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SPAVENTO v. UNITED STATES

August 25, 1996

ALFREDO SPAVENTO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: SPRIZZO

 SPRIZZO, D.J.,

 Pursuant to 28 U.S.C. § 2255, petitioner Alfredo Spavento brings the above-captioned action seeking to vacate his conviction and sentence for distribution and conspiracy to distribute illegal narcotics. Spavento claims, inter alia, that he was denied his Sixth Amendment right to effective assistance of counsel by each of his three lawyers representing him in this case. Specifically, Spavento claims that his trial counsel failed to 1) conduct any pre-trial investigation, 2) pursue the possibility of a plea bargain, 3) advise Spavento of his right to a public trial, and 4) object to certain alleged ex parte communications between the Court and the Government. Spavento claims that his sentencing counsel failed to move for a downward departure and to object to certain sentencing enhancements. In addition, Spavento claims that his appellate counsel failed to review and correct a portion of the trial transcript in which Spavento admitted his involvement in the indicted offense, an admission which Spavento now claims resulted from mistranslation, mistranscription, or misunderstanding. For the following reasons, the petition must be denied.

 BACKGROUND

 On April 13, 1988, Spavento and several co-defendants were indicted on charges of operating and conspiring to operate an international narcotics network to distribute heroin to wholesale customers.

 On October 31, 1988, a six month jury trial of Spavento and several co-defendants commenced. The evidence established the existence of a narcotics conspiracy to import at least one kilogram of heroin into the United States, to export at least five kilograms of heroin, and to distribute at least one kilogram of heroin domestically. Central to this conspiracy was Spavento's ownership and operation of a retail store called the Garage Sale. From this base of operation, Spavento oversaw the activities of the conspiracy, arranged for sources to supply narcotics and directed their delivery to wholesale customers.

 The conspiracy was investigated by Federal Bureau of Investigation Special Agent Caruso who posed undercover as a wholesale drug purchaser. Agent Caruso negotiated four drug transactions with Spavento over a six month period, two of which were actually consummated. On May 19, 1987, Michelangelo La Scala, a government informant and friend of Spavento, introduced Agent Caruso to Spavento at the Garage Sale. Trial Tr. at 4798-99. La Scala introduced Agent Caruso as a drug dealer who purchased large quantities of heroin. Id. at 4798-99, 4808. Spavento took Agent Caruso aside and said, "I don't do this type of things, but I know where we can get three pair of pants. You know, that's what we call it. And there's seven more coming in. This guy usually gets 215,000 for each pair of pants, you know, a kilo." Id. at 4809, 4810. After negotiating the price, Agent Caruso told Spavento that he needed a week to get the money together and asked if the heroin would be available in a week. Id. at 4811. Spavento responded that he would call Agent Caruso when he had more heroin.

 On June 24, 1987, Agent Caruso called Spavento and asked, "do you have my suit?" Trial Tr. at 4817. Spavento responded, "just come on over." Id. When he arrived at the Garage Sale, Agent Caruso again asked Spavento, "do you have my suit?" Id. at 4818. When Spavento asked how long Agent Caruso would be in New York, Agent Caruso responded that if he did not "buy the key" that day or the next, he would have to return another day. Id. at 4819. Spavento replied, "well, I will make some phone calls and see if I can get ahold [sic] of the guy to introduce you." Id. While attempting to coordinate and exchange the first kilogram of heroin, Spavento stated that co-defendant Calderone has "got the stuff, but he can't be moving it now. It's too hot." Id. at 4832. As a result of this fear of surveillance by law enforcement, the first negotiated transaction was aborted. Id.

 On August 14, 1987, Agent Caruso returned to the Garage Sale, where Spavento introduced him to Michele Modica and Vincenzo Miceli. Trial Tr. at 4938-40. The same day, Modica and Miceli sold Agent Caruso 988 grams of heroin for $ 195,000. Id. On August 25, 1987, Agent Caruso completed the transaction at the Garage Sale by tendering to Spavento the $ 15,000 remaining balance on the purchase. Id. at 4948-49.

 On December 1, 1987, undercover Drug Enforcement Administration ("DEA") agent Thomas Geisel met Spavento's co-defendant Emanuele Adamita at the Golden Gate Motel in Brooklyn, New York for a prearranged heroin transaction. Trial Tr. at 1929. Giesel gave Adamita $ 35,000 in exchange for what he believed to be 90 grams of heroin. When DEA agents weighed the heroin, they discovered that Geisel had been "shorted" 14 grains. Id. at 1931. Later that night, Giesel confronted Adamita, who later returned with the remaining 14 grams. Id. at 1933. On December 3, 1987, Agent Caruso purchased half a kilogram of heroin by placing $ 110,000 in a cardboard box under a rack of clothes in the rear of the Garage Sale. Id. at 4966, 4978-79. Modica gave Agent Spavento the heroin in a car parked outside the Garage Sale. Id.

 At trial, Spavento was represented by counsel Thomas Nooter and provided with an Italian interpreter. *fn1" During trial, Nooter presented a detailed chronology of Spavento's work history in his opening statement, see Trial Tr. at 182-83, and examined or cross-examined thirty-two witnesses. In addition, Nooter conducted the examination when Spavento testified on his own behalf, during which Nooter introduced thirty-nine exhibits. See Defense Exhs. VV through LLL 17.

 On April 25, 1989, a jury convicted Spavento on one count each of conspiracy to distribute heroin and cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1) & -(b)(1)(A); distribution of 988 grams of heroin on August 14, 1987, in violation of 21 U.S.C. §§ 841(a)(1) & -(b)(1)(B) and 18 U.S.C. § 2; distribution of 78 grams of heroin of 56% purity on December 1, 1987, in violation of 21 U.S.C. §§ 812, 841(a)(1) & -(b)(1)(B), and 18 U.S.C. § 2; and distribution of 459 grams of heroin to Agent Caruso on December 3, 1987, in violation of 21 U.S.C. §§ 812, 841(a)(1) & -(b)(1)(B), and 18 U.S.C. § 2. Indictment at 2, 3, 26, 27.

 Prior to sentencing, the United States Probation Department provided the Court with a presentencing investigation report ("PSR") which recommended a United States Sentencing Guidelines (the "Guidelines" or "U.S.S.G.") base offense level of 36 for quantities of narcotics involved in the conspiracy of ten kilograms or more. See PSR, attached to Government's Memorandum of Law in Opposition ("Gov't. Mem.") at Exh. C, P 158. In addition, the PSR recommended a two level enhancement for Spavento's false trial testimony pursuant to U.S.S.G. § 3C1.1, and a three level ...


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