Appeals from judgments of conviction entered in the United States District Court for the Southern District of New York, Robert L. Carter, Judge. Held, taping of telephone calls was impliedly consented to by prison inmates on notice of monitoring and hence within consent exception to Title III of the Omnibus Crime Control and Safe Streets Act; destruction of 27 out of 253 tapes not prejudicial were done negligently; evidence of earlier substantive count convictions admissible to show direction of fifth person so as to make evidence of continuing criminal enterprise ("CCE") sufficient; one cannot aid and abet a CCE; sentencing claims lacking in merit except that a conspiracy conviction is "combined" into a CCE conviction.
Oakes, Meskill, and Pratt, Circuit Judges.
Angelo Amen, Mark Deleonardis, Michael Paradiso, and oreste Abbomonte, Jr., four of fourteen original defendants in a twenty-three count indictment, appeal convictions entered in the United States District Court for the Southern District of New York, Robert L. Carter, Judge. Following denial of their suppression (and certain other) motions in United States v. Vasta, 649 F. Supp.974 (S.D.N.Y. 1986), appellants Amen and Deleonardis pleaded guilty to all the counts in which they were named, including Count One, alleging a conspiracy to distribute and possess with intent to distribute heroin in violation of 21 U.S.C. § 846 and Counts Five through Ten and Counts Six through Nine respectively charging Deleonardis and Amen with distributing heroin. Abbamonte, Paradiso, and six other codefendants were convicted after a jury trial, Abbamonte of Count One, the conspiracy count, Count Three, operating a continuing criminal enterprise in violation of 21 U.S.C. § 848, and Counts Seven and Eight, distributing heroin. Paradiso was convicted on Counts One and Four, Count Four charging aiding and abetting Abbomonte in the operation of his continuing criminal enterprise in violation of 21 U.S.C. § 848 and 18 U.S.C. § 2.
On January 14, 1987, Judge Carter sentenced Amen to a twenty-year prison term on Count One, to run consecutively to a nine-year prison term imposed by David N. Edelstein, United States District Judge, on July 22, 1986, for Amen's conviction in United States v. Delvecchio and Amen, 86 Cr. 305 (S.D.N.Y.), aff'd in part, rev'd in part, 816 F.2d 859 (2d Cir. 1987). In addition, Judge Carter sentenced Amen to concurrent twenty-year terms on Counts Seven and Eight. On the same day, Judge Carter sentenced Mark Deleonardis to a twenty-year prison term on Count One, a consecutive five-year prison term on Count Six, and concurrent twenty-year prison terms on each of Counts Five, Seven, Eight, Nine, and Ten. Judge Carter also imposed lifetime special parole on Deleonardis.
On January 15, 1987, Judge Carter sentenced Abbamonte to life imprisonment on Count Three and imposed concurrent forty-year prison terms on each of Counts One, Seven, and Eight. In an endorsement dated January 16, 1987, Judge Carter corrected the judgment to reflect his intention to impose the sentence on Count One consecutive to the term that Abbamonte was already serving for 1983 narcotics convictions. On January 15, 1987, Paradiso received consecutive twenty-year prison sentences on Counts One and Four.
