United States District Court, S.D. New York
May 5, 2005.
Mark Reiter, Petitioner,
United States of America, Respondent.
The opinion of the court was delivered by: RICHARD OWEN, Senior District Judge
OPINION AND ORDER
Petitioner Mark Reiter has moved for collateral review of his
conviction pursuant to 28 U.S.C. § 2255. In 1988 he was tried,
together with four co-defendants, on a 13-count redacted
indictment which was renumbered 12S 87 Cr. 132 (RO), Exhibit A to
Respondent's papers. It charged a variety of narcotics-related
offenses, as well as a tax violation. Specifically, Reiter was
charged in Count One with racketeering (with predicate acts
including murder, conspiracy to commit murder, conspiracy to
distribute narcotics, heroin distribution, and using a telephone
to facilitate a narcotics violation), in Count Two with
racketeering conspiracy, in Count Three with operating a
continuing criminal enterprise ("CCE"), in Counts Five and Six
with heroin distribution, in Count Seven with using a telephone
to facilitate heroin distribution, and in Count Thirteen with
conspiring to defraud the Internal Revenue Service.
Reiter's trial commenced on May 2, 1988. The evidence against
him included the testimony of numerous cooperating witnesses, including Leroy
"Nicky" Barnes, James Jackson (who testified, among other things,
that Reiter had supplied him with many kilograms of pure heroin,
and that Reiter had personally ordered the murders of Beverly and
Steven Ash after learning that Nicky Barnes had begun to
cooperate with authorities (Tr. 316-343)),*fn1 Salvatore
Corallo (who testified, among other things, that his
responsibilities were "to test, package heroin, weigh heroin,
deliver [kilogram quantities of] heroin and collect cash from the
sales of those heroin deals" to Reiter (Tr. 2235-36)), Vito
Loiacono (who testified, among other things, that he worked
"distributing the heroin for Mark, pick[ing] up money, set[ting]
up appointments, pick[ing] up the drugs and stor[ing] it" over a
period of years (Tr. 4028-4048)), and Russell Fleming (to whom
Vito Loiacono delivered heroin for Reiter, and who Reiter ordered
killed after he learned that Fleming was cooperating (Tr.
3709-12, 4172)). The testimony of these individuals was
corroborated by diverse and overwhelming evidence from other
sources, including heroin supplied by Reiter, which was seized
from Russell Fleming upon his arrest; surveillance reports;
telephone calls recorded by means of a wiretap on Reiter's phone;
a telephone call recorded by Salvatore Corallo in which Reiter
offered Corallo $30,000 to plead guilty in a pending heroin
conspiracy prosecution; another telephone call recorded by
Corallo in which Corallo and William Battista discussed the
difficulties in working for Reiter; evidence of Reiter's flight
from New York upon learning that Jackson had begun to cooperate;
documents and witnesses attesting to Reiter's extravagant lifestyle and his
purchase of luxury items with cash; and evidence that Reiter had
a no-show job that he used as a cover for narcotics trafficking.
On August 25, 1988, the jury convicted Reiter and his
co-defendants on all counts, and found that each RICO predicate
had been proven beyond a reasonable doubt. Reiter was sentenced
to two life terms of imprisonment, plus 60 years, followed by a
lifetime term of special parole, and fines totaling $4 million.
On direct appeal, Reiter complained that: 1) he had been denied
a severance; 2) the Court excluded certain tape-recordings he
wished to offer; 3) the Court excluded his proposed expert
testimony; 4) the Court refused to require the Government to
provide extra copies of tape-recordings; 5) the Government had
improperly refused to provide immunity to proposed defense
witnesses; 6) the Court had refused to provide the jury with
special interrogatories on the CCE count, which would have
required the jury to identify the five or more individuals Reiter
supervised; and 7) the Court had failed in its jury instructions
appropriately to distinguish between liability for conspiracy and
liability for aiding and abetting. His claims were summarily
rejected by the Court of Appeals, which found them "all to be
without merit." United States v. Reiter, 897 F.2d 639, 646 (2d
On April 2, 1997, more than seven years after his appeal was
denied, Reiter filed a pro se habeas corpus petition. The form
submitted by Reiter contained instructions requiring that he
"include all grounds for relief and all facts supporting such
grounds for relief in the motion you file seeking relief from any
judgment of conviction." Petition at 2, number (6).
In his petition, Reiter asserted that his due process rights
had been denied by the Government's failure to provide him with
exculpatory evidence tending to show that James Jackson had killed Beverly and Steven Ash.*fn2 Specifically,
Reiter claimed that on a day when he was not present in court, it
became apparent that there existed "other theories" of why
Beverly and Steven Ash were killed, as well as exculpatory
witness statements, and that he did not become aware of these
matters until two years later, when he saw the trial transcript.
Reiter claimed that his trial attorney was ineffective for having
failed to investigate "exculpatory evidence known to other
counsel at trial" (Petition at 7), and that his appellate counsel
was ineffective "for failure to detect the disclosure issues."
The Government moved to dismiss the said petition as
time-barred under the Anti-Terrorism and Effective Death Penalty
Act of 1996 ("AEDPA"), arguing that there was no justification
for Reiter's seven-year delay in filing. The Court dismissed the
petition as untimely. Reiter thereafter appealed and on September
22, 1998, the Court of Appeals remanded the matter pursuant to
its decision in Mickens v. United States, 148 F.3d 145 (2d Cir.
Reiter thereafter obtained counsel, and counsel requested
permission to supplement the record. Reiter then made several
further submissions to the Court.*fn4 In certain very
limited respects, the additional submissions amplified the claims
contained in Reiter's original petition. Specifically, in a
supplemental submission filed by counsel on December 29, 1998,
Reiter contended that William "Billy" Battista who had been
described by various witnesses during the trial as a supervisee
of Reiter's during the period charged in the Indictment had
been an FBI informant during the time period the Beverly and
Steven Ash murders had allegedly been ordered by Reiter, and
contended that FBI reports withheld by the Government would have
revealed that: 1) Reiter was not in the New York area in 1982,
when the hotel meeting described by Jackson at which Reiter
allegedly ordered the murders of Beverly and Steven Ash occurred;
2) Battista knew that Reiter did not attend any hotel meeting in
1982; 3) witness statements supporting an alternative theory of
the motive for the murders were not produced to the defense; and
4) reports of these statements would have shown that it was
believed that Beverly Ash would be a witness for the Government
against Reiter. (12/29/98 Supplement at 4-5). According to
Reiter, this evidence would substantially have undermined the
credibility of James Jackson, the sole witness to his alleged
involvement in the Ash murders.
As to many other claims, however, Reiter's supplemental claims
were new as defined and hereafter detailed. Among other things,
for example, Reiter asserted for the first time that the jury's
failure to specify the three or more narcotics violations
underlying the CCE conviction violated the Supreme Court's ruling
in Richardson v. United States, 526 U.S. 813 (1999) (5/16/02
Amendment, Issue 11); that the failure of the jury to make
findings concerning drug amounts violated the Supreme Court's
ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000) (5/16/02
Amendment, Issue 18); that there was insufficient evidence that
Reiter supervised five or more individuals (5/16/02 Amendment,
Issue 8); that the Government violated its obligations under Brady v. Maryland, 373 U.S. 83 (1963), by failing to divulge a
"deal" made with James Jackson and information collected during
interviews with Mike Levy, the owner of Gianpietro's (5/16/02
Amendment, Issues 5 and 6); that the Court committed various
errors in instructing the jury (5/16/02 Amendment, Issues 7(A),
7(B), 10, 12, 13, 14, 15, 16(A), 16(b) and 17)); and that the
Government intentionally elicited false testimony that William
"Billy" Battista was dead and implied that Reiter had killed him
(5/16/02 Amendment, Issues 2 and 3).
In other respects, the claims raised by Reiter in his
supplemental submissions including claims based on the
Government denial of immunity to proposed defense witnesses had
previously been raised and rejected on direct appeal.
As discussed hereafter, with the exception of Reiter's claim
under Richardson, those claims that do not relate back to the
claim Reiter asserted in his original petition are untimely and
are dismissed. Reiter's original claims are discussed hereafter
on the merits. His Richardson claim is rejected under a
harmless error analysis.
A. Claims That Do Not Relate To The Initial Allegations That
The Government Withheld Exculpatory Evidence Relating To The
Murders Of Beverly and Steven Ash, And That His Trial Counsel
Was Ineffective For Having Failed To Investigate, Are
At the outset of the detailed consideration, it might be kept
in mind that the petition originally filed by Reiter in 1997
asserted three related claims: 1) that the Government violated
due process by suppressing exculpatory information concerning the
murders of Beverly and Steven Ash; 2) that trial counsel was
ineffective for having failed to investigate this information and
an alternative murder theory revealed to his co-defendant's
counsel on a day that he and his attorney were not in court; and
3) that appellate counsel was ineffective for having failed to pursue this issue on appeal.
In December 1998 and May 2002, however, Reiter asserted for the
first time a variety of claims that bear no relation to the said
three claims asserted in his original petition. These claims are
all time barred under relevant legal standards. In addition, some
of the new claims are not cognizable on collateral review, and
others plainly fail on the merits.
1. Applicable Legal Standards For Amendments to 2255 Petitions
Reiter invokes Federal Rule of Civil Procedure 15 (a) as the
basis for this Court's jurisdiction over the claims contained in
the Amendments to his petition. Rule 15(a) provides, in relevant
part: "A party may amend the party's pleading once as a matter of
course at any time before a responsive pleading is served. . . .
Otherwise a party may amend the party's pleading only by leave of
court or by written consent of the adverse party; and leave shall
be freely given when justice so requires." Fed.R.Civ.P. 15(a).
But the Government had already responded to Reiter's initial
petition, and did not give consent to any amendments. Thus,
Reiter's amended petition could have been received "only by leave
of court[,]" with leave to amend given freely, absent "bad faith,
undue prejudice to the opposing party, or futility of amendment."
United States v. Pittman, 209 F.3d at 317 (citing, inter
alia, Foman v. Davis, 371 U.S. 178 (1962)). Where a cause of
action is barred by the statute of limitations, however,
amendment would be futile and is denied. Id.
a. Claims Filed After April 24, 1996 Are Generally Time
Reiter's conviction had become final before the AEDPA added a
one-year statute of limitations period to Section 2255. See
18 U.S.C. § 2255 (1). Therefore, Reiter had one year from the
effective date of the AEDPA to file all of his claims under §
2255. See Mickens v. United States, 148 F.3d 145 (2d Cir. 1998). The AEDPA became
effective on April 24, 1996. While Reiter's original petition was
filed on April 2, 1997, and thus was timely, he did not file his
first motion to supplement the petition until October 28, 1998,
and he did not actually supplement the petition before December
29, 1998, when he filed the first of three additional submissions
and amendments. Because his amendments were filed after the
statute of limitations expired, the amended claims are generally
time-barred under subsection (1) of § 2255.
b. The Relation Back Doctrine
In order for any of Reiter's amended claims to be considered
timely here, each must have related back to the claims in his
original petition in accordance with Federal Rule of Civil
Procedure 15(c). See Fama v. Commissioner of Correctional
Services, 235 F.3d 804, 81516 (2d Cir. 2000). Rule 15(c)
provides, in relevant part:
An amendment of a pleading relates back to the date
of the original pleading when . . . the claim or
defense asserted in the amended pleading arose out of
the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading.
In order to "relate back" under Rule 15(c), an untimely § 2255
claim "must have more in common with the timely filed claim than
the mere fact that they arose out of the same trial and
sentencing proceedings." Davenport v. United States,
217 F.3d 1341
, 1344 (11th Cir. 2000); accord United States v. Hicks,
283 F.3d 380
, 388 (D.C. Cir. 2002); Rodriguez v. United States,
286 F.3d 972
, 981 (7th Cir. 2002); United States v.
Pittman, 209 F.3d 314
(4th Cir. 2000); United States v.
Duffus, 174 F.3d 333
(3d Cir. 1999); United States v.
