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United States v. Tutino

decided as corrected.: June 29, 1989.

UNITED STATES OF AMERICA, APPELLEE,
v.
RALPH TUTINO, A/K/A "THE GENERAL," SALVATORE LARCA, A/K/A "SALLIE," LEOLUCA GUARINO, A/K/A "LEO," AND LABORIO BELLOMO, A/K/A "BARNEY," APPELLANTS



Appeal from judgments of conviction entered in the United States District Court for the Southern District of New York, Pierre N. Leval, Judge, on May 23, 1988, July 1, 1988 and July 15, 1988, after a seven-week jury trial. We affirm the conviction in all respects. Affirmed. Nos. 655, 740, 741, 742

Oakes, Chief Judge, Mahoney, Circuit Judge, and Wood, District Judge.*fn*

Author: Wood

CORRECTED OPINION

On April 1, 1987, the Government filed a four count indictment naming Ralph Tutino, Leoluca Guarino, Salvatore Larca and Laborio Bellomo. Count One charged Tutino, Larca, Guarino and Bellomo with conspiring to distribute more than one kilogram of heroin, in violation of Title 21, United States Code, Section 846. Count Two charged Tutino, Larca and Guarino with distributing approximately two kilograms of heroin between December 27, 1986 and March 19, 1987, in violation of Title 21, United States Code, Sections 812, 841(a)(1), 841(b)(1)(A) and Title 18, United States Code, Section 2. Count Three charged the same three defendants with distributing approximately 999.2 grams of heroin on December 27, 1986, in violation of Title 21, United States Code, Sections 812, 841(a)(1), 841(b)(1)(B) and Title 18, United States Code, Section 2. Count Four charged all four defendants with distributing approximately 997.8 grams of heroin on March 19, 1987, in violation of Title 21, United States Code, Sections 812, 841(a)(1), 841(b)(1)(B) and Title 18, United States Code, Section 2.

Trial began on January 15, 1988. The Government contended that Ralph Tutino and Leolarca Guarino sold one kilogram of extraordinarily high quality heroin to Vincent "Fish" Cafaro, an organized crime figure,*fn1 on December 27, 1986 and March 19, 1987, and that Salvatore Larca and Laborio Bellomo supplied Tutino and Guarino with the heroin, The Government's case-in-chief consisted of portions of the consensual tapes made by Cafaro, testimony of numerous surveillance agents, and telephone records showing regular communications among the defendants through beepers, mobile telephones, and public telephones, Tutino and Guarino did not deny that they had sold a kilogram of heroin to Cafaro on each of the dates in question, Instead, they attempted to show that Cafaro had intimidated, threatened and entrapped them into committing the crimes charged. Bellomo attempted to discredit the FBI agents who had observed him; Larca presented no evidence.

The trial concluded on March 6, 1988, when the jury returned guilty verdicts on all counts. All four defendants have appealed on various grounds.

Discussion

A. THE SUFFICIENCY OF THE EVIDENCE SUPPORTING LARCA'S CONVICTION

Defendant Larca contends that the evidence against him was insufficient as a matter of law to support a conviction. There was clearly sufficient evidence to prove that a conspiracy to distribute heroin existed, and that Tutino and Guarino were part of that conspiracy. The only question, then, is whether there was sufficient evidence to link Larca to that conspiracy. This Court has recently reaffirmed the principle that "[once] a conspiracy is shown to exist, the 'evidence sufficient to link another defendant to it need not be overwhelming.'" United States v. Ciambrone, 787 F.2d 799, 806 (2d Cir.), cert. denied, 479 U.S. 1017, 93 L. Ed. 2d 720, 107 S. Ct. 668 (1986) (quoting United States v. Provenzano, 615 F.2d 37, 45 [2d Cir.], cert. denied, 446 U.S. 953, 64 L. Ed. 2d 810, 100 S. Ct. 2921 [1980]). In addition, the "[existence] of and participation in a conspiracy with the requisite criminal intent may be established . . . through circumstantial evidence." United States v. Young, 745 F.2d 733, 762 (2d Cir. 1984), cert. denied, 470 U.S. 1084, 85 L. Ed. 2d 142, 105 S. Ct. 1842 (1985) (quoting United States v. Sanzo, 673 F.2d 64, 69 [2d Cir.] cert. denied, 459 U.S. 858, 74 L. Ed. 2d 111, 103 S. Ct. 128 [1982]).