The evidence establishing a heroin enterprise run from the federal penitentiary at Lewisburg, Pennsylvania, consisted primarily of communications taped under the prison monitoring system. Paradiso and Abbamonte argue that the trial court improperly denied their motion to suppress these tapes (hereinafter the "Lewisburg tapes"). Abbamonte argues that there was insufficient evidence to establish that he operated a continuing criminal enterprise because the Government failed to establish that he acted in concert with five or more persons with respect to whom he occupied the position of organizer, supervisor, or manager. He contends that the only properly admitted evidence related to four such persons. Paradiso argues that he should not have been convicted for aiding and abetting Abbamonte's continuing criminal enterprise because (A) he was not chargeable with such an offense, (B) the court's instruction on aiding and abetting was erroneous, and (C) the evidence was insufficient to prove that he aided and abetted Abbamonte in the management and operation of a continuing criminal enterprise. Abbamonte also argues that he was denied effective assistance of counsel by virtue of a denial of a motion for adjournment. Amen and Deleonardis argue that their sentences violate the Eighth Amendment prohibition against cruel and unusual punishment. Abbamonte and Paradiso argue, and the Government concedes, that they should not have been sentenced on Count One, the conspiracy count, unless their respective convictions for operating and continuing criminal enterprise ("CCE") and aiding and abetting such operation are overturned. United States v. Aiello, 771 F.2d 621, 632-35 (2d Cir. 1985); United States v. Osorio Estrada, 751 F.2d 128, 134-35 (2d Cir. 1984), cert. denied, 474 U.S. 830, 106 S. Ct. 97, 88 L. Ed. 2d 79 (1985). We affirm as to all appellants except that we reverse the judgment against Paradiso for aiding and abetting Abbamonte's CCE and we "combine" Abbamonte's conviction for conspiracy into the greater offense of CCE in accordance with Aiello and Osorio Estrada.
Although the principal evidence in the case pertains to the Lewisburg heroin enterprise, evidence of Abbamonte's involvement in a supervisory capacity in heroin trafficking in 1982 and 1983 was introduced as proof that he operated a CCE. On October 20, 1982, a Drug Enforcement Administration ("DEA") undercover agent purchased from Abbamonte and Joseph Delvecchio three kilograms of heroin and made arrangements on November 3, 1982, to purchase seventeen more. This resulted in the seizure of nine kilograms and Abbamonte's and Delvecchio's arrest. Both were jailed at the Metropolitan Correction Center ("MCC"). One of Abbamonte's most frequent visitors was Amen and one of Delvecchio's was his brother, Richard. Later Richard also visited Abbamonte. On several occasions, Amen and Richard visited Abbamonte together. In April 1983, another member of the conspiracy, Lorenzo DiChiara, began cooperating with the Government and was released from the MCC. After DiChiara's release, Richard Delvecchio and Amen repeatedly approached him to buy drugs. On May 14, 1983, in the presence of a DEA agent, Delvecchio and Amen expressed a desire to purchase ten kilograms of heroin at $195,000 per kilogram, taking five kilograms on credit. The drug agent, purporting to be the nephew of the supplier of the nine kilograms of heroin which had been seized, claimed that they still owed his uncle money for the seized heroin. Amen argued that his organization, the Abbamonte organization, should be charged only $80,000 per kilogram for the seized heroin but the agent disputed that his uncle had ever agreed to a reduction in price. An agreement was made to purchase five kilograms of heroin for $190,000 each, but the sale never took place, apparently because Richard Delvecchio and/or Amen suspected surveillance. Eventually, Abbamonte pleaded guilty to two substantive narcotics violations and to conspiracy to distribute heroin. Testimony by under-cover and surveillance agents, as well as Abbamonte's guilty plea allocution, established that he supervised, managed, and organized Joseph Delvecchio during the two 1982 heroin transactions with the undercover agent.
The Lewisburg heroin enterprise, as to which there was ample proof, was discovered after a defendant in an unrelated narcotics case began cooperating with the Government. He told a DEA agent that his cousin, Lawrence Jackson, an inmate at the Lewisburg Penitentiary, was coordinating heroin transactions from inside the prison. With the assistance of the cooperating defendant, DEA Special Agent Charles Howard established contact with Jackson; DEA Special Agent Ruth Beaver and Livia Adams, posing as Agent Howard's girlfriends, received telephone calls from Jackson. Sixty-seven tapes made by these agents were introduced into evidence.