Cravcraft, 167 F.3d 451
(8th Cir. 1999). Rather, "in order
to relate back, the untimely claim must have arisen from the same
set of facts as the timely filed claim, not from separate conduct
or a separate occurrence in both time and type." Davenport, 217 F.3d at 1344; accord Hicks,
283 F.3d at 388 ("both time and type") Rodriguez, 286 F.3d at 981
("same set of facts" and "both time and type"); Pittman,
209 F.3d at 318 ("both time and type"); Duffus, 174 F.3d at 337
("same set of facts"); Craycraft, 167 F.3d at 457 ("same set of
facts" and "both time and type"). This is so that the Government
has sufficient notice of the facts and claims giving rise to the
proposed amendment." Hicks, 283 F.3d at 388 (quoting Anthony
v. Cambra, 236 F.3d 568
, 576 (9th Cir. 2000)).
Thus, "[a]n untimely amendment to a § 2255 motion which, by way
of additional facts, clarifies or amplifies a claim or theory in
the original motion may, in the district court's discretion,
relate back to the date of the original motion if and only if . . .
the proposed amendment does not seek to add a new claim or to
insert a new theory into the case." Woodward v. Williams,
263 F.3d 1135, 1142 (10th Cir. 2001) (emphasis in original)
(citation omitted); see also Rodriguez, 286 F.3d at 981
("[T]hese circuits have been uniform in their denial of
amendments that would add a new claim or theory of relief.").
However, it is not sufficient for an untimely amendment merely to
assert the same general type of legal claim as in the original §
2255 motion. See United States v. Craycraft where the Eight
Circuit held that an untimely claim of ineffective assistance of
counsel for not filing an appeal did not relate back to timely
ineffective assistance claims for not pursuing a downward
departure, not raising an objection at trial, and not challenging
a prior conviction. Craycraft, 167 F.3d at 456-57. The court
concluded that counsel's failure to appeal was "a separate
occurrence in both time and type" from a failure to pursue a
downward departure or to object at trial. Id. at 457; see also
Duffus, 174 F.3d at 336 (claim of ineffective assistance for
failure to move to suppress evidence did not relate back to claim
of ineffective assistance on appeal). Moreover, it is appropriate to note that the one-year statute
of limitations imposed by the AEDPA applies regardless of any
finding of prejudice. See Duffus, 174 F. 3d at 338 ("[U]sually
statutes of limitations operate without taking prejudice from
delay into account. A prisoner should not be able to assert a
claim otherwise barred by the statue of limitations merely
because he asserted a separate claim within the limitations
period."). Indeed, courts have dismissed attempts to amend timely
Section 2255 petitions with time-barred claims even where the
amended petition is filed prior to filing of the government's
response to the original petition. See Pittman,
209 F.3d at 316; United States v. Cracraft, 167 F.3d at 453.
c. Rule 15 (d) Is Inapplicable Here
Reiter makes no attempt to contend that the claims asserted in
his amended petition relate back to his initial claims in
accordance with Rule 15 (c). Instead, Reiter invokes Federal Rule
of Civil Procedure 15 (d), which concerns the standards for
submitting "supplemental pleading[s] setting forth transactions
or occurrences or events which have happened since the date of
the pleading sought to be supplemented." Rule 15 (d), however, is
completely inapposite. It has no bearing on the timeliness of
Reiter's amendment to his § 2255 petition. See Wright &
Miller, Federal Practice and Procedure § 1504 (differentiating
between amendments under Rule 15(a) and supplements under Rule 15
(d)). Because none of the events which form the basis for the
claims contained in Reiter's amended petition occurred after he
filed his petition in April 1997 (rather, they all occurred
during his trial), Reiter's motion cannot be considered a
"supplement" to his initial petition. See, e.g., Hicks
283 F.3d at 386. In any event, even a supplemental claim filed under
Rule 15 (d) would either have to be timely filed or relate back
to the claims contained in the initial petition, as discussed
above. See Federal Practice and Procedure, § 1508. 2. Claims Two Through Ten and Twelve Through Eighteen of
Reiter's First Amended Petition, As Well As The Claim In His
Second Amended Petition, Are Dismissed
As described above, Reiter raised only three claims in his
initial petition, all related to the Government's alleged
suppression of exculpatory evidence concerning the Ash murders,
and his attorneys' failure to pursue the matter. With the
exception of Issue #1 in the Amended Petition dated May 16, 2002
(which is discussed below), and Reiter's Richardson claim (also
discussed below) none of the other issues raised in Reiter's
supplemental submissions relates back to these original claims.
Thus, each is dismissed as time-barred, as well as on the merits.
Issue #2: The Government Improperly Argued That
Reiter Killed Battista
Issue #3: The Government Created The False
Impression That Battista Was Dead
The second and third issues raised in Reiter's May 2002
Amendment concern what Reiter alleges as a misimpression created
by the Government at trial that Bill Battista a criminal
associate of Reiter's was dead, and that Reiter had killed him.
In particular, Reiter contends that the Government violated his
Sixth Amendment rights when it "argued in summation that Reiter
killed Battista" and that his attorneys were ineffective for
failing to object and raise the issue on appeal. See 5/16/02
Amendment at 35-39 (Issue #2). Reiter also contends that the
Government violated due process when it allowed an FBI agent to
testify that Battista "may be dead," when in reality the
Government knew that Battista was alive.
These claims bear no relation to the claims asserted in
Reiter's initial petition. They arise out of a different set of
facts and are different in both time and type. Accordingly, they
are time-barred and are dismissed. Even if these claims had been timely filed, however, they fail
on the merits. As Reiter admits in his brief, his attorney did
object at the trial when Vito Loiacano first testified that
Reiter said "he heard that [Battista] was found in a van on the
Major Deegan." (5/16/02 Amendment at 36 (quoting Tr. 4047-48)).
Furthermore, Reiter's attorney made clear during a sidebar
conference that he didn't "want [the Government] to argue to the
jury that Billy Battista is dead or found in a van," and the
Government agreed that it would not make such an argument. Id.
(quoting Tr. 7520-21). Later, after FBI Special Agent Noone had
testified that he did not know whether Battista was dead or alive
as of six months before the trial, Reiter's own counsel
elicited testimony from the FBI agent that, as of that very day,
Battista might be dead and that Battista had not been found
Q. [By Reiter's counsel] As of six months ago do you
know whether Billy Battista was dead or alive?
A. No, I don't.
Q. Today as you sit here on the witness stand, do you
know whether he is alive or he is dead?
A. From personal knowledge, I haven't seen Battista
in three years.
Q. From knowledge that you have known and reports and
whatever, do you know whether he is dead or alive?
A. By hearsay?
The Court: That's what you are being asked?
A. I believe that the opinion would be that he may be
Q. Has he been found any place?
A. No, sir. (Tr. 7522). On redirect, Special Agent Noone made
clear that Battista had been an FBI informant, and
that Battista had become a fugitive in approximately
1985, after it was revealed that he was an informant.
(Tr. 7572-73). Thus, although Vito Loiacono did
relate a conversation with Reiter in which Reiter
claimed that Battista become a cooperator and had
thereafter been "found in a van," the evidence in its
entirety made clear that this was not, in fact, the
Moreover, Reiter mischaracterizes the Government's summation.
The prosecutor did not argue to the jury that Reiter "killed"
Battista. (5/16/02 Amendment at 38). Rather, the Government
argued to the jury that Reiter got rid of Battista and replaced
him with Loiacono after Reiter came to suspect that Battista was
an informant. (Tr. 8789) (quoted in 5/16/02 Amendment at 38).
This argument accurately reflected the testimony given by
Loiacono. Moreover, the fact that Reiter's attorney who had
previously made clear that the Government should not be permitted
to argue that Reiter killed Battista (supra) did not object
when this statement was made in summation. This reflects not
ineffective assistance of counsel, but instead counsel's
reasonable belief that the prosecutor's statement in summation
did not constitute the type of improper argument the Government
had agreed at sidebar not to make.
Issue # 4: Discovery of "New Evidence" Allegedly
Impeaching the Testimony of James Jackson
Reiter contends in Issue # 4 that he has newly discovered
evidence that would have contradicted Jackson's testimony that
the scar on Romero's hand came from a wound that Romero received during the murder of Barry "Bones" Wilson.
(5/16/02 Amendment at 41-45). The purported new evidence consists
of (1) a letter from Romero, dated June 28, 2000, in which Romero
claims that he received the scar on his hand as a result of a
fight with his girlfriend; and (2) an "easy-to-make" affidavit
from David Bell dated August 7, 2000 long after the trial in
which Bell claims that he was never in a midtown hotel room with
Jackson and Romero in 1982, from which Reiter contends that
Jackson's testimony concerning the meeting with Reiter was a
As an initial matter, Romero's proposed innocent explanation of
the scar on his hand was not newly discovered news to Reiter.
Indeed, during trial, Reiter's trial counsel informed the Court
in the context of arguing that the Government should be required
to immunize Romero that counsel had been informed Romero did
not receive the cut on his hand as the result of a homicide. (Tr.
In any event, it is plain from the dates on Romero's letter and
Bell's affidavit that Reiter waited almost two years to assert
this claim from the time that he either allegedly learned of it,
or could have discovered it through the exercise of reasonable
diligence. Accordingly, this issue is also time barred. See
18 U.S.C. § 2255(4) (the one year statute of limitations runs from
the "date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
Nor can the claim be said to relate back to Reiter's original
claims. Although Reiter initially raised a claim based on
purportedly exculpatory material concerning the murders of Steven
and Beverly Ash, he made no reference to the scar on Romero's
hand, which was according to the testimony at trial the
result of a cut received during the murder of Barry "Bones" Wilson. Because this claim arises out of a different set
of facts and is of a different type, it is time-barred.
Moreover, even if it were not untimely, this claim is
procedurally barred. Reiter attempted to call Romero at trial to
testify about his scar, but Romero invoked his Fifth Amendment
right and refused to testify. (Tr. 6235-36). On appeal Reiter
argued unsuccessfully that the Government should have been forced
to grant Romero immunity so that he could testify. Reiter cannot
now relitigate this issue under the guise of "newly discovered
evidence." It is well settled that federal prisoners may not use
a Section 2255 motion to relitigate issues raised and addressed
on direct appeal. See, e.g., Riascos-Prado v. United
States, 66 F.3d 30, 33 (2d Cir. 1995). If the same issue was
raised and addressed on appeal in a slightly different form, it
is considered raised and addressed. Id. at 34 (holding that a
habeas corpus claim that is merely a "slightly altered
rearticulation of a claim that was rejected on . . . direct
appeal" is still considered "raised and addressed."); see also
Talj v. United States, 1997 WL 249964, at *6, n. 2 (S.D.N.Y.
May 12, 1997).
Furthermore, even if Romero had been immunized, trial counsel
could hardly have expected him to be helpful as a defense
witness. Romero who had previously been convicted of heroin
distribution offenses was identified by several witnesses as a
key participant in the Jackson organization, and was convincingly
portrayed as an extremely vicious individual even apart from the
Barry "Bones" Wilson throat-slashing incident. Assuming,
arguendo, that Romero had been immunized and had agreed to
testify, his credibility could hardly have survived much "kicking
around", and he could well have further incriminated not only
Reiter, but Reiter's co-defendants as well. As argued by the
Government on direct appeal, Reiter's strategy was transparent: make the utterly implausible claim that the defense
was dependent on the testimony of criminal accomplices and
co-racketeers, and then claim a denial of due process based on
the Government's refusal to provide blanket use immunity to the
Issue # 5: The Government Failed to Disclose All
the "Deals" Given to James Jackson
Reiter contends in Issue #5 that the Government failed to
disclose evidence of an agreement with James Jackson to not
prosecute him for the murder of Daisy Whitten. (5/16/02 Amendment
at 46-49). In any event, Jackson testified about the many
agreements he had with the Manhattan District Attorney's Office,
the Bronx District Attorney's Office, and the United States
Attorney's Office, and those agreements were entered in evidence.
