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United States v. Vanwort

decided: September 26, 1989.

UNITED STATES OF AMERICA, APPELLEE,
v.
AART VANWORT, WALTER CABRAL, JEANMARIE CHAPOTEAU, VINCENT CICALI, MICHAEL CROWN, ALEXANDER DONCHENKO, BRUCE DUIGNAN, DANIEL DYMENSTEIN-KREMER, RICHARD KEIM, RICHARD HOPKINS, TEMISTOCLES MOURA-TORRES, CLAUDIO PETENUCCI, GESSI PRADO, HENRIQUE RAJAS, ANTHONY RUOTOLO, SERGIO STOFEL-DECASTRO, NAHID TABIBI, CHRISTIANUS VANWORT, EDUARDO VARITZO, MICHAEL ZACHARIAS, PEDRO DASILVA, ALFRED DONCHENKO, ALEXANDER FONTANELLE, STEVEN M. FINN, DEFENDANTS, JEANMARIE CHAPOTEAU, MICHAEL CROWN, PEDRO DASILVA, STEVEN M. FINN, BRUCE DUIGNAN, VINCENT CICALI, DEFENDANTS-APPELLANTS



Appeals from convictions of and sentences for (1) conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 846 and 841, (2) importation of cocaine in violation of 21 U.S.C. §§ 952 and 960, and (3) possession of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841 and 846.

Oakes, Chief Judge, John Minor Wisdom*fn* and Meskill, Circuit Judges.

Author: Meskill

Meskill, Circuit Judge,

Jeanmarie Chapoteau, Michael Crown, Pedro DaSilva and Steven M. Finn appeal from judgments of conviction entered in the United States District Court for the Eastern District of New York, Dearie, J., following a narcotics trial.*fn1

Chapoteau was convicted of conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 846, 841(b)(1)(A)(ii)(II) (1982 & Supp. V 1987). He was also convicted of one substantive count each of importing cocaine and attempting to possess cocaine with intent to distribute it. 21 U.S.C. §§ 952(a), 960(a)(1), 960(b)(1)(B), 846, 841(a)(1), 841(b)(1)(A)(ii) (1982 & Supp. V 1987) and 18 U.S.C. § 2 (1982). Chapoteau received a fifteen year term of imprisonment on the conspiracy count and three years imprisonment on each of the two substantive counts. The sentences for the substantive counts were to run concurrently with each other and consecutively to the fifteen year conspiracy sentence. In addition to the prison terms, Chapoteau was assessed three concurrent $200,000 fines and ordered to pay a special assessment of $150.

Michael Crown was convicted of one count of conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(ii)(II). Crown was sentenced to four years imprisonment and ordered to pay a $50 special assessment.

Pedro DaSilva was convicted of conspiracy to distribute and possess with intent to distribute cocaine and one substantive count each of importing cocaine and possessing cocaine with intent to distribute in violation of 21 U.S.C. §§ 952(a), 960(a)(1), 960(b)(1), 841(a)(1), 841(b)(1)(A)(ii)(II), 846 and 18 U.S.C. § 2. He received concurrent sentences of fifteen years imprisonment on the conspiracy, importation and possession counts. DaSilva also received two concurrent five year special parole terms and was fined $25,000 for each of the substantive importation and possession counts, such fines to run consecutively for a total fine in the amount of $50,000. Additionally, DaSilva was ordered to pay a $150 special assessment.

Steven M. Finn was convicted of one count of conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(ii)(II). Finn received a suspended eight year term of imprisonment and was placed on five years probation. He was fined $750,000 and ordered to pay a special assessment in the amount of $50.

On appeal, the parties raise several challenges to their convictions. Chapoteau, DaSilva, Crown and Finn assert that the evidence established multiple conspiracies rather than the single conspiracy of which they were convicted. Chapoteau argues that there was inadequate evidence to convict him of the two substantive offenses of which he was convicted. Crown, DaSilva and Finn contest the sufficiency of the evidence to convict them of the conspiracy count. In addition, Crown contends that the government improperly used a grand jury subpoena to obtain the trial testimony of Brian Rockett. Finn claims that the district court erred in admitting into evidence a computer printout listing his name, address and telephone number.