The evidence against Larca was more than sufficient to link him with the conspiracy. At the December 16 meeting between Tutino and Cafaro, Tutino told Cafaro that Tutino's suppliers "got mad" because Cafaro had insufficient money with him the previous day, and that they had to "make a move." At the end of that meeting, Tutino said "I gotta go meet these guys." Shortly thereafter, Tutino was observed entering a clothing store, followed almost immediately by Larca. Tutino left the store after only three minutes, and Larca departed three minutes later. When Cafaro met Tutino on December 23, Tutino first said he did not know whether he could do the deal on December 27, because he had not yet seen his supplier. Tutino then said "I gotta walk out . . . I gotta see somebody," left, and reentered the store moments later with Larca, saying he could do the deal on December 27. On December 27, a man fitting Larca's description met with Tutino shortly before Cafaro received the heroin from Tutino, The jury could reasonably have concluded that Larca was one of the "guys" that Tutino had to meet on December 16,*fn2 and that Tutino's sudden ability to go forward with the deal on December 27 was due to his meeting with Larca, who was his supplier.

On March 19, the next time Cafaro purchased heroin, Larca was with Bellomo throughout the day. Several calls were made by Bellomo to Larca's beeper. In particular, shortly after the agents observed Bellomo receiving a package from Tutino, Bellomo called Larca's beeper. The jury could reasonably have concluded that Bellomo called Larca to inform him that the transfer had taken place. Moments later, Larca was observed driving a white Camaro with Bellomo in the passenger seat; Larca drove Bellomo to Bellomo's car.

The Government also introduced evidence of Larca's substantial use of devices such as beepers and cellular telephones, which are difficult to tap. In addition, during the period in which the narcotics transactions took place, Larca possessed a scanner programmed to almost all the same frequencies as Tutino's, including seven stations programmed to DEA frequencies.

Larca points out that Tutino did not explicitly reveal Larca as his supplier. However, Tutino made several references to "Sallie," and in one conversation told Cafaro, "Sallie couldn't even do it. He couldn't give it to me without an okay." The jury could reasonably have concluded that this conversation concerned the supply of heroin, that "Sallie" referred to Salvatore Larca, and that Larca needed an "okay" from someone else to supply the heroin to Tutino.

Under Ciambrone, supra, and Young, supra, this evidence is sufficient to convict Larca.

B. LARCA'S AND BELLOMO'S MOTION FOR SEVERANCE

Larca and Bellomo moved for a severance from Tutino and Guarino before, during, and after trial, on three grounds: (1) antagonistic defenses; (2) prejudicial spillover from the "organized crime" evidence; and (3) the disparity of the evidence.