These included his admitting involvement in over ten murders, of
which he personally committed four. He also testified that
because he had failed to tell the Government about the Daisy
Whitten homicide until after the plea agreements were signed, he
could be prosecuted for that homicide. (Id. at 46-47 (quoting
Tr. 611-612, 61516, 699-700)). Ultimately, Jackson was not
prosecuted for the murder of Daisy Whitten. On that basis, Reiter
speculates that the Government had made another "deal" with
Jackson that was never disclosed to the defense and the jury
against the above numerous admitted murders. But the absence of a
specific agreement as to the Daisy Whitten murder as to which
Jackson admitted on this trial could hardly have had further jury
Finally, this claim is time-barred because it bears no relation
to the claims asserted in Reiter's initial petition. In his
initial § 2255 motion, he made no mention of any undisclosed
promises to Jackson. Issue # 6: The Government Failed To Disclose
Exculpatory Information From Mike Levy, and Presented
At Trial A False Theory That Levy Was A Reiter
In Issue # 6, Reiter alleges that the Government falsely argued
to the jury that Mike Levy was a supervisee of Reiter's, and
improperly failed to disclose the substance of a 1987 interview
of Levy by the prosecutors, during which Levy denied any
involvement in Reiter's narcotics business. Again, this claim
bears no relation to the claims asserted in Reiter's initial
petition, because it arises out of a different set of facts and
is different in both time and type. Accordingly, this claim is
time-barred and is rejected.
In any event, for several reasons this claim fails on the
merits. Jackson, in the earliest days of the trial testified that
through Mike Levy, who had a clothing store, (Gianpietro's) was
one way to contact Reiter. (Tr. 445-6).*fn6
Q. Directing your attention to sometime later in
1984, did there come a time when you attempted to
contact the defendant, Mark Reiter?
Q. How did you attempt to contact him?
A. Well, my sources, the guys that were my connects,
were all tied up, one got busted. I went down to
Gianpietro and I spoke to Mike Levy. I said, "Listen,
I got to get in touch with Mark."
Levy would get in touch with me. He said, "Wait right
here." He went outside of the store and came back and
said, "He'll be here in a little while." About 15, 20
minutes, Mark arrived.
First, Reiter mischaracterizes Levy's affidavit when he argues
that Maria Galeno, "the lead prosecutor" in Reiter's case, "conducted" an interview of
Levy in 1987. (5/16/02 Amendment at 51). The most that Levy
himself says about AUSA Galeno is that she was "[o]ne U.S.
Attorney who kept coming in and out of the room." (Levy Aff. at T
11, App. 118-120, 5/16/02 Amendment). Second, Levy's post-trial
denial of any participation in Reiter's enterprise by no means
demonstrates the Levy was not involved. Nor, obviously, does it
demonstrate the Government's knowledge that he was not
involved. Finally, Reiter himself, knowing of Levy from the early
trial testimony, would have known full well what Levy would say
if, in fact, Reiter had never used Levy or Gianpietro's to
facilitate narcotics trafficking, or if, in fact, Reiter had
never exercised any supervision over Levy's activities. Nothing
prevented Reiter from calling Levy as a defense witness.
Therefore, even if Levy's new and self-serving testimony were
credited, the Government did not suppress any evidence in
violation of its Brady obligations. See United States v.
Payne, 63 F.3d 1200, 1208 (2d Cir. 1995) ("evidence is not
considered to have been suppressed within the meaning of the
Brady doctrine if the defendant or his attorney either knew, or
should have known, of the essential facts permitting him to take
advantage of that evidence" (quotations omitted)); United States
v. Middlemiss, 217 F.3d 112
, 123 (2d Cir. 2000) ("Because
defendants already were aware of the allegedly exculpatory
evidence, they suffered no Brady violation"); United States v.
Zagari, 111 F.3d 307, 320 (2d Cir. 1997) ("Brady cannot be
violated if the defendants had actual knowledge of the relevant
Issue # 7(A): The Court Failed to Instruct the
Jury That A Government Informant Cannot Be a
Issue # 7(B): The Court Failed to Instruct the
Jury That A Mere Purchaser Cannot Be A Supervisee Issue # 16 (A): The Court Failed to Instruct the
Jury That A Government Informant Cannot Be a
Co-Conspirator Under RICO
Issue # 16 (B): The Court Failed to Instruct the
Jury That A Mere Purchaser Cannot Be A Co-Conspirator
In Issues 7(A) & (B), Reiter alleges that the Court failed
properly to instruct the jury regarding who could properly be
considered a supervisee for purposes of the CCE count. Similarly,
in Issues 16(A) & (B), Reiter alleges that the Court failed to
properly instruct the jury regarding who could properly be
considered a co-conspirator for purposes of Racketeering Act 9 in
Count 1. Reiter contends that, as a matter of law, neither
informants, nor "mere purchasers" of controlled substances can be
considered to be supervisees or co-conpirators. He further
contends that his trial counsel was ineffective for failing to
object to these instruction, and his appellate counsel was
ineffective for failing to raise these arguments on appeal.
These claims bear no relation to the claims asserted in
Reiter's initial petition. They arise out of a different set of
facts and are different in both time and type. None of the claims
in Reiter's initial § 2255 motion concerned the Court's
instructions to the jury, in general, or the elements of the CCE
count or RICO counts, in particular. Accordingly, they are
time-barred and are dismissed. (And see further discussion hereon
under "Issue 8" immediately hereafter).
Issue # 8: Insufficient Evidence To Find That
Reiter Organized, Supervised, Or Managed Five or More
In Issue #8, Reiter contends that there was insufficient
evidence for the jury to find him guilty on the CCE count,
21 U.S.C. § 848, because there was insufficient evidence to prove
that he had supervised five or more persons. This claim, however,
bears no relation to the claims asserted in Reiter's initial
petition. It arises out of a different set of facts and is
different in both time and type. None of the claims in Reiter's initial § 2255
motion concerned the sufficiency of the evidence, in general, or
the CCE count, in particular. Accordingly, this claim is
time-barred and is dismissed.
Furthermore, Reiter raised this very same argument on appeal
and it was rejected by the Second Circuit. See United States
v. Reiter, 897 F.2d 639, 646 (1989). In his appellate brief,
Reiter argued that the jury might not have found that five or
more individuals were supervised by him because the Government
had failed to introduce sufficient evidence at trial. In
particular, Reiter contended that there was insufficient evidence
that his son, Greg Reiter, and Catherine Burke were supervisees.
Similarly, Reiter contends in his amended petition that there was
insufficient evidence for the jury to find that he supervised
Greg Reiter and Catherine Burke, among others. (5/16/02 Amendment
at 64-72). Reiter cannot relitigate this issue. See, e.g.,
Riascos-Prado v. United States, 66 F.3d 30, 33 (2d Cir.
Finally, this is not the type of claim cognizable under Section
2255. The courts have repeatedly held that "[c]ollateral attack
on a final judgment in a federal criminal case is generally
available under § 2255 only for a constitutional error, a lack of
jurisdiction in the sentencing court, or an error of law or fact
that constitutes `a fundamental defect which inherently results
in a complete miscarriage of justice.'" United States v. Bokun,
73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States,
368 U.S. 424, 428 (1962)). A challenge to the sufficiency of the
evidence falls well beyond these narrow limits.
Issue # 9: The Telephone Count, 21 U.S.C. § 843,
Must Be Overturned
In Issue #9, Reiter argues that the Court improperly instructed
the jury that a conversation warning another person about a
threat to a criminal narcotics conspiracy could be a violation of 21 U.S.C. § 843. This claim, however, bears no relation to the
claims asserted in Reiter's initial petition. It arises out of a
different set of facts and is different in both time and type.
None of the claims in Reiter's initial § 2255 motion concerned
the jury instructions, in general, or the telephone count, in
particular. Accordingly, this claim is time-barred and is
Furthermore, even if this claim were timely, it fails on the
merits. Although Reiter's counsel objected to the jury
instruction during the trial, see 5/16/02 Amendment at 74-75,
Reiter failed to raise the issue on appeal. It is well-settled
that those convicted of federal crimes may not "save" claims for
a habeas petition that they could have raised on direct appeal.
See United States v. Frady, 456 U.S. 152, 167-68 (1982).
The only exceptions to this rule are claims based on the
allegedly ineffective assistance of counsel, Billy-Eko v.
United States, 8 F.3d 111, 114 (2d Cir. 1993), and cases where
"failure to consider the claims will result in a fundamental
miscarriage of justice." Coleman v. Thompson, 501 U.S. 722,
750 (1991). Reiter has not claimed the benefit of either
exception for Issue # 9. Therefore, the claim is dismissed.
Issue # 10: The Court Constructively Amended Count
Five of the Indictment
In Issue #10, Reiter contends that the Court constructively
amended Count 5 of the Indictment by failing to instruct the jury
that it must find that Reiter distributed at least 100 grams of
heroin. As with the other issues discussed above, this claim
bears no relation to the claims asserted in Reiter's initial
petition. It arises out of a different set of facts and is
different in both time and type. None of the claims in Reiter's
initial § 2255 motion concerned the adequacy of the Courts'
instructions to the jury or Count 5 of the Indictment.
Accordingly, this claim is time-barred and is dismissed.
Issue # 12: The Court Constructively Amended the
Indictment as to Supervisees In Issue #12, Reiter contends that the Court constructively
amended the Indictment when it instructed the jury that the
supervisees in the CCE count, and the coconspirators in
Racketeering Act 8, need not be co-defendants nor persons
specifically identified in the Indictment. This claim, however,
bears no relation to the claims asserted in Reiter's initial
petition. It arises out of a different set of facts and is
different in both time and type. None of the claims in Reiter's
initial § 2255 motion concerned the adequacy of the Courts'
instructions to the jury, in general, or the charges for Count 3
of the Indictment or Racketeering Count 8, in particular.
In any event, Reiter is procedurally barred from raising this
issue. Although Reiter's counsel objected at trial to the jury
charge, Reiter failed to raise this issue on appeal. Therefore,
he cannot raise it now in his § 2255 motion. See Frady,
456 U.S. at 167-68.
Moreover, this claim fails on the merits. The Court's
instruction was entirely proper. As Reiter admits, the Government
sent him two letters listing alleged supervisees and unindicted
co-conspirators. At trial, the only individuals that the
Government argued were supervisees and/or co-conspirators were
among the names it had previously disclosed in its letters. Not
all of these individuals, however, had been indicted as
coconspirators or otherwise named in the Indictment. Therefore,
the Court correctly instructed the jury that the five supervisees
necessary for a violation of Count 3 "may be persons identified
in the indictment or they may be others." (Tr. 9681). Compare
Sand, Modern Federal Jury Instructions, Instr. 56-29 ("These
persons do not have to be named in the indictment. They could be
others. . . .").
Issue # 13: The Jury Instructions Constructively
Amended the "Violations" Identified in the CCE
Count In another attack on the CCE instructions to the jury, Reiter
claims in Issue #13 that the Court constructively amended the
Indictment by directing the jury to consider "violations" that
were not specifically identified in the Indictment as part of the
"continuing series of violations." (5/16/02 Amendment at 93-99).
As discussed above, none of the claims in Reiter's initial § 2255
motion concerned the adequacy of the Courts' instructions to the
jury, in general, or the CCE charges, in particular. Therefore,
Issue # 13 does not relate back to the original petition and are
dismissed as untimely.
In any event, this claim fails on the merits. It was not
improper for the Court to charge that the jury could consider
violations that were not "separately charged" in the Indictment.
(5/16/02 Amendment at 95 (quoting Tr. 9681)). Even
post-Richardson in which the Supreme Court ruled that the
narcotics violations forming the "continuing series" must be
found by the jury beyond a reasonable doubt the model jury
charge contained in Modern Federal Jury Instructions for the
second element of a CCE count instructs: "These violations do not
have to be convictions or separate counts in the indictment."
Sand, Modern Federal Jury Instructions, Instr. 56-28.