Oral argument in this case was heard on April 24, 1989. Subsequent to oral argument, the United States Supreme Court decided Gomez v. United States, 490 U.S. 858, 57 U.S.L.W. 4643, 104 L. Ed. 2d 923, 109 S. Ct. 2237 (1989), which reversed our earlier decision in United States v. Garcia, 848 F.2d 1324 (2d Cir. 1988). Gomez involved a situation in which the criminal defendants objected to the delegation of jury selection to a magistrate. In Gomez, the Supreme Court held that federal magistrates were not authorized under the Federal Magistrates Act, 28 U.S.C. § 631 (1982 & Supp. V 1987), to conduct jury selection in a felony trial. The Court held that in a felony case criminal defendants have a "right to have all critical stages of a criminal trial conducted by a person with jurisdiction to preside [over the entire proceeding]. Thus, harmless-error analysis does not apply in a felony case in which, despite the defendant's objection and without any meaningful review by a district judge, [a magistrate] exceeds his jurisdiction by selecting a jury." Gomez, 57 U.S.L.W. at 4648. In the instant case, the jury was also selected by a magistrate. After oral argument, and in light of the Supreme Court's decision in Gomez, the parties sought and were granted permission to file supplemental briefs and appendices and to include additional documents in the record on appeal pursuant to Fed. R. App. P. 10(e). Appellants now contend that Gomez requires reversal of their convictions. For the reasons stated infra, we disagree.

We find all of the appellants' contentions to be without merit. We therefore affirm the appellants' convictions.

BACKGROUND

A. Overview

Chapoteau, Crown, DaSilva and Finn, along with numerous others, were charged with participating in a conspiracy to import, possess and distribute large quantities of cocaine from Brazil by using the facilities and employees of Pan American World Airways (Pan Am) and Varig Airlines (Varig) over an eight year period. Under one method of importation, Brazilian suppliers would conceal the cocaine in suitcases or packages and relinquish the suitcases or packages to Brazilian airline employees for shipment to John F. Kennedy International Airport (JFK) in New York as unaccompanied luggage. The Brazilian exporters would telephone one of their contacts at JFK and give the contact a code for the baggage claim number of the package containing the cocaine. Upon arrival at JFK, an employee of either Pan Am or Varig, depending on which airline was used for that particular transaction, would intercept and deliver the cocaine. According to a second method of importation, individuals would carry luggage containing cocaine to New York and employees of either Varig or Pan Am would assist them in avoiding detection by United States Customs Service (Customs) officials. The participants at both Pan Am and Varig received $5,000 per kilogram for their efforts.

Evidence at trial showed that Chapoteau introduced Aart Vanwort to the drug importation business and for a time supervised the operations at Pan Am before Vanwort became the central figure in the conspiracy. The other appellants' roles in the conspiracy are similarly well defined. DaSilva was the supervisor of the drug smuggling activities at Varig. He obtained his supply of cocaine from the same Brazilian sources as did Chapoteau and Vanwort. The evidence at trial established that Crown, a former employee of Pan Am, received and distributed substantial amounts of cocaine. Finn concedes that he purchased cocaine from various importers.

We will elaborate on the operation of the conspiracy and the inter-relationship of its various participants.

B. Chapoteau, Vanwort and Pan Am

Aart Vanwort testified as a government witness at trial. His testimony established that between 1980 and 1987 he was involved in importing cocaine from Brazil to JFK on approximately twenty occasions. He further testified that Chapoteau first requested his assistance in the importation of cocaine in the summer of 1980. At that time, both Chapoteau and Vanwort were employees of Pan Am at JFK. Chapoteau requested Vanwort's assistance in clearing four boxes, which had been imported from Brazil, through Customs inspection. Chapoteau informed Vanwort that he did not want the boxes to be inspected. However, a Customs inspector did examine two of the boxes. Even though the boxes did contain cocaine, the Customs inspector found only coffee. The boxes were stamped "cleared" and Vanwort and Chapoteau transported them out of the Customs inspection area. Chapoteau then informed Vanwort that the boxes contained cocaine from Brazil and paid Vanwort $5,000 for his assistance. Chapoteau requested Vanwort's assistance on several subsequent occasions, but Vanwort was unavailable. Despite his unavailability, Chapoteau paid Vanwort, assuring him that they were "partners." Vanwort had no involvement in importing cocaine with Chapoteau after September 1980.

