22, 1982). Before trial, however, appellant and Richard Mastrangelo were granted severances due to the unavailability of their counsel.
Appellant was linked to this conspiracy through evidence that he had purchased the "Bill Mather."*fn2 According to Frederick Ardolino, a commercial fisherman and boat surveyor in Brooklyn who testified under a compulsion order, appellant approached him about the purchase of a small tugboat in late 1977 or early 1978. Appellant bought the "Victory" from Ardolino, but it developed engine trouble and sank on the date of purchase.
Shortly after this abortive transaction, appellant again approached Ardolino about purchasing a tugboat for his friend, "John Ward." In fact, "John Ward" was really appellant's friend, John Bennett. "Ward" told Ardolino that he was interested in a small tugboat to tow oil barges, that he did not want to spend more than $65,000, and that he wanted the vessel as soon as possible. "Ward" also told Ardolino that he was interested in buying some deep waterfront dockage in Long Island that was easily accessible from the ocean.
In January 1978, Ardolino, his cousin James Crispino, who was appellant's friend, "Ward," and two other individuals flew to Norfolk, Virginia to inspect the "Bill Mather." Appellant joined this group in Virginia, according to Ardolino. On January 30, 1978, the group of purchasers, including appellant, went to a shipyard in Norfolk to view the "Bill Mather." A shipyard representative, Alfred Jensen, identified appellant as a member of the group. The group told Jensen that it had a contract to haul garbage barges in New York and asked whether the "Bill Mather" could go 20 miles out to sea. After returning the next day for a test run, the group had the boat hauled out of the water to inspect the bottom and ultimately had steel plates installed to protect the bow area from ice. The cost of hauling the boat and installing the shields was approximately $2,000.
In early February 1978, the group, including appellant, purchased the "Bill Mather" for $59,000. Because the Norfolk shipyard would not accept cash, "Ward" obtained a cashier's check at a Norfolk bank. The check was only issued, however, after Ardolino offered his identification. "Ward" then signed the bill of sale on behalf of J & L Towing, the purchaser. Ardolino thereupon received between $600 and $750 in cash plus expenses for his services.
Later in February, the "Bill Mather" arrived in New York from Norfolk. Because of ice formations, the boat had to stay at Ardolino's dock for approximately one week before proceeding to Yancarib Marina, where the "Terry's Dream" was anchored. During this period, appellant came to Ardolino's dock to congratulate "Ward" on obtaining the tug.
Appellant was also linked to the conspiracy through his handling of repairs on the "Bill Mather." In April 1978, the "Bill Mather" arrived at Muller's boatyard in Brooklyn for repairs. "Ward" had previously contacted Ardolino about this repair work and stated that he was not concerned with price.
Appellant and two other men brought the "Bill Mather" to the boatyard. In dealing with boatyard employees, appellant used the names "John Ward" and "John Ward, Jr." Appellant also falsely stated to the yard foreman, Jim Muller, that the "Bill Mather" was under contract with New York City to tow garbage scows. During the two weeks in which repairs were performed, appellant came to the boatyard six to twelve times. At those times, appellant spoke with Muller about what work had been performed, what needed to be done, and what the repairs would cost. After completion of the initial repairs, appellant authorized several additional repairs on the vessel after receiving cost estimates from Muller. Appellant was identified not only by Jim Muller but also by another employee at the boatyard, Kathy Muller.
On April 25, 1978, the cost of these repairs was calculated as $12,954.54. Muller's boatyard received $13,000 in money orders worth $1,000 each and issued a refund check payable to cash for $45.15. Diane Dazzo, appellant's wife, endorsed and cashed this refund check.
Appellant did not testify and called only one witness, his wife. She testified that Glenn Hutchison, a defendant in United States v. Saint Prix, supra, had given her husband the Muller Boat Works refund check in April 1978 and asked him to cash it. She asserted that her husband had then given the check to her, and she endorsed and cashed it.
Appellant's trial was marked by numerous disturbing events. On April 29, 1981, the government's only witness against Mastrangelo, appellant's co-defendant, was murdered by two gunmen in Brooklyn. As a consequence, the district court was forced to declare a mistrial with respect to Mastrangelo. Moreover, government witnesses were repeatedly approached and intimidated. One witness was informed at gunpoint that if he went into the grand jury and testified at trial, he and his family would be killed. The week before trial, Ardolino told Jim Muller that ...