Moreover, Reiter cannot raise this claim now, because he failed
to raise it on direct appeal. See Frady, 456 U.S. at 167-68.
Issue # 14: The Evidence Presented at Trial and
The Jury Instructions Constructively Amended the Time
Period Alleged in the Indictment for Count 3
Reiter's Issue #14 raises yet another claim that the CCE count
in the Indictment was constructively amended at trial. For the
reasons set forth in Issue Nos. 12 and 13, this claim does not
relate back to Reiter's initial petition and is dismissed as
untimely. Furthermore, this claim is procedurally barred because Reiter failed to raise it on appeal.
See Frady, 456 U.S. at 167-68.
Issue # 15: The Evidence Presented at Trial and
The Jury Instructions Constructively Amended Count 7
of the Indictment
In Count 7 of the Indictment (and Racketeering Act 12), Reiter
was charged with using a telephone in the commission of a
narcotics offense. Reiter alleges in Issue # 15 that this count
was constructively amended by an instruction that allowed the
jury to consider any phone call placed into evidence by the
Government, rather than the specific phone call identified in the
Indictment. (5/16/02 Supplement at 104-106).
This claim bears no relation to any of the claims asserted in
Reiter's initial petition. It arises out of a different set of
facts and is different in both time and type. None of the claims
in Reiter's initial § 2255 motion concerned the adequacy of the
Courts' instructions to the jury, in general, or the charges for
Count 7, in particular. See also, supra Issue # 9.
Furthermore, this claim fails on the merits. Reiter complains
about the following instruction given by the Court:
Although not specifically charged as separate crimes
in the indictment, the government contends that
defendant Mark Reiter committed numerous other
violations of Title 21, United States Code, Section
843 involving the unlawful use of a telephone
conversation in which Mark Reiter participated and
the government contends this was such an unlawful use
of the telephone under the statute to facilitate
narcotics transactions and can be considered by you
on this count.
(Tr. 9679, emphasis added). Contrary to Reiter's suggestion, this
charge was given not in connection with the telephone count or
the corresponding racketeering act both of which were
specifically related to the September 2, 1987 call in which
Ruggiero warned Reiter that Jackson had left the MCC, but instead
in connection with the CCE charge. Thus, there was no
constructive amendment of Count 7 or Racketeering Act 12. Issue # 17: The Court Improperly Instructed the
Jury That it Need Only Find One "Violation" To Find
Reiter Guilty On The CCE Count
In Issue #17, Reiter contends that the Court erroneously
instructed the jury that it need only find that Reiter committed
one narcotics offense, rather than a "continuing series of
violations" in order to convict him on the CCE count. (5/16/02
Amendment at 111-114). For the reasons set forth in Issue Nos.
12, 13, and 14, this claim does not relate back to Reiter's
initial petition and is dismissed as untimely.
Even if this claim were not time-barred, it fails on the
merits. Reiter misleadingly quotes from other portions of the
Court's instructions on the CCE count and misquotes the
instruction given for the second element of the offense. (5/16/02
Amendment at 112-13). The Court's actual instruction to the jury
on the CCE count was as follows:
The second element you must find . . . is that he
committed one or more of these offenses as part of a
continuing series of violations by him of federal
narcotics laws. In this case the word series means
three or more such violations.
(Tr. 9680). This instruction was proper and made it clear that
the jury needed to find that Reiter had committed at least three
Issue # 18: Apprendi Should Apply Retroactively
Reiter's sentence on Count 5 of the Indictment was based upon
drug amounts determined by the Court, rather than by the jury.
For this reason, Reiter argues in Issue #18 that he was sentenced
in violation of the Supreme Court's ruling in Apprendi v. New
Jersey, 530 U.S. 466 (2000), and that Apprendi should be
applied retroactively to reduce his sentence. This claim fails
because the Second Circuit Court of Appeals has joined many other
circuits in holding that Apprendi does not apply retroactively.
United States v. Coleman, 329 F.3d 77 (2d Cir. 2003). The Second Amendment to the Petition: Insufficiency of The
Evidence On Count Five
On December 18, 2002, Reiter filed a second amendment to his
petition, in which he argued that the evidence was insufficient
for the Court to sentence him on Count Five based on 100 grams of
heroin. This claim bears no relation to any of the claims
asserted in Reiter's initial petition. It arises out of a
different set of facts and is different in both time and type.
Accordingly, it is time-barred.
In addition, this is not the type of claim cognizable under
Section 2255, because it does not allege "a constitutional error,
a lack of jurisdiction in the sentencing court, or an error of
law or fact that constitutes `a fundamental defect which
inherently results in a complete miscarriage of justice.'"
United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (citation
omitted). The Second Amendment to the Petition is therefore
B. Reiter's Original Claims Should Be Dismissed
Turning to the claims asserted by Reiter in his original
petition, as amplified by his later submissions, the essence
appears to be that William "Billy" Battista was an FBI informant
during the 1982-83 period, that Battista was being debriefed by
an FBI agent concerning Reiter during that period, that Battista
never mentioned having accompanied Reiter to a hotel room in
midtown for a discussion with Romero and James Jackson about
killing Beverly and Steven Ash, that Battista would have
mentioned such a meeting had it occurred, that the absence of any
such mention in the debriefing reports was exculpatory because it
undermined Jackson's testimony, that Battista further informed
the FBI that Reiter was not in New York prior to 1982 and
therefore could not have attended the hotel room meeting
described by Jackson, that the Government suppressed those reports in violation of its Brady
obligations, and that the Government "hid" Battista from the
defense because his testimony would have impeached Jackson.
Reiter further claimed that these matters and other exculpatory
matters including an alternative theory to Jackson's as to why
the Ashes were murdered, i.e., that Beverly Ash was viewed as a
possible witness against Reiter were discussed during a court
proceeding at which Reiter was not present, and that Reiter did
not learn about them for two years. (Discussed already supra p.
8). Reiter contends that his trial counsel failed to learn about
and investigate the alternative theory, and that his appellate
counsel failed to assert a claim that the Government had violated
its Brady obligations. Reiter asserts that he has repeatedly
sought under FOIA and the Privacy Act the reports that would
support these claims, but that the records have not been
Reiter's claims are meritless for a wide variety of reasons.
First, if in fact there was no hotel room meeting in 1982 at
which Reiter directed the murders of Beverly and Steven Ash, then
Reiter did not need FBI 302's or other reports of debriefings of
Battista to know that if he called Battista as a defense witness,
Batista would deny that such a meeting had occurred since Reiter
according to him knew perfectly well what Battista would say
about whether any such meeting had occurred, the Government
cannot be accused of having suppressed that information under
Brady. Similarly, if Reiter was not in New York during late
1982 and Battista had knowledge of his whereabouts, he did not
need to be informed of those facts through FBI debriefing reports
of Battista. See United States v. Payne, 63 F.3d 1200, 1208
(2d Cir. 1995) ("evidence is not considered to have been
suppressed within the meaning of the Brady doctrine if the
defendant or his attorney either knew, or should have known, of
the essential facts permitting him to take advantage of that evidence" (quotations omitted));
United States v. Middlemiss, 217 F.3d 112, 123 (2d Cir. 2000)
("Because defendants already were aware of the allegedly
exculpatory evidence, they suffered no Brady violation");
United States v. Zagari, 111 F.3d 307, 320 (2d Cir. 1997)
("Brady cannot be violated if the defendants had actual
knowledge of the relevant information").
Second, as Reiter concedes, the essential facts he says were
"suppressed" by the Government were in fact all revealed at a
hearing during the trial held by the Court at the request of
counsel for codefendant Raymond Clark on August 1, 1988.
Specifically, on that day, Special Agent Patrick Colgan testified
that he was Battista's FBI supervisor, and that Battista never
disclosed to him any information about Reiter's participation in
a homicide. (Tr. 7977-78). Thus, these facts were part of the
public record, and therefore could not have been "suppressed"
within the meaning of Brady. A copy of the transcript of that
hearing is attached hereto as Exhibit D to the Government's
papers on this motion. Even if it is true that Reiter did not
familiarize himself with this portion of the transcript until two
years later, his inattention to the matter does not make out a
Brady violation against the Government.
Third, the record makes plain that the Government did not
"hide" Battista from the defense, but that Battista had become a
fugitive after it was revealed that he was an informant for the
FBI. (Tr. 7572-73). Reiter and his counsel knew this because they
were present in court when this testimony was elicited from FBI
Special Agent Noone. Furthermore, Mr. Slotnick informed the Court
that the FBI had revealed Battista's informant status during a
trial in the Eastern District of New York, that he "had the whole
file," and that Battista was at the time of the trial living
"in Mexico someplace." (Tr. 7520-21). Fourth, copies of FBI debriefing reports that are currently in
the possession of the United States Attorney's Office were
provided separately for the in camera review which I made and
have sealed for appellate review.*fn7 These reports do not
support Reiter's claim that had Battista been available, he would
have testified that Reiter was not in New York in late 1982 when
the hotel meeting took place.
Fifth, as the FBI agents and defense counsel made clear to the
Court at trial, Battista was not available to testify for either
party at trial. Had Reiter's attorney sought to impeach Jackson
by calling Special Agent Colgan to testify about Battista's
debriefings, counsel presumably would have opened the door to all
of the information provided by Battista that corroborated
Jackson's testimony about Reiter's large-scale involvement in
heroin trafficking. Moreover, even had Agent Colgan testified
that Battista never mentioned Reiter's participation in the
homicides, Battista's failure to mention that meeting by no means
established that the meeting never took place; indeed, given that
Battista would have implicated himself in a murder conspiracy had
he disclosed such a meeting to the FBI, his reticence would have
been understandable. Under the circumstances, it could hardly be
considered "ineffective assistance" for defense counsel to have
declined to pursue such a strategy.
Finally, the only "alternative theory" of a motive for the Ash
murders mentioned by Reiter in his submissions is a theory that
Beverly Ash was a possible witness against Reiter. (See 12/29/98
Supplement at 5). As an initial matter, this "alternative theory"
could hardly be considered "exculpatory" of Reiter. To the
contrary, this theory gives Reiter an even more direct motive to kill the Ashes than a theory that indirectly implicates
the Ashes through the cooperation of Leroy "Nicky" Barnes. In any
event, this "alternative" theory is not alternative at all; it is
entirely consistent with Jackson's testimony that, at the hotel
meeting, Reiter explained that Beverly and Steven Ash "could hurt
us and hurt a lot of people," (Tr. 317-8) which a listener could
have interpreted to be a reference to their possible cooperation.
Accordingly, I cannot conclude that the Government suppressed
exculpatory evidence concerning the Ash murders. Conversely I
cannot find that trial counsel was ineffective for having failed
to pursue additional evidence concerning William Battista. Nor,
obviously, was appellate counsel ineffective for failing to
assert a Brady violation on appeal. This claim is dismissed.
C. Reiter's Claim Under Richardson Should Be Dismissed
In Richardson v. United States, 526 U.S. 813 (1999), the
Supreme Court ruled that in order for a defendant to be convicted
under the CCE statute, 21 U.S.C. § 848, the jury must unanimously
agree not only that defendant committed a continuing series of
violations, but also about which specific "violations" make up
that "continuing series." Because Reiter was tried before the
rule in Richardson was announced, the jury in this case was not
so instructed by the Court. The Court of Appeals has ruled that
Richardson is to be applied retroactively on collateral review.
Santana-Madera v. United States, 260 F.3d 133 (2d Cir. 2001).
