Pretrial appeal from an order of the District Court for the District of Connecticut (T.F. Gilroy Daly, Chief Judge) denying defendants' motions to dismiss charges returned by a federal grand jury.
Newman, Kearse, and Pratt, Circuit Judges.
JON O. NEWMAN, Circuit Judge:
This pretrial appeal in a criminal prosecution concerns primarily a claim under the Double Jeopardy Clause. Specifically, the issue is whether defendants have made a sufficient showing to require the Government to prove that the narcotics conspiracy alleged in a pending indictment is separate from narcotics conspiracies for which the defendants have previously been convicted and sentenced. Oreste Abbamonte, Joseph Del Vecchio, and Guy DiGirolamo appeal from an order of the District Court for the District of Connecticut (T.F. Gilroy Daly, Chief Judge) denying their motions to dismiss charges contained in an indictment returned by a federal grand jury in Connecticut on July 14, 1983. Abbamonte and DelVecchio base their jeopardy claim on their prior conviction in the Southern District of New York; DiGirolamo relies on his prior conviction in the District of Connecticut. Abbamonte and DelVecchio also claim that all the Connecticut charges against them are barred by the plea agreement under which they pled guilty to some of the charges previously brought in the Southern District. We conclude that the double jeopardy claims of all three defendants directed to the pending conspiracy charge require further consideration by the District Court, but that the plea agreement claim of Abbamonte and DelVecchio directed to all pending charges is unavailing.
Count 1 of the pending Connecticut indictment accuses the three appellants and Frank Cotroni, Giovanni Marra, and Michael Crcione of conspiring with each other "and with other persons unknown to the Grand Jury" to distribute heroin in violation of 21 U.S. C. § 846 (1982). The indictment also charges three counts of substantive offenses of transporting more than $5,000 from the United States to Canada without filing required customs reports in violation of 31 U.S.C. §§ 5316, 5322(a) (1982). The conspiracy is alleged to have existed from April 26, 1982, until may 28, 1982, in the District of Connecticut "and elsewhere." The conspiracy is alleged to have involved a scheme whereby Cotroni and Marra in Canada would send quantities of heroin to persons "in the New York City area," including Abbamonte and DelVecchio, using DiGirolamo and Corcione "as middlemen." Four overt acts are alleged. Two concern phone calls from Cotroni to DiGirolamo in Bridgeport, Connecticut, on April 27 and May 9, 1982. The third alleges that on May 10, 1982, DiGirolamo received a quantity of heroin from Corcione and then met with Abbamonte at Port Washington, new York. The fourth alleges that on may 28, 1982, Corcione sent money to Cotroni and Marra in Canada.
The double jeopardy claim of Abbamonte and DelVecchio rests on their pleas of guilty to Count 1 of a superseding information filed in the Southern District of New York on January 7, 1983. that count accused Abbamonte, DelVecchio, and Lorenzo DiChiara of conspiring with each other, with Francisco Solimene, Rafael Gonzalez, and Aleida Martinez, and with "others unknown" to distribute heroin in violation of 21 U.S.C. § 846. The conspiracy was alleged to have existed in the Southern District of new York from April 1, 1982, until the date of the information, January 7, 1983. Sixteen overt acts were alleged. They detailed occurrences "in the Southern District of New York and elsewhere," including an October 15, 1982, conversation in which Abbamonte said he had heroin available in kilogram amounts, a sale by Abbamonte of three kilograms of heroin in New York City on October 20, 1982, and an agreement by Abbamonte on October 28, 1982, to sell an additional seventeen kilograms of heroin. Abbamonte and DelVecchio pled guilty to the conspiracy charge and to substantive counts of distributing heroin, for which they received aggregate sentences of 25 years and 20 years, respectively.
DiGirolamo's double jeopardy claim is predicated on his conviction on a conspiracy charge in an indictment returned in the District of Connecticut on June 16, 1983. Count 1 of that indictment accused DiGirolamo, his wife Lucy, and two other members of his family of conspiring with each other and with "other persons" to distribute cocaine in violation of 21 U.S.C. § 846. The conspiracy was alleged to have existed from February 23, 1982, until June 6, 1982, in the District of Connecticut "and elsewhere." DiGirolamo pled guilty to the conspiracy charge and to one substantive count of another indictment charging distribution of cocaine, for which he received an aggregate sentence of 16 years.