Severance motions are committed to the sound discretion of the district court. Opper v. United States, 348 U.S. 84, 95, 99 L. Ed. 101, 75 S. Ct. 158 (1954); United States v. Friedman, 854 F.2d 535, 563 (2d Cir. 1988), cert. denied, 490 U.S. 1004, 109 S. Ct. 1637, 104 L. Ed. 2d 153 (1989) (decision on motion to sever "virtually unreviewable"); United States v. Potamitis, 739 F.2d 784, 790 (2d Cir.), cert. denied, 469 U.S. 918, 83 L. Ed. 2d 232, 105 S. Ct. 297 (1984). A denial of a motion to sever will be reversed only if the denial constitutes a "clear abuse of that discretion." United States v. Chang An-Lo, 851 F.2d 547, 556 (2d Cir.), cert. denied, 488 U.S. 966, 109 S. Ct. 493, 102 L. Ed. 2d 530 (1988). To challenge the denial of a severance motion, a defendant must sustain an "extremely difficult burden." United States v. Friedman, 854 F.2d at 563. The defendant must show that he was so severely prejudiced by the joinder that he was denied a constitutionally fair trial, United States v. Burke, 700 F.2d 70, 83 (2d Cir.), cert. denied, 464 U.S. 816, 78 L. Ed. 2d 85, 104 S. Ct. 72 (1983); United States v. Cunningham, 723 F.2d 217, 230 (2d Cir. 1983), cert. denied, 466 U.S. 951, 80 L. Ed. 2d 540, 104 S. Ct. 2154 (1984); United States v. Rucker, 586 F.2d 899, 902 (2d Cir. 1978), and that a "miscarriage of justice" has occurred. United States v. Friedman, 854 F.2d at 563; United States v. Nersesian, 824 F.2d 1294, 1303 (2d Cir.), cert. denied, 484 U.S. 957, 108 S. Ct. 355, 98 L. Ed. 2d 381 (1987). Merely establishing that a defendant would have had a better chance for acquittal at a separate trial is not sufficient to show substantial prejudice. United States v. Friedman, 854 F.2d at 563; United States v. Potamitis, 739 F.2d at 790.

To obtain a severance on the ground of antagonistic defenses, a defendant must show that the conflict is so irreconcilable that acceptance of one defendant's defense requires that the testimony offered on behalf of a codefendant be disbelieved. United States v. Potamitis, 739 F.2d at 790; United States v. Carpentier, 689 F.2d 21, 27-28 (2d Cir. 1982), cert. denied, 459 U.S. 1108, 74 L. Ed. 2d 957, 103 S. Ct. 735 (1983). Judge Leval correctly found that Tutino's and Guarino's reliance on the entrapment and coercion defenses did not in any way implicate Larca or Bellomo. Tutino and Guarino admitted selling heroin, but their admission did not necessitate a finding that either Larca or Bellomo was the supplier or was otherwise involved.

The defendants' argument regarding prejudicial spillover is meritless. The organized crime evidence was neatly compartmentalized, and Judge Leval repeatedly gave very clear instructions to the jury. Before the unredacted tapes were played in the Government's rebuttal case, Judge Leval instructed the jury that the tapes were being received solely as to defendants Tutino and Guarino. After the tapes were played, the court carefully and clearly specified once again that the tapes and Agent Taylor's testimony were not to be considered against Larca and Bellomo.*fn3

In the jury charge, Judge Leval again cautioned the jury to consider the evidence separately. First, he gave a general instruction: "You must consider each defendant separately and you must reach a separate decision for each defendant, based solely on the evidence or lack of evidence regarding that particular defendant." Judge Leval also reminded the jury of his specific instructions during the course of the trial. These instructions were repeated during Judge Leval's charge on Tutino's and Guarino's entrapment defense.*fn4

Finally, when the jury requested the transcripts of all of the tapes admitted in evidence during its deliberations, Judge Leval delivered an exhaustive instruction that could have left no doubt whatsoever that the unredacted tapes offered on the Government's rebuttal case were not to be considered against Larca and Bellomo.*fn5 It is difficult to envision how the district court's instruction on this point could be made any clearer. These instructions eliminated any possibility of prejudicial spillover. United States v. Teitler, 802 F.2d 606, 617 (2d Cir. 1986) (strong presumption that juries can and will follow instructions to consider certain evidence separately); United States v. Potamitis, 739 F.2d at 790.

Furthermore, this case was not so lengthy or massive as to render the jury's task of sorting the evidence so difficult as to be almost impossible. This was a seven week trial, involving only four defendants and four counts. Judge Leval reasonably concluded that in this four-defendant case, the jury could distinguish evidence admissible against some but not all defendants. See, eg., United States v. Cunningham, 723 F.2d at 230 (two defendants not enough to confuse jury); United States v. Carson, 702 F.2d 351, 363 (2d Cir.), cert. denied, 462 U.S. 1108, 103 S. Ct. 2456, 77 L. Ed. 2d 1335 (1983) (four defendants is few enough to allow jury to consider each defendant separately).