However, the Court of Appeals has also made plain that a harmless
error analysis applies. Id. In Santana-Madera, the Second Circuit found harmless error
where the trial court, prior to Richardson, had failed to
instruct that the jury was required to agree unanimously as to
which violations made up the "series" necessary for conviction
under the CCE statute. However, the jury had simultaneously
convicted the defendant of eight substantive narcotics offenses
as well as a conspiracy to distribute narcotics. The Court held:
So, if the district court were clairvoyant and had
given the jury the instruction required by
Richardson, it is beyond cavil that the jurors would
have unanimously agreed on three predicate violations
of the drug laws. They unanimously agreed on nine
such violations. The error here . . . is clearly
260 F.3d at 141.
Precisely the same logic applies here. Reiter was convicted of
two substantive heroin distribution violations (Counts Five and
Six), as well as one count of using a telephone to facilitate
narcotics trafficking. (Count Seven). Thus, had this Court
instructed the jury, pursuant to Richardson, that it had to
agree unanimously and beyond a reasonable doubt that Reiter had
committed at least three narcotics violations, it clearly would
have done so. Thus, the error was plainly harmless.*fn9
Reiter's Richardson claim is therefore dismissed. Conclusion
Accordingly, for the forgoing reasons, Reiter's § 2255 petition
is dismissed in its entirety.
So ordered. EXHIBIT A
[EDITORS' NOTE: EXHIBIT A IS ELECTRONICALLY NON-TRANSFERRABLE.] Reiter, Clark, Rollack, Dicks and Smith are serving their
Statement of Facts
A. The Government's Case
The proof at trial abundantly established that each of the five
defendants participated in a racketeering enterprise headed by
cooperating witness James Jackson, an enterprise that distributed
vast quantities of heroin supplied by the continuing criminal
enterprise supervised by defendant Mark Reiter. The Government
proved that members of the racketeering enterprise distributed
millions of dollars' worth of narcotics over a seven-year period
in New York, Connecticut, Washington, D.C., and other locations
on the East Coast, and committed more
30 years' imprisonment on Count Eight to be followed by
life-time special parole, and 30 years' imprisonment on Count
Nine, to be followed by lifetime special parole. The sentences on
Counts One and Nine are to run consecutively with each other; the
sentences on Counts Four and Eight are to run concurrently with
each other and consecutive to the sentence on Count Two; and the
sentences as cumulated on Counts Two, Four, and Eight are to run
concurrently with the sentences as cumulated on Counts One and
Dicks was sentenced to 15 years' imprisonment on each of Counts
One and Two to run concurrently with each other but consecutive
to the 10-year prison term imposed on him in the District of
Connecticut. Dicks was also fined $100,000 on each of Counts One
and Two, those fines to run concurrently. Smith was sentenced to
20 years' imprisonment on Count One, 15 years' imprisonment on
Count Eleven, to be followed by lifetime special parole, and 15
years' imprisonment on Count Twelve, to be followed by lifetime
special parole, those sentences to run consecutively. On each of
Counts Two and Four, Judge Owen sentenced Smith to 20 years'
imprisonment, to run concurrently with each other and with the
sentence on Count One. than a dozen murders to protect and promote their enterprise. In
particular, the Government proved that one or more of the
defendants on trial were responsible for at least seven murders
and two attempted murders, including one murder in which the
victim's throat was slit with a straight-edged razor, after the
victim had been tortured in an effort to obtain information from
Each defendant played an important role in the activities of
the racketeering enterprise. Defendant Mark Reiter provided the
Jackson organization with its supply of pure heroin and ordered
the organization to commit the murders of Beverly Ash and Steven
Ash. Although Jackson purchased approximately 45 kilograms of
pure heroin worth more than 10 million dollars from Reiter, the
evidence also showed that Reiter was a major supplier of heroin
to others, including Peter Monsanto, Mitchell Jackson, Warren
Tyson, Alan Morris, and Joseph Hayden, a/k/a "Jazz." Defendant
Raymond Clark acted as the "enforcer" for the Jackson
organization and shot to death at least three of the enterprise's
victims. Defendant Timothy Smith distributed sizeable quantities
of the organization's heroin and participated in the murders or
attempted murders of six men. Defendant Leonard Rollack also
distributed the enterprise's drugs and directed the murder of a
rival drug dealer. Finally, defendant Alfred Dicks was one of the
two largest wholesale customers of the Jackson organization's
heroin and provided storage facilities for the enterprise's
arsenal of weapons used in a premeditated shootout in Bridgeport,
The Government's proof at trial consisted of 60 witnesses and
more than 450 exhibits. Those witnesses included Jackson
himself,* other former members of the
* On September 15, 1987, Jackson entered into cooperation
agreements with the United States Attorney's Office for the Jackson racketeering enterprise, Leroy "Nicky" Barnes,* and
workers whom Mark Reiter had supervised in his continuing
criminal enterprise, including two of his closest assistants,
Vito Loiacono and Salvatore Corallo. The Government also
presented the testimony of surveillance agents and agents who had
participated in various arrests and searches, and a vast array of
physical evidence, including narcotics and narcotics
paraphernalia, drug records, address books, and tape-recorded
Southern District of New York, the New York County District
Attorney's Office, and the Bronx County District Attorney's
Office. On September 15, 1987, pursuant to those agreements,
Jackson pled guilty before Judge Owen to one count of
participation in a racketeering enterprise, one count of
possession of heroin with the intent to distribute it, and two
counts of tax evasion. Those counts together carried a maximum
term of imprisonment of forty-five years. Jackson also agreed not
to contest forfeiture proceedings in connection with the
Government's seizure of a 1986 Mercedes Benz; a mink coat; and
certain jewelry valued in excess of $80,000. In accordance with
his agreements with the Government, Jackson will not be further
prosecuted for narcotics or tax violations which he committed
prior to the execution of the agreements. On February 8, 1989,
Judge Owen sentenced Jackson to a term of imprisonment of 25
years, to be followed by a special parole term of 25 years.
Jackson is currently serving his sentence.
* Barnes was convicted after trial in 1978 of operating a
continuing criminal narcotics enterprise, in violation of Title
21, United States Code, Section 848. The late Honorable Henry F.
Werker sentenced Barnes to life imprisonment without parole. In
July 1981 Barnes contacted the United States Attorney's Office
for the Southern District of New York and began cooperating with
the Government. Pursuant to a cooperation agreement with the
Government, Barnes pleaded guilty in 1983 to participation in a
racketeering enterprise involving narcotics trafficking and
murder between January 1972 and July 1981. In August 1986 the
Honorable Milton Pollack sentenced Barnes to a ten-year term of
imprisonment, to run concurrently with his life sentence. As part
of its understanding with Barnes, the Government agreed to inform
the Department of Justice's Pardon Attorney, who handles clemency
applications, of Barnes' cooperation. Barnes is currently serving
his sentence and has an application for clemency pending. obtained through a court-ordered wiretap on Reiter's telephone.
That evidence overwhelmingly established the existence of both
the charged racketeering enterprise and the continuing criminal
enterprise, and it established each defendant's participation in
the criminal affairs of one or both of those enterprises.
2. The Origins of The Racketeering Enterprise
a. The Formation of the Enterprise
The roots of James Jackson's narcotics enterprise, which at its
height distributed as much as a quarter of a million dollars'
worth of heroin per week (Tr. 396),* go back to 1979-1980, when
Jackson was serving a sentence for bank robbery at the Federal
Correctional Facility in Ashland, Kentucky. Jackson became
friends with defendant Leonard "Petey" Rollack, Eugene Romero and
Joseph Bethea. (Tr. 158-66, 188-89, 1415-21). While in jail,
Rollack gave Jackson instructions about how to conduct a
narcotics business and informed Jackson that their fellow inmate
Romero was the nephew of former Harlem drug kingpin Nicky Barnes.
(Tr. 162-64, 892). In the spring of 1980, when Jackson was
released to a half-way house, he re-established contact with
Romero, who was selling heroin in partnership with one Steven
* "Tr." refers to the trial transcript; "GX" refers to the
Government's exhibits at trial; "[Name] DX" refers to the named
defendant's exhibits at trial; "[Date] Tr." refers to the
transcript of a proceeding held on the specified date; "[Name]
Br." refers to the named defendant's brief on appeal; "App."
refers to the joint appendix; and "Smith App." refers to the
appendix filed by Smith and erroneously labelled a "Joint
Appendix." The Government objected to the appendix because it
contained materials not in the record and not submitted to the
District Court. Smith subsequently filed a second appendix but
failed to paginate it. Notwithstanding the Government's
objections to it, for the convenience of the Court, the
Government will herein refer to Smith's first so-called "Joint
Appendix," which is paginated. 165, 198, 217, 302, 309, 8636). At about that time, Romero
introduced Jackson to defendants Timothy Smith, a/k/a
"Heartbeat," and Raymond Clark, a/k/a "Romar." (Tr. 198-99,
240-44). Romero told Jackson to take instructions and learn the
drug trade from Smith (Tr. 198-201), and he also informed Jackson
that "Romar" was the "enforcer" for Romero's organization. (Tr.
235, 4636, 6100). While still at the half-way house, Jackson, at
Romero's direction, committed his first homicide by shooting
Harry Hansen at a bar. (Tr. 203-211, 614-15, 682-86, 713, 824).
After the murder, it was Timothy Smith who drove Jackson back to
the half-way house. (Tr. 210).
After having learned about the heroin trade from Smith and
having been released from the half-way house, Jackson started
selling heroin out of a hotel on 116th Street in Manhattan. (Tr.
217). Jackson worked with a partner, Stephen Cobbs, who was
Romero's cousin and whom Romero had introduced to Jackson. (Tr.
211). During that period, Jackson and Cobbs sold approximately
150 to 200 "quarters" of heroin per day, at a retail price of
between 30 to 40 dollars per quarter. (Tr. 220). The operation
soon expanded to 117th Street in Manhattan, and Jackson gradually
recruited additional workers, including Teddy Key, Marco Wyche,
Matthew Walton and Rodney Stokes. (Tr. 225). Starting in 1980,
the enterprise also distributed heroin in Bridgeport,
Connecticut, using co-racketeers Warren Cooper, Tyrone Johnson,
Jerome Hart and, sometime later, defendant Alfred Dicks. (Tr.
226-27). Jackson was introduced to Dicks by Tyrone Johnson, and
Dicks came to be one of the two larger heroin customers of the
enterprise. (Tr. 227-28, 620).
During one of his trips to Connecticut, Jackson was arrested on
a charge of attempted murder, but the case was dismissed after
Romero and Raymond Clark had induced the intended victims to make
false statements exonerating Jackson. (Tr. 229-38). When Jackson had difficulty raising bail
money in connection with his Connecticut arrest, in an obvious
reference to defendant Mark Reiter, Romero told Jackson that his
partner Steven Ash would reach out to his new "white" heroin
supplier. (Tr. 309). Ultimately, however, it was co-racketeer
Leonard Rollack who provided the $5,000 cash bail that Jackson
required. (Tr. 310).
b. The Killing of Allen Bailey
In 1980 Timothy Smith, already a prominent member of Romero's
organization, was selling the heroin that he received from Romero
on 112th Street and Eighth Avenue in Manhattan (Tr. 242-43, 403).
During a period when Smith's supply of heroin had been
interrupted, Smith allowed another drug dealer, Allen Bailey, who
relied on a different supplier, James Pridgen, to sell on the
same block so that customers would continue to frequent the
block. (Tr. 242-43, 251-52). When Smith's supply of heroin
resumed, he came to learn that Allen Bailey's heroin was superior
in quality and thus ordered Bailey to leave the block (Tr. 244).
At around that time, shots had been fired at Smith and his
fiancee, and Smith was told by a woman named "China" that Bailey
was responsible. (Tr. 244-46).* Smith believed that Bailey had
been ordered to kill him by Bailey's supplier, James Pridgen.
In January of 1981, Romero learned Allen Bailey's address and
directed Smith and an accomplice named "Moon" to kill him. (Tr.
247). Some hours later, Moon returned and told Romero and Jackson
that Bailey had been killed and that Smith had been accidentally
wounded in the cross-fire. Romero told Jackson to go with another
* An address book seized from co-racketeer Leonard Rollack
contains a listing for "China." (GX 564). accomplice, Mike Sammersville, a/k/a "Bama Mike," to find out the
hospital where Smith was being treated. (Tr. 248-49). Travelling
in Romero's blue Volvo, Jackson and "Bama Mike" discovered that
Smith had been transferred from the hospital where he had
originally been taken to Jacobi Hospital in the Bronx. (Tr. 249).