Appellants rely on various documents and statements by law enforcement officials to support their claims that the Southern District conspiracy to which Abbamonte and DelVecchio pled and the COnnecticut conspiracy to which DiGirolamo pled were distribution phases of the overall Canada-Bridgeport-New York City network alleged in the pending Connecticut indictment. Principal reliance is placed on two affidavits of Special Agent Salute of the Drug Enforcement Administration submitted to the District Court ni Connecticut in support of applications for authority to wiretap. The first affidavit, dated April 8, 1982, sought authority to wiretap two telephones at DiGirolamo's residence in Bridgeport for 30 days. The second affidavit, dated May 7, 1982, sought an additional 30 days of wiretapping authority for one of DiGirolamo's home telephones and new authority to wire tap two nearby public telephones that DiGirolamo frequently used. Authority was sought to intercept the conversations of various people including Cotroni, Abbamonte, DelVecchio, DiGirolamo, Lucy DiGirolamo, Michael Mahigel, and Victor Riccitelli.
Agent Salute averred that there was probable cause to believe that all of these persons were conspiring to distribute controlled substances, including heroin and cocaine, and that all of them were using interstate wire facilities to conduct an unlawful business enterprise involving controlled substances.
The affidavits detailed the long-time associations of the alleged conspirators, apparently starting with a period in the mid-1970's when Controni, Abbamonte, DelVecchio, and DiGirolamo were incarcerated in Lewisburg penitentiary. Salute also reported information from informants and surveillance, including the following: As early as 1974 Mahigel was among a group controlling the distribution of large amounts of heroin and cocaine in Bridgeport; that in march 1982 Mahigel was distributing cocaine supplied by DiGirolamo and Riccitelli, that DiGirolamo and his wife had been in contact with Cotroni in Canada; that Cotroni's heroin comes from Italy; that DiGirolamo and Abbamonte were observed entering Abbamonte's residence in Port Washington, New York, carrying cardboard boxes; that both were observed entering an apartment on East 116th Street in East Harlem; that DiGirolamo talks in code to Cotroni in Canada and Abbamonte in New York City when speaking about their heroin and cocaine dealings; that Abbamonte deals in heroin in the area of East 116th Street in East Harlem; and that Abbamonte is DiGirolamo's principal source for cocaine.
Appellants also rely on an affidavit of Special Agent Tully of the Drug Enforcement Administration, which had been presented in support of arrest warrants on the charges initially brought against Abbamonte and DelVecchio in the Southern District, prior to the information to which they pled guilty. In this affidavit, Tully reported that Abbamonte had told an undercover agent that he, DelVecchio, and DiChiara were partners and that DiChiara had obtained heroin from an unknown male who had imported it from Italy. Another pertinent document is an affidavit of Special Agent Hanna of the Federal Bureau of Investigation, which had been presented in support of a complaint charging Abbamonte, DelVecchio, and DiGirolamo with a narcotics conspiracy based on an arrest of all three in new York City on July 7, 1982. In that incident, which did not result in an indictment. DiGiromamo handed a large amount of cash to Abbamonte in a car in which DelVecchio was a passenger. Agent Hanna averred that the money was exchanged for narcotics.
Appellants also relied on statements made by the prosecutor at their sentencing on the Southern District charges to the effect that Abbamonte, DelVecchio, and DiGirolamo had been involved in narcotics transactions in the New York City area as early as December 1981. In addition, the Government had alleged in a sentencing memorandum in connection with the Southern District charges that Abbamonte's organization "operated at the highest levels" and that one of his partners "was the 'puller,' that is, the person who imported heroin from outside the country."
1. Jeopardy Claims. Whether a defendant's criminal activities establish his participation in one large conspiracy or two separate conspiracies is an issue on which prosecutors and defense counsel have often changed positions "as nimbly as if dancing a quadrille." Orloff v. Willoughby, 345 U.S. 83, 87, 97 L. Ed. 842, 73 S. Ct. 534 (1953). When a defendant challenges a conviction on the ground of variance, he urges that, though the indictment alleged one conspiracy, the evidence showed at least two; the Government contends there was only one conspiracy. See, e.g., United States v. Sperling, 506 F.2d 1323, 1340-41 (2d Cir. 1974), cert. denied, 420 U.S. 962, 43 L. Ed. 2d 439, 95 S. Ct. 1351 (1975); United States v. Bynum, 485 F.2d 490, 495-97 (2d Cir. 1973), vacated and remanded on other grounds, 417 U.S. 903 (1974). However, when a defendant challenges a conviction on the ground of double jeopardy, or, as here, seeks to avoid trial on that ground, he contends that only one conspiracy exists, while the Government insists there are at least ...