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United States v. Aiello

decided: December 23, 1988.

UNITED STATES OF AMERICA, APPELLEE,
v.
ANTONINO AIELLO, DEFENDANT-APPELLANT



Appeal from a judgment of conviction in the United States District Court for the Southern District of New York (Duffy, J.) on one count of conspiring to distribute and possess with intent to distribute heroin and cocaine, nine counts of distributing and possessing with intent to distribute heroin and cocaine, and one count of engaging in a continuing criminal enterprise for the distribution of narcotics.

Oakes, Miner and Altimari, Circuit Judges.

Author: Miner

MINER, Circuit Judge:

Defendant-appellant Antonino Aiello ("Tony" or "Aiello") was convicted, after a jury trial, of conspiring to distribute and possess with intent to distribute heroin and cocaine, in violation of 21 U.S.C. § 846 (1982) (Count 1); distributing and possessing with intent to distribute heroin and cocaine, in violation of 21 U.S.C. §§ 812 (1982 & Supp. III 1985), 841(a)(1) & (b)(1)(A) (1982 & Supp. III 1985) and 18 U.S.C. § 2 (1982) (Counts 2-9, 12); and operating a continuing criminal enterprise ("CCE") for the distribution of narcotics, in violation of 21 U.S.C. § 848 (1982 Supp. IV 1986) (Count 15).

Aiello appeals from all counts except Counts 1 and 6 of his judgment of conviction. He challenges the sufficiency of the evidence as to the distribution and possession counts and the CCE count. We reject his contention and hold that an aiding and abetting offense may serve as a predicate for the continuing criminal enterprise statute, so long as the aider and abettor is a "kingpin." Aiello also challenges: the district court's instruction that, for purposes of the "continuing series" element of the CCE statute, the jury could consider any violation of the narcotics laws, even a violation not charged in the indictment; the admission into evidence of an undercover agent's interpretation of a co-conspirator's statement; and the severity of his sentence. These remaining contentions also are rejected and the judgment of the district court is affirmed.

BACKGROUND

Because Aiello challenges the sufficiency of the evidence, it is necessary to recount the facts at some length. In October 1977, Aiello opened a pizzeria ("Tony's Pizza") at 164 West 125th Street in Harlem where, over the course of seven years, he ran a heroin and cocaine distribution network. In early 1978, Lawrence "Big Al" Robinson, a street-level dealer who eventually cooperated with and testified for the government, met Aiello at the pizzeria. Robinson was told by the assistant manager that if Robinson needed drugs to sell, Aiello could provide "top-notch drugs." Aiello thereafter made Robinson a sales agent. For five years, Robinson brought drug customers to Aiello's restaurant in exchange for a percentage of the sales made to those customers.

At times, Aiello was involved personally in the drug dealings. On at least one occasion, at the urging of Robinson, he met with an aggrieved buyer to settle a dispute. However, he generally left the day-to-day operation to others. In 1978, Rosetta Palmer was hired, ostensibly as a waitress and cook, but in reality to facilitate drug transactions. Giuseppe Giusto, known as "Joey," soon became Aiello's lieutenant, and ran the drug business at the restaurant. Robinson testified that Aiello's brother-in-law, Filippo Gambina, accompanied Giusto each day to Tony's Pizza and assisted Giusto in the distribution of cocaine and heroin from the rear kitchen area of the pizzeria. He also testified that he once received a package of heroin from Giusto and Dominick DiGangi, who also worked for Aiello and delivered heroin with Giusto. There also was evidence that, at least in the later stages of the enterprise, Aiello's father, Vito, and sister, Jane, engaged in various drug-related activities for the distribution network.

On June 30, 1983, Robinson was arrested for selling one-quarter ounce of heroin. He thereafter cooperated with the New York Drug Enforcement Task Force by providing information about Aiello's drug enterprise and by assisting an undercover agent, Detective Richard Ford, in purchasing drugs from the enterprise.

On July 21, 1983, Ford purchased an ounce of heroin from Palmer at the pizzeria (Count 2). According to Ford, Palmer nodded to the kitchen area, referred to "another customer" and stated, "[m]y people are back there now." Approximately ten minutes after Ford left, Giusto and DiGangi were seen leaving Tony's.

Ford returned to the pizzeria on August 16, 1983 and again sought to purchase one ounce of heroin. Palmer stated, "He only left half of what you got before. Do you want it?" Ford purchased the one-half ounce (Count 3).

On August 18, 1983, Palmer introduced Ford to Giusto and Gambina when Ford bought an ounce of heroin at Tony's. Although Ford did not have enough money for the ounce, Giusto allowed Palmer to give him the entire ounce for partial payment, with the understanding that Ford would pay the remainder later (Count 4).

Upon his return to the pizzeria on October 13th, Ford argued with Giusto about the quality of his last purchase and agreed to buy yet another ounce of heroin. (He also paid Giusto the money that he owed from the August 18th transaction.) Because Giusto had "another customer waiting outside," however, Ford had to come back later that day to pick up his ounce from Palmer (Count 5).

On December 14, 1983, Ford called Palmer at the pizzeria to obtain the telephone number for Aiello's cafe in Queens ("Caffe Aiello") so that he could call Giusto about purchasing one-eighth kilogram of heroin. Palmer had the number but informed Ford that Giusto made it clear that the cafe was not to be called under any circumstances. Ford went to the pizzeria, whereupon Giusto called and told Ford to leave the money there with Palmer. Ford instead waited for Giusto to arrive. At approximately 5:00 p.m., Giusto appeared in a car with Aiello. After speaking briefly with Ford, Giusto instructed Raymond Boyd, a long-time worker at the pizzeria, as follows: "Go across the street. Tony [Aiello] is in the car. Get the package . . . ." Boyd ...


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