After visiting Smith at Jacobi, Jackson and "Bama Mike" were
questioned by police at the hospital and arrested. (Tr. 250,
5506-15). The police also discovered a photograph in Romero's car
showing Jackson with Smith, a photograph which demonstrated that
Jackson had been lying when he told the police that he had not
come to the hospital to visit Smith. (Tr. 250, 5510-17). No
charges were brought against Jackson at that time, however. (Tr.
Smith subsequently told Jackson about the details of the murder
of Allen Bailey, explaining that he and Moon had spotted Bailey
at the trunk of his car near Bailey's residence and had
approached him, one on either side. (Tr. 250-51). Smith further
reported to Jackson that Moon had accidentally shot Smith and
that the bullet was still lodged in Smith's body. (Tr. 251).*
* Jackson's testimony was corroborated by substantial
additional evidence introduced at trial. Photographs of the crime
scene showed that Bailey indeed had been shot at the trunk of a
car; hospital records showed that Smith had been admitted under a
false name to two hospitals for treatment of a bullet wound
within hours of the shooting; a stipulation established that
Smith had a scar on his stomach consistent with a bullet wound;
shell casings and physical evidence at the scene of the homicide
showed that at least two weapons had been used in the killing of
Bailey; and live ammunition found on Smith at the hospital
matched in caliber the bullets used in the killing of Bailey. (GX
505). In addition, Detective Richard Cattrano, who investigated
the Bailey homicide on the night it occurred, confirmed Jackson's
testimony about his and Sammersville's visit to the hospital and
further testified that Smith had claimed to be the victim of an
attempted robbery. (Tr. 5503-17). c. The Murder of Ronald Burroughs and One of His Bodyguards
At a meeting of the co-racketeers at which Jackson, Smith,
Romero and others were present, Romero informed the group that a
rival drug dealer and sometime extortionist known as "Black
Ronnie" had to be killed. (Tr. 256-58, 2964). The plan was to
kill "Black Ronnie," whose real name was Ronald Burroughs, that
same night at a discotheque known as "Reflections." Burroughs,
however, failed to appear at the club that evening. (Tr. 257-58).
The following Sunday, Jackson, Smith and others met again at
Reflections. Jackson instructed the group that once Burroughs had
arrived, he would fire at Burroughs and that the others should
then fire at Burroughs' bodyguards. (Tr. 259-60). While Burroughs
was dancing with Beverly Ash, a/k/a "Shamecca," Jackson shot him
and also fired at one of his bodyguards. (Tr. 260-62).
Immediately after shooting Burroughs, Jackson heard other shots
and thus was not sure whose shots actually downed the bodyguard.
(Tr. 261). A total of eight people were shot that night at
Reflections. Two of them Ronald Burroughs and his bodyguard Ray
Charles Brown died. (Tr. 1825-44; GX 510A-R). Smith held other
occupants of the club at bay with his gun so that Jackson could
escape. (Tr. 262). The participants then reunited at the
Showplace, where Smith and another co-racketeer named "Billy
Logan" each bragged to Romero that "he got his man." (Tr. 263).
Although Ronald Burroughs and one of his bodyguards had been
killed that night, the group viewed a television report at the
Showplace and learned that Billy Logan's target had only been
wounded. (Tr. 262-63, 1654-56).
Following the shooting, Guy Fisher, a member of Nicky Barnes'
narcotics "council," told Jackson that he had done "good work" at Reflections. (Tr. 265). Not withstanding
Fisher's praise, Jackson and Romero were concerned that Fisher
had learned that they were responsible for the shooting, and they
believed that Fisher's source of information was Cecil Kellman,
who had worked for Fisher prior to working for Jackson. (Tr.
265-66). Romero thus had Kellman killed. (Tr. 266-67, see also
Kellman had indeed discussed Burroughs' homicide with
associates of Nicky Barnes. One day Kellman told Walter Centano,
who had been convicted of distributing heroin along with Nicky
Barnes and others, to stay away from Reflections discotheque. A
few days or a week later, Kellman told Centano that they had
killed Burroughs while Burroughs was dancing with "Shamecca."
(Tr. 265-66, 2963-64). Kellman also told Centano that a man
nicknamed "Heartbeat" had participated in the shooting. (Tr.
d. The Killing of Norman Bannister
Norman Bannister, who was known as "Stormin' Norman," was a
drug dealer who sold heroin on 115th Street between 7th and 8th
Avenues in Manhattan a block that Leonard Rollack wished to
control. (Tr. 271-72, 402, 8328-31). Relations between Rollack
and Romero were close, and at one time, shortly after the three
men had been released from the Federal prison in Ashland,
Kentucky, Romero had Jackson deliver approximately. $35,000 to
Rollack. (Tr. 268-70). Sometime after Jackson had visited
Rollack's stash pad, Jackson saw Romero and Rollack talking in a
barber shop, and after that conversation, Romero exclaimed to
Jackson, "I got to do the Boxer [Rollack] a favor. I got to kill
somebody and I am not even going to get paid for it." (Tr. 270).
Later Jackson learned that it was Bannister whom Romero was going
to kill. (Tr. 270-72). Sometime later, Romero instructed Jackson to go to the Madrid
Bar in Manhattan, informing Jackson that Raymond Clark had just
shot Bannister and telling Jackson to make sure that Bannister
was really dead. (Tr. 272-74). Jackson saw Bannister's body, with
a head wound, being carried out to an ambulance and heard the
medics say, "Bag him." (Tr. 274, 1632, 1643). Jackson then went
to meet with Romero and other co-racketeers, including Clark and
Smith, where he learned that Clark had shot Bannister in the head
while Bannister was at a PacMan machine in the bar. (Tr. 274-75,
1631-32). Romero and Clark were furious that a confederate, J.R.
Alston, who had been present at the murder scene, had
accidentally dropped his gun. (Tr. 274-76, 1632-33, 1642).
Jackson subsequently learned additional details about the killing
of Norman Bannister in separate conversations with Alston and
with Clark, the latter of whom bragged about his accomplishment.
e. Ash Is Edged Out Of The Enterprise.
In the spring of 1982, when his partner Steven Ash had fallen
behind in his payments to Reiter, for the first time Romero
introduced Jackson to Mark Reiter. (Tr. 312-15, 1899-1900, 1906,
3523-25). After talking with Reiter outside of Jackson's hearing,
Romero told Jackson, "we are going to be all right." (Tr.
313-15). From that time on, Romero continued to have a supply of
pure heroin, and Ash made fewer appearances at the cutting mill.
(Tr. 315). Because Romero now had the "connect," he was
considered to be "in charge" of the enterprise, and over time
Jackson replaced Ash as Romero's partner. (Tr. 315).
Jackson next saw Reiter about six months later, in a meeting
attended by Romero and Billy Battista, whom Jackson and Romero
referred to as Billy "White Hair." (Tr. 316-17). At that meeting
Reiter informed Romero and Jackson that Nicky Barnes was cooperating with the Government
and that therefore Steven Ash and his sister Beverly Ash, or
"Shamecca," had to be killed. (Tr. 316-19; see pp. 16-20
infra). Over the next six months or so, Romero and Clark
committed the murders of Beverly and Steven Ash, as well as of
one of Ash's workers, Barry Wilson, who was tortured and murdered
in an attempt to learn Steven Ash's whereabouts. Jackson's
racketeering enterprise and Reiter's continuing criminal
enterprise had their closest collaboration in accomplishing those
murders. As a result of the murders, Reiter eliminated a threat
to his enterprise, and Romero and Jackson gained a reliable
"connect" that allowed them to exercise unquestioned control over
3. The Murders Of Beverly And Steven Ash And Barry Wilson
In 1980 Leroy "Nicky" Barnes and Herbert Sperling were both
serving life sentences in the federal penitentiary in Marion,
Illinois. (Tr. 1881-82). Sperling told Barnes that he knew a
supplier of heroin named "Mark," whom he described as a white man
somewhat over six feet in height, who was looking for customers.
(Tr. 1887-88, 1893-94). Sperling wanted to know if any of Barnes'
associates would be in a position to purchase his contact's
heroin. (Tr. 1887). Barnes suggested to Sperling that "Mark"
supply Steven Ash with heroin, and with the help of
intermediaries, arranged a meeting between "Mark" and Steven Ash.
(Tr. 1892-95, 1899, 1901-2). Steven Ash was the brother of
Beverly Ash, or "Shamecca," with whom Barnes had been
romantically involved. (Tr. 1888). Barnes hoped that by making
Steven Ash financially independent, Ash's sister Shamecca would
not have to rely on Guy Fisher, with whom Barnes thought she was
having an affair. (Tr. 1888-91, 1908, 1910). By June of 1981, Steven Ash had received at least three
kilogram packages of heroin from "Mark," but Ash was having
difficulty paying "Mark." (Tr. 1899-1900, 1906). Salvatore
Corallo, who assisted Reiter in distributing heroin, saw Reiter
driving Ash's luxury car and was told by Reiter that Ash had
given Reiter the car because Ash was behind in payments. (Tr.
2282-83). Ash also told Elvornia Myles that he was having
financial difficulties (Tr. 3525), and Romero was providing
security for Ash at this time. (Tr. 1909-10). That security was
necessary because, by the end of 1981 and into 1982, financial
disputes between Steven Ash and "Mark" had become more severe,
and "Mark" had threatened to kill Ash if Ash did not pay him
approximately $100,000. (Tr. 311-12, 1914-18, 3523-25). It was
around that time that Nicky Barnes began cooperating with law
enforcement authorities (Tr. 1916, 1918); that Romero first
introduced Jackson to Mark Reiter (Tr. 217, 312-13, 1037-39,
3513-14, 3516); and that Romero began replacing Ash as the person
who brought the pure heroin to the mill to be cut. (Tr. 315).
b. Reiter Orders the Murders of Steven and Beverly Ash.
In approximately October of 1982, when Barnes' cooperation had
become public, Jackson was directed by Romero to attend another
meeting with Reiter. (Tr. 316-17, 1934). At that second meeting,
Reiter told Romero:
I got some bad news for you. Your uncle is
cooperating with the government and with his
cooperation he could hurt a lot of people, including
myself. Not only that, Shamecca knows me and Steven
got drugs from me and they could also hurt me. . . .
You got to get rid of them.
(Tr. 317-18). Romero, who had previously told Jackson that he
would never kill a black man on the order of a white man,* nonetheless agreed to carry out Reiter's orders to
kill his uncle's girlfriend and her brother and explained to
Jackson, "Man, I'm going to do what I have got to do." (Tr.
On December 13, 1982, Beverly Ash was shot to death by a masked
man in a Manhattan bar. (Tr. 91-146). At around that time, Romero
had warned Jackson to stay away from the Monarch Bar because
there was going to be "trouble up there." A few days after that
warning, Clark told Jackson that he was responsible for the
murder. (Tr. 319-21). Clark explained that he had walked with a
hunched back and had worn a white mask so that he would be
mistaken for a white man. (Tr. 321-22). Romero also discussed the
killing of Beverly Ash with Jackson and told Jackson that they
now had "to get Steven [Ash]." (Tr. 322).
c. The Search for Steven Ash and the Killing of Barry Wilson
When Steven Ash did not attend the funeral of his sister, the
enterprise redoubled its efforts to locate him in order to carry
out Reiter's orders. (Tr. 324). Unable to find him, Romero
decided that the organization should contact Barry Wilson, who
was known as "Bones" and who distributed drugs for Ash. (Tr. 324,
3209, 3525-26). Jackson's partner, Steven Cobbs, provided Romero
and Smith with Bones' address. (Tr. 324-25).