In December 1980, Chapoteau introduced Vanwort to Sergio Alcantara. According to Vanwort's testimony, Alcantara stated that "he didn't like to really work with Chapoteau anymore and had great interest in working with [Vanwort]." Vanwort subsequently agreed to meet with Alcantara and Eduardo Varitzo. At that meeting, Vanwort was accompanied by Ivory Hobson. Alcantara and Varitzo indicated their desire to use Vanwort in the importation scheme. Vanwort testified that his and Hobson's first importation of cocaine for Alcantara and Varitzo occurred in the latter part of 1981. Alcantara called Vanwort from Brazil and told him that he had "a new telephone number." The number was actually the baggage claim number of a suitcase containing cocaine that Alcantara had placed on a Pan Am flight bound for JFK. Vanwort contacted Hobson, who retrieved the suitcase and took it past the Customs inspection area. Vanwort later delivered the suitcase to Alcantara. Vanwort and Hobson thereafter had several disputes, and Vanwort turned to Vincent Cicali for help. Vanwort and Cicali worked together importing cocaine during 1982.

Vanwort met several of the key Brazilians who were involved in the drug operation during a trip to Brazil in 1982. While there, he met Pan Am employee Walter Cabral, who assisted in loading packages of cocaine for transport to the United States. Cabral testified that he assisted in numerous importations involving both Chapoteau and Vanwort. Also in 1982, Vanwort met Molina, the Brazilian who was the source of the cocaine. Molina had been using Alcantara and Varitzo to import cocaine, but became dissatisfied because of the high price he had to pay for their assistance. He asked Vanwort to work directly for him, and Vanwort agreed.

On one occasion, one of the bags containing cocaine that Molina was supposed to export for Vanwort arrived late. When the bag finally arrived, Cicali and Vanwort took it to a New York City hotel room where they inspected it and found that approximately four kilograms of cocaine were missing. The bag was eventually retrieved by Hobson, who delivered it to Vanwort's custody. In a tape-recorded conversation between Chapoteau and Hobson, Chapoteau indicated that he believed this incident reflected poorly on him because he had introduced Vanwort to the business. Chapoteau also expressed his suspicion that Vanwort had stolen the cocaine.

C. The Varig Operation

Pedro DaSilva was Vanwort's "counterpart" at Varig. According to Vanwort's testimony, Alcantara made several references to a "Pedro" who worked at Varig and was involved in similar cocaine transactions. Alexander Fontenelle pled guilty and testified pursuant to a plea agreement. Fontenelle testified that both he and Carlos Villela were involved in importing cocaine from Brazil via Varig and DaSilva. On one occasion when Fontenelle wished to import cocaine, he contacted Villela who contacted DaSilva. DaSilva then aided Fontenelle in getting the cocaine into New York. In addition, other drug dealers with whom Fontenelle was involved in Brazil told him that they sent cocaine through DaSilva. Fontenelle further testified that on several occasions, he sold large quantities (over one kilogram) of imported cocaine to Steven M. Finn in Boston, Massachusetts. Villela testified that he had used DaSilva's services in importing cocaine several times earlier in 1982. Villela also testified that DaSilva introduced him to Rubens DaCosta, a Varig employee who subsequently became involved in the distribution of cocaine.

D. Michael Zacharias

In 1982, Michael Zacharias met with Vanwort to discuss Vanwort's working for Zacharias in the drug importing business. At trial, Vanwort described Zacharias as a "broker" who could use his many contacts to arrange the transportation of cocaine from Brazil to New York. Zacharias orchestrated an importation scheme in May 1983 using Pan Am and Vanwort. Vanwort collected a bag containing cocaine from Zacharias in Rio de Janeiro, and gave it to Cabral. Cabral then saw to it that the bag was on the same flight that Vanwort and Hobson took back to New York. Vanwort received the cocaine in New York from Cicali, who brought it to him in a parking lot. Vanwort then delivered it to Fontenelle and one Mario Rocha. Rocha had been identified by Zacharias as the source of the cocaine. Fontenelle subsequently sold some of the cocaine to Finn. In another transaction shortly thereafter Zacharias also acted as a broker. That transaction involved the importation of cocaine by Vanwort, Hobson, Cicali, Duignan, Fontenelle and Finn. In this transaction, Fontenelle sold 2.5 kilograms of the cocaine and stored another one-half kilogram at Finn's home in Boston. Finn subsequently purchased one-half of the remainder.

E. Problems with the Varig Operation

Although Villela had been dealing with DaSilva at Varig, in the fall of 1983 he encountered some difficulty reaching DaSilva on several occasions when he wished to schedule a drug transaction. Mario Rocha informed Villela that Vanwort at Pan Am would be able to accommodate him. Consequently, several ...


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