In addition, prison officials made 130 tapes of conversations of Abbamonte and Paradiso with their codefendants. In these tapes, as well as in the Jackson tapes, various codes referred to drug transactions: "lawyers" indicated sources of heroin and "going to court" or similar expressions referred to heroin transactions. Indeed, when one heroin dealer refused to make repeated sales to Agent Howard, Jackson agreed to find him another "lawyer." In December 1984, Jackson promised to put Agent Howard in contact with a source of heroin known as "F. Lee Bailey." The "F. Lee Bailey" source, the evidence indicated, was the organization of appellant Abbamonte.
On January 5, 1985, appellant Mark Deleonardis, acting on instructions from Abbamonte and identifying himself as "your friend from Lewisburg," quoted Agent Howard prices for various amounts of heroin and suggested a meeting. Shortly thereafter, Jackson confirmed that Deleonardis was "F. Lee Bailey". On January 11, 1985, Deleonardis met Agent Howard at a hotel in Queens. Deleonardis indicated that Abbamonte, his "friend at Lewisburg," had told him to provide Agent Howard with "quality heroin." On February 7, 1985, he sold 129 grams of heroin to Agent Howard for $32,500 cash. Three days later, Jackson called Agent Howard to report that "F. Lee Bailey" was pleased with the deal. On February 12, and again on February 20, Deleonardis visited Abbamonte at Lewisburg. On February 14, Agent Howard complained to Jackson about the quality of the heroin he had brought. Jackson indicated that he would talk to "the one that was doing the research on this end." He also agreed to provide samples in the future.
On March 6, 1985, Deleonardis brought a sample of heroin to Agent Howard on a boat owned by the DEA fully equipped with videotape and soundtrack. At this meeting, Deleonardis told Agent Howard that Abbamonte insisted that the next few deals take place in New York rather than in Washington. On March 15, 1985, Deleonardis sold 112 grams of heroin to Agent Howard in New York for $32,500 in cash, the heroin supplied to Deleonardis by appellant Amen at the Skyline Motel in Manhattan. Again, on April 10, 1985, Deleonardis sold Agent Howard 108 grams of heroin supplied by Amen. Deleonardis explained to the agent that his "friend," Abbamonte, had agreed to give Howard heroin on credit, so that for $70,000 cash he could get one-half kilogram or $140,000 worth of heroin. On May 10, 1985, Deleonardis sold 249 grams of heroin to Agent Howard for $48,000. Appellant Amen, along with codefendant Philip Vasta, whose appeal was withdrawn, supplied the heroin. The next day, Abbamonte called Deleonardis, who assured him that the deal had gone as planned.
The evidence also indicated that Abbamonte was having difficulty controlling Amen. In a series of conversations with Deleonardis and a codefendant, Arnold Squitieri, Abbamonte complained that Amen continued to deal with certain people despite Abbamonte's order that Deleonardis, not Amen, do so. On April 27, 1985, Abbamonte had Deleonardis give him Amen's address and told Deleonardis that Amen was "going to the . . . hospital." A few days later Abbamonte informed Squitieri that Amen was going to get a beating because he refused "to stop." On May 9, 1985, Paradiso called codefendant Richard Romano and gave him Amen's address, telling him to "take care of it" and to make sure he got "Jimmy" to help. During the next few days Romano and others waited outside Amen's apartment building. Apparently he had learned of the plan and gone into hiding.
Another heroin sale was scheduled for August 15, 1985. However, Deleonardis detected surveillance and did not complete the deal. He told Abbamonte that he would no longer deal with Agent Howard. Paradiso called Romano and instructed him to meet with Deleonardis. On the evening of August 15, Abbamonte told Deleonardis that Romano would take care of Agent Howard. On August 16, Deleonardis and Romano visited Abbamonte and Paradiso at Lewisburg. Jackson later called Agent Howard and said that "another lawyer" from "the same firm" would do business with him.
On September 6, 1986, while Deleonardis waited with Agent Howard, Romano took $150,000 and went to pick up the heroin. After an eight-hour delay, he delivered 451 grams of heroin. He also returned $25,000 because he was not able to get the 1 1/2 kilograms that Agent Howard was expecting. The evidence showed that the heroin was supplied by a person known as "The ...