Approximately a week later, Romero told Jackson that Bones had
just been killed, and he asked Jackson to drive to a bridge at
Orchard Beach to make sure that the body that had been thrown off
the bridge had gone into the
* Mark Reiter, Billy Battista, Vito Loiacono and Salvatore
Corallo are white. All other known members of Jackson's
racketeering enterprise are black. water and was not visible. (Tr. 325-26, 328). A few days later,
Jackson met with Romero and noticed that Romero's hand was
bandaged. (Tr. 327-28). Romero explained that he and Smith had
handcuffed and tortured Wilson in an attempt to learn Steven
Ash's whereabouts and then, with Smith holding Wilson, Romero had
slit Wilson's throat with a razor but had accidentally cut his
own hand in the process. (Tr. 327). Notwithstanding the torture,
Barry Wilson had revealed nothing about Steven Ash's location.
(Tr. 329). Romero also told Jackson that he and Smith had put
Wilson's body into some plastic garbage bags with barbells, tied
it up with ropes, put it in Smith's car, and dumped it off the
bridge. (Tr. 327-29). A short time later, Smith gave Jackson a
similar account of the killing. (Tr. 329-30). When Jackson
visited Smith's apartment, he noticed red stains on the bathroom
tiles and saw that the shower curtain was missing. (Tr. 331-32).
On April 29, 1983, Barry Wilson's body was recovered from the
Hutchinson River. (Tr. 2193-94; GX 151A-D). The body was wrapped
in plastic bags and a shower curtain and displayed a deep wound
to the neck. (Tr. 2195-96, 6532; GX 151A-D, 181). Eugene Romero
bears a raised scar across the palm of his right hand. (Tr.
6826-30; GX 130, 131).
d. The Murder of Steven Ash
A few months after the murder of Barry Wilson, Steven Ash
contacted James Jackson and told Jackson that he did not know who
had killed his sister and that his "lieutenant," Barry Wilson,
was missing. (Tr. 343-44). Ash gave Jackson his beeper number,
which Jackson passed on to Romero. (Tr. 334-35). A few days
later, Romero contacted Jackson to inform him that Ash was on his
way to an apartment located at 3535 Rochambeau, which the
racketeers had used as a mill and a stash pad. (Tr. 335-36). At that time, the apartment was being occupied
by two women who processed heroin for the enterprise, Adrienne
Holiday and Karen Jenkins, and their daughters. (Tr. 335-36,
1688, 1688-99, 4600-02).
At Romero's direction, Jackson picked up Holiday, Jenkins and
their children and took them to a hotel. (Tr. 335-37, 1704-06,
4602-05). By that time, Romero and his girlfriend, Sharise
Walker, and Raymond Clark had arrived at the apartment. (Tr. 336,
After Jackson had left with Holiday, Jenkins and the children,
Ash was ushered into the bedroom, where Romero was sitting at the
edge of the bed. (Tr. 341). Clark came up behind Ash and shot him
in the head. (Tr. 342). Romero and Clark placed the body into
garbage bags with weights from a gymnastics set they had found in
the apartment, and they placed the body in the trunk of a car.
(Tr. 342-43, 1689, 4601-02). Raymond Clark later bragged to
Jackson that he, and not Romero, had carried the body down to the
car. (Tr. 343). On June 9, 1983, Ash's body, wrapped in blankets
and plastic, was discovered floating near Pier 42 at Norton and
West Streets. (Tr. 4486-90; GX 178A-F). The cause of death was a
bullet wound to the head. (Tr. 6532; GX 180). Raymond Clark
acknowledged in 1987 to Larry Taylor, with whom he had dealt
cocaine, that he had killed Beverly and Steven Ash, although he
said that he had been reluctant to kill Beverly Ash because he
liked her. (Tr. 6087-93, 6097-100).
4. Jackson Runs the Enterprise When Romero Leaves New York.
a. Romero Puts Jackson in Charge.
After the murder of Steven Ash, Romero decided to leave New
York because there were criminal cases pending against him. (Tr. 344).* At that time Romero made Jackson his
partner, sharing profits on an even basis, and instructed him
about how to pick up heroin and make payments to Reiter. (Tr.
344-45). Romero told Reiter that Jackson would now be making
pick-ups of drugs and deliveries of money, and Romero also told
the crew that Jackson was in charge. (Tr. 344-46). Raymond Clark,
Leonard Rollack, and Timothy Smith, among others, were all
present when that announcement was made. (Tr. 346, 410). In
August or September of 1983, Romero accompanied by Raymond Clark,
left New York for Detroit. (Tr. 347).
Jackson stayed in New York with the new responsibility of
meeting with Reiter every week to keep the crew supplied with
heroin. (Tr. 347-48). The arrangement with Reiter was that
Jackson would either pick up heroin or make a payment, but that
he would never do both at the same meeting. (Tr. 348). The
meetings usually took place in the vicinity of 2nd Avenue and the
60's in Manhattan, and Reiter was often accompanied by Billy
"White Hair" Battista. (Tr. 348-49). Reiter freqquently received
payments directly from Jackson, but deliveries of drugs were
always made by Reiter's companion. (Tr. 349). Over the next few
months, Jackson received approximately four kilograms of pure
heroin from Reiter at a cost of $240,000 per kilogram. (Tr. 350).
Reiter supplied Jackson with heroin on a consignment basis, and a
new package of heroin would not be delivered unless the debt for
previously-delivered heroin was no greater than approximately
$50,000. (Tr. 344-45, 350).
During that period, Jackson had numerous meetings with Smith,
to whom he distributed approximately 500
* In November of 1981, Detective Cattrano arrested Romero for
driving a vehicle with an altered "VIN" number and for possession
of narcotics and a gun. (Tr. 5516-17). Romero subsequently jumped
bail on those charges. (Tr. 5518). "quarters" of heroin each week. (Tr. 416). Jackson also had
several meetings with Rollack during which he gave Rollack heroin
or received payment from him. (Tr. 412-13). Ultimately, Rollack
fell into debt and owed Jackson approximately $12,000 for two
ounces of pure heroin that Jackson had given him. (Tr. 411-13).
Jackson also visited an apartment with Rollack that Rollack was
using as a stash pad. (Tr. 413-15). In that apartment, Jackson
observed 10 to 15 "bundles" of heroin, each bundle containing 10
quarters. (Tr. 414). Rollack's sister, Winnie, indicated that she
was responsible for "bagging" the heroin for Rollack. (Tr.
b. The Attempted Homicide of James Pridgen
In 1983 Smith and Jackson saw James Pridgen in the Players Club
in Manhattan, and Smith, who still believed that Pridgen had
earlier ordered Bailey to kill him, see pp. 11-12 supra,
decided to "move on" Pridgen. (Tr. 251-53). Jackson supplied
Smith with a gun and instructed Adrienne Holiday, the woman who
packaged heroin for the enterprise and who was present at the
social club that night, to retrieve the gun after Smith had used
it. (Tr. 253-54, 4606-08). A short time later, Smith fired
several shots at Pridgen, who was hit and fell across the table
where he had been sitting. (Tr. 254, 4608-10). The racketeers
later learned that Pridgen had been paralyzed but not killed.
(Tr. 255-56, 1798, 4613).
After the shooting, Holiday dropped the gun Smith had thrown
towards her, and she left the club with Jackson and Smith, who
used separate cars. (Tr. 254-55, 4610-11). Smith was angry at
Holiday for having dropped the gun, and he feared that the gun
might have his fingerprints on it. (Tr. 255, 4611-12). Holiday
accompanied Jackson and Smith to another discotheque and, still
upset, visited her friend Karen Jenkins, to whom she described the shooting she had just seen. (Tr. 255, 1797-1800,
5. Jackson Becomes The Sole Leader of the Enterprise.
a. Jackson and Romero Dissolve Their Partnership.
On one occasion, Romero sent his girlfriend Sharise Walker to
New York to meet with Jackson. (Tr. 418). That week, Jackson,
following Romero's directions, gave Walker the approximately
$200,000 that was to be paid to Reiter and also provided her with
a quarter of a kilogram of pure heroin. (Tr. 418-20). The
following week, Sharise Walker visited Jackson again and for a
second time took possession of the week's cash proceeds. (Tr.
In October of 1983, following Sharise Walker's second receipt
of cash from Jackson, Romero came to New York and met with
Jackson. (Tr. 420-21). Romero criticized Jackson for being behind
in payments but refused to listen to Jackson's explanation. (Tr.
421). At a meeting of the crew at which Raymond Clark, Leonard
Rollack and Timothy Smith, among others, were present, Romero
announced that he and Jackson were no longer partners and that he
would resume the direction of the enterprise. (Tr. 421-22). For
about a month thereafter, until Romero again left New York for
Detroit, Romero supplied the crew with heroin. (Tr. 422).
Meanwhile, Jackson became partners again with Steven Cobbs and,
after initially receiving heroin from Romero, found a new source
of supply named "Omar." (Tr. 422-23). During that time, Mark
Reiter had a "dry" period and could no longer supply heroin for
Romero to distribute to his workers. (Tr. 422-23). Jackson thus supplied Romero's "crew" and, when Romero later returned again
from Detroit, he became Jackson's "lieutenant." (Tr. 423-24). In
addition to "Omar," Jackson also received heroin on occasion from
William Underwood and Ronald Basket. (Tr. 425-27).
In the spring of 1984, Reiter contacted Jackson and arranged a
meeting, at which Billy "White Hair" Battista was also present.
Reiter announced that he was willing and able to supply heroin to
both Jackson and Romero, each of whom, by that time, had his own
crew. (Tr. 430-31). Jackson's crew, which included Smith, Dicks
and Joseph Bethea, among others, was distributing substantial
quantities of heroin on 117th Street in Manhattan, in Father
Panik and P.T. Barnum Projects in Bridgeport, Connecticut, and at
other locations in New York and in Virginia. (Tr. 430-33,
1425-38). During the summer of 1984, on one occasion Jackson
distributed 500 quarters of heroin to Smith, 250 quarters to
Robert "J.R." Thompson, 500 quarters to Dicks, and various other
amounts of heroin to other crew members. (Tr. 436-39).
Later in 1984, after one of Jackson's suppliers was arrested,
Jackson went to a boutique called Gianpietro's near Mark Reiter's
apartment and told its owner, Mike Levy, that he needed to
contact Reiter. (Tr. 445, 482, 4039-40). Levy left the boutique
and returned, saying that Reiter would arrive shortly. (Tr. 446).
Sometime later, Reiter arrived, and Jackson told him that he did
not "want to be involved with Romero" and that he wanted his "own
work." (Tr. 446). The next day, Reiter, accompanied by Battista,
agreed to give Jackson half a kilogram of heroin on consignment
for $120,000, and Battista handed Jackson the package. (Tr.
446-47). Thereafter, until about May of 1985, Jackson received
approximately half a kilogram to a full kilogram of heroin per
month from Reiter, with the meetings occurring in Manhattan in
the east 50's or 60's. (Tr. 447-48). At around that time, Jackson, who had previously arranged for the
"cutting" and packaging of the heroin into quarters, started
distributing pure heroin to his crew members, including Smith
(Tr. 452, 1673-82, 1712, 4584-95),* and Rollack, who was the
first recipient of "pure" from Jackson. (Tr. 620).
In November of 1984, Jackson held a large birthday party in the
Bronx at the Stardust Ballroom, a nightclub and catering
establishment run by Edward Jackson (who is not related to James
Jackson). (Tr. 448-50, 1437-38, 3234, 3268-69; GX 86, 328). Among
the people who attended were Smith and Dicks. (Tr. 449). At
around the time of that party, Jackson met with Dicks, who
informed Jackson about trouble he was having with competing drug
dealers in Bridgeport, and Jackson provided Dicks with an eighth
of a kilogram of pure heroin on a consignment basis. (Tr.
Early in 1985, Jackson was the target of an unsuccessful
shooting in the vicinity of Arthur's Roundtable, a bar in the
Bronx. (Tr. 454-55, 3245-46). Jackson contacted a co-racketeer,
Gregory Berry, and asked him to find out who was responsible for
the shooting. (Tr. 455-56). Berry subsequently told Jackson that
Frank Nitty was responsible, and Jackson paid Berry $5,000 to
have Nitty killed. That murder was accomplished by one of Berry's
confederates, Sam Cooper. (Tr. 456-57). At around the same time,
Jackson ordered the murder of James "Boo" Simmons, who had
transported heroin to Bridgeport, Connecticut. (Tr. 459-61).