The defendants' argument regarding the disparity of the evidence is also without merit. Differences in the amount of proof are inevitable in multi-defendant trials, and are not in themselves a ground for severance. United States v. Panza, 750 F.2d 1141, 1149 (2d Cir. 1984); United States v. Carson, 702 F.2d at 366-67. We find no error in Judge Leval's determination that the conduct of the trial did not warrant a severance; even considered cumulatively, defendants' claims of prejudice are insufficient to require a separate trial.

C. THE USE OF AN ANONYMOUS JURY

Guarino, Larca, and Bellomo claim that the empanellment of an anonymous jury deprived them of a fair trial; they argue that the use of an anonymous jury unfairly prejudiced them, deprived them of the presumption of innocence, and prevented them from selecting a jury in a meaningful way.

This Circuit has held that in appropriate circumstances, an anonymous jury is not unconstitutional. See United States v. Persico, 832 F.2d 705, 717-18 (2d Cir. 1987), cert. denied, 486 U.S. 1022, 108 S. Ct. 1995, 100 L. Ed. 2d 227 (1988); United States v. Thomas, 757 F.2d 1359, 1363-65 (2d Cir.), cert. denied, 474 U.S. 819, 88 L. Ed. 2d 54 (1985); United States v. Barnes, 604 F.2d 121, 133-143 (2d Cir. 1979), cert. denied, 446 U.S. 907, 64 L. Ed. 2d 260, 100 S. Ct. 1833 (1980). Although the use of an anonymous jury carries with it numerous risks, "(in) recent years many trials involving multiple-defendants indicted on racketeering and narcotics charges have been tried to anonymous juries." Hayden v. United States, 814 F.2d 888, 892 (2d. Cir. 1987). However, recognizing the possibility of unfair prejudice to the defendant and the danger of encroaching on the presumption of innocence, among other problems, this Court has articulated guidelines for the use of anonymous juries:

there must be, first, strong reason to believe that the jury needs protection and, second, reasonable precaution must be taken to minimize the effect that such a decision might have on the jurors' opinions of the defendants.

United States v. Thomas, 757 F.2d at 1365.

In this case, the Government requested an anonymous jury for five reasons: (1) the defendants faced serious penalties, including substantial prison terms and a possible parole revocation, and, according to the Government, were therefore likely to bribe or threaten the jury; (2) Tutino had attempted to tamper with a jury in a prior trial; (3) Tutino and Guarino were known associates of organized crime figures; (4) Tutino had a prior extortion conviction and Guarino and Larca had prior narcotics convictions; and (5) the jury had to be protected from the media. The Government made a substantial showing that there was a risk of jury tampering. In particular, the Government submitted affidavits demonstrating that at least three jurors in a prior narcotics case had been approached to acquit Tutino and his co-defendants, and that Tutino was personally involved in the jury tampering.*fn6 This history, coupled with the defendants' serious criminal records (including convictions for narcotics violations, usury and theft of property), was sufficient to justify the empanellment of an anonymous jury. United States v. Thomas, 757 F.2d at 1365 ("Here, there was strong evidence of defendants' past attempts to interfere with the judicial process, and defendants were alleged to be part of a group that possessed the means to harm jurors").

In addition, any risk that the empanellment of an anonymous jury might deprive defendants of the presumption of innocence was minimized by Judge Leval's instructions to prospective jurors:

It is a common practice followed in many cases in the Federal court to keep the names and identities of the jurors in confidence. This is in no way unusual. It is a procedure being followed in this case. Accordingly, you will note on the front page of the questionnaire you will give your name and all identifying information. But in the remainder of the questionnaire, after that front page, you are not to write your name or the names of any persons you are connected with, or your employer, or your addresses, or any identifying information.

Judge Leval also issued instructions regarding the presumption of innocence in the questionnaire distributed to prospective jurors, and during trial. The instructions were carefully framed to avoid any risk that the anonymous procedures would appear extraordinary or reflect adversely on the defendants. See, United States v. Persico, 832 F.2d at 717; United States v. Thomas, 757 F.2d at 1364-1365. These instructions were ...


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