Simmons was killed by Ted Key and "Buzz" at Jackson's direction
because Jackson believed that Simmons was a heroin user
* Karen Jenkins and Adrienne Holiday, who had previously
processed heroin for Jackson and Stephen Cobbs from 1980 through
1984, began working for Smith in late 1984. (Tr. 1673-82,
1708-15, 4584-95, 4625). and had stolen an eighth of a kilogram of heroin from Jackson's
stash pad. (Tr. 459-61).
b. The Shootout in Bridgeport, Connecticut
During 1985 Jackson was meeting with Dicks on a weekly basis,
either to supply Dicks with heroin or to receive money from him.
(Tr. 463-64, 3691-92). Many of those meetings occurred at the
Afro-American Bar, and one of them was witnessed by Robert
Thompson. (Tr. 464, 3246-50). In February of 1985, Jackson and
Berry travelled to Bridgeport to supervise the enterprise's
operations after learning from Jerry Davis, a worker there, that
rival drug dealers were trying to expel Jackson's workers from
the Father Panik Projects. (Tr. 464-69, 3689). Dicks obtained and
furnished a condominium for Jackson and Berry in exchange for
Jackson's reducing Dicks' debt to him. (Tr. 465-68). Jackson and
Berry visited the Father Panik Projects and were surrounded and
threatened by a rival crew. (Tr. 468-69).
In response to the threat in Bridgeport, Jackson and Berry
organized a crew meeting in the Bronx at the Stardust Ballroom.
(Tr. 469-70, 3253-55, 6285, 6291). Jackson ordered his crew
members to bring weapons, and they assembled a sawed-off shotgun,
a Thompson machine gun, two Uzis and four or five pistols. (Tr.
469-70, 3252-53, 6315-16). Among the crew members present, in
addition to Jackson and Berry, were Jerry Davis, Robert Thompson
and Joseph Sherman. (Tr. 470, 3252, 6316). Joseph Sherman, who
distributed cocaine for Berry, told Robert Thompson that "[w]e
got a little static up there [in Connecticut]" and then
criticized Thompson for refusing to accompany the others. (Tr.
After the organizational meeting at the Stardust Ballroom,
Jackson, Berry and other crew members drove up to Bridgeport, where they assembled and met Dicks at Mr. D's, a
bar run by the Dicks family and located near the Father Panik
Projects. (Tr. 432-33, 470-71, 2818-19). When Jackson and Berry
were unsuccessful in locating the people who had confronted them,
they told the crew to reassemble the next morning. (Tr. 470-71).
At that time, Dicks volunteered to participate, but Jackson
refused his offer. (Tr. 471). The crew then entered the Father
Panik Projects, positioned itself at various locations, and
opened fire on the rival crew. (Tr. 471-72). Jackson saw one man
fall. (Tr. 472). Jackson's crew then went back to Dicks' bar,
where the men left their arsenal of weapons for about a week.
(Tr. 472-73). Dicks told Jackson a few days later that one of
Jackson's workers in Bridgeport had been killed in retaliation by
the rival group. (Tr. 474).
At around the time of that Bridgeport shootout, Gregory Berry
decided to start selling cocaine exclusively and ceased
purchasing heroin from Jackson. (Tr. 476). Jackson gave Berry
permission to distribute cocaine to his crew so long as it did
not affect heroin sales, and Jackson saw Berry delivering cocaine
to Dicks and Joseph Sherman, among others.* (Tr. 476-78). Jackson
also told Bethea that quantities of cocaine were available from
"his man Berry" and mentioned to Karen Jenkins that Berry was his
source for cocaine. (Tr. 1489, 1722-24). About a month after the
Bridgeport shootout, Berry once again enlisted Sam Cooper to
execute a murder for Jackson. (Tr. 496). The victim was Marion
"Baby" Robinson, whom Jackson suspected of being an informant and
whom Cooper shot outside the Oasis Bar. (Tr. 495-97, 3529-35).
Jackson gave Berry $5,000 to pay to Cooper for this murder, but
Berry, who used an intermediary,
* Dicks subsequently approached Jackson to enlist his aid in
getting Berry to reduce the price he was charging for cocaine,
but Jackson refused to get involved. (Tr. 479). Elvornia Myles, to deliver the payment, apparently only paid
Cooper $1,000. (Tr. 497, 3535-37).
6. Narcotics Activities of Jackson's Enterprise in 1985 and
In early 1985 Jackson regularly obtained his heroin from Mark
Reiter, although he also knew some "African" suppliers from whom
he obtained approximately 2½ kilograms of poor quality heroin.
(Tr. 480-81, 486-87). In around April of 1985, Reiter introduced
Jackson to Vito Loiacono, who Reiter said would replace Battista.
(Tr. 486-88; GX 70). Among Jackson's distributors at that time
were Robert Thompson, Cherie Sloan and Anthony Osborne. (Tr.
3681-82). Jackson also sold heroin to Ronald Maxwell, a/k/a
"Ronald Conquest," whom Jackson had met at Gianpietro's. (Tr.
481-86; GX 72). Maxwell later complained to Jackson that Reiter
had refused to refund $30,000 that Maxwell had paid to Reiter for
heroin that was too low in quality to sell. (Tr. 514-15).
After about May of 1985, Reiter was no longer able to supply
Jackson with heroin, but, in a conversation at a restaurant in
September or October of 1985, Reiter reassured Jackson that he
would soon have "more than enough drugs." (Tr. 491-92). In late
1985 Jackson contacted Reiter after learning of the murder of
Paul Castellano,* and Reiter told Jackson that "[e]verything is
going to be all right. You'll be hearing from me soon." (Tr.
498). A few weeks later, Jackson met with Reiter and Loiacono and
received half a kilogram of heroin. (Tr. 501-03). Reiter also
agreed to reduce Jackson's price from $240,000 to $200,000 per
kilogram. (Tr. 503, 506).
* An objection to references to Castellano was sustained by
Judge Owen, and the murder was subsequently referred to as "a
news event." (Tr. 498-501). In 1986 Jackson met with Reiter and/or Loiacono on a weekly
basis, either to pick up heroin or to pay for it. (Tr. 506-07).
Jackson then distributed that heroin to members of his
enterprise, including Dicks, Bethea, and Thompson, for
redistribution in New York, Connecticut, Virginia, and Boston.
(Tr. 508-09, 1433-34, 1491-94, 3691-94, 3700-02).
In the summer of 1986, Jackson promoted his nephew Russell
Fleming to be "lieutenant" in the organization. (Tr. 511, 3697,
3704-05). Fleming had previously assisted Jackson during
vacations from college in delivering heroin and picking up
payments. (Tr. 510, 3680-97). Perceiving that law enforcement
efforts against him were increasing, Jackson decided to go to
Virginia to "cool off," and before doing so, he introduced
Fleming to Reiter and Loiacono. (Tr. 511-12, 3705-10, 4099-101).
Although Jackson came back to New York occasionally, he spent
most of his time between the summer of 1986 and the end of the
year in Virginia, where he sold heroin with Bethea; and, during
his absence, he consulted with Fleming on a daily basis while
Fleming ran Jackson's narcotics enterprise. (Tr. 530-31, 1491-92,
3719-20). Fleming had approximately half a dozen meetings with
Loiacono to pick up heroin or make payments for it. (Tr. 3712).
Fleming also met once alone with Reiter to tell him that Jackson
was out of town and had to postpone paying Reiter. (Tr. 3714-16).
7. The Demise of Jackson's Enterprise
In February of 1987, Jackson was arrested on this case and
incarcerated at the Metropolitan Correctional Center ("MCC").
(Tr. 533). At the time of his arrest, he owed Mark Reiter
approximately $140,000. (Tr. 533). In the MCC Jackson was
approached by Angelo Ruggiero, who was also an inmate and who
told him that they had a mutual friend Mark Reiter. (Tr.
533-34). Needing to raise money to pay his retained lawyer, Robert Simels, Jackson
instructed Fleming to contact Reiter to obtain additional heroin.
(Tr. 536-38). When Fleming reported that Reiter had refused to
help, Jackson sought assistance from Ruggiero, who later told
Jackson that he had contacted Reiter about the matter. (Tr.
538-39). On a subsequent visit, Fleming told Jackson that Reiter
had now agreed to provide more "work." (Tr. 539-40). Fleming
subsequently obtained an eighth of a kilogram of heroin from
Reiter, which Fleming split into three packages. (Tr. 540-41,
3738-39, 3743-45). A short time later, Fleming too was arrested.
(Tr. 542, 3738).
In around May or June of 1987, Ruggiero introduced Jackson to a
private investigator named William Sewell. (Tr. 586). Sewell was
hired by Jackson, Dicks and Anthony Mackenzie in an attempt to
obtain information about Berry, whom they suspected of being a
prosecution witness. (Tr. 602-05). In September of 1987, when
Jackson had decided to cooperate with the Government, but before
his cooperation had become public, Rollack told Jackson during a
visit, in words that later proved true, that he (Rollack) would
jump bail and not be present at trial. (Tr. 605-07). After
Rollack did in fact flee, it was not until mid-trial that he was
again arrested. (Tr. 6013-14).
8. The Origins of Reiter's Continuing Criminal Enterprise
a. Reiter Enters the Heroin Business.
Just as Jackson was cementing his power and profits as the
eventual head of his heroin distribution organization from 1980
through 1987, so too was Jackson's supplier Reiter building his
own enterprise during roughly the same time period. Reiter was
introduced to the heroin business in around 1980 by Herbert
Sperling, who, through Nicky Barnes, facilitated the introduction of Steven Ash to
Reiter. (Tr. 4201). Prior to that time, Reiter had been involved
in "chopping," (i.e., dismantling) cars and in relatively
small-scale cocaine sales. (Tr. 4021-24). In 1978 Reiter employed
Vito Loiacono to store cocaine and to find customers willing to
buy cocaine in quantities from an eighth to a quarter of a
kilogram. (Tr. 4022-25). Reiter also purchased small amounts of
cocaine from Salvatore Corallo, who was himself a small-scale
cocaine dealer (Tr. 2210-13, 2215-16, 2458, 2466-67), and once
helped finance Corallo's purchase of $8,000 dollars' worth of
cocaine. (Tr. 2218-20). In 1980 Corallo learned that Reiter was
in the heroin business when Reiter urged him to accompany a
shipment of heroin from Italy to New York. (Tr. 2222-23). After
discussing the offer with his wife, Corallo decided not to accept
it. (Tr. 2223).
As Corallo fell into debt to Reiter in the fall of 1981, Reiter
used Corallo to store heroin, which Corallo initially hid in his
mother's apartment. (Tr. 2225-29). Reiter also introduced Corallo
to Battista, who delivered to Corallo the first package of heroin
that Corallo stored and who later retrieved that package. (Tr.
2225-27). At around that time, Reiter also taught Corallo how to
cut, package, and test heroin and how to count large amounts of
money quickly. (Tr. 2226-27, 2230-32, 2281). In January of 1982,
Reiter had Corallo store two kilograms of heroin in Reiter's
house in Brooklyn and told Corallo that he would pay off
Corallo's "shylock" debts and compensate Corallo $500 dollars for
each kilogram of heroin delivered to a white customer and $2,500
dollars for each kilogram delivered to a black customer. (Tr.
Corallo worked for Reiter in the heroin business until June of
1982, when Reiter directed him to "lay low" because "[t]hings are
getting hot." (Tr. 2296-97). Corallo's responsibilities were "to
test, package heroin, weigh heroin, deliver heroin and collect
cash from the sales of those heroin deals." (Tr. 2235-36). In October of 1982, Corallo
was arrested on federal charges of conspiring to distribute
heroin in a case that also named Mark Reiter as a defendant. (Tr.
2298-99). During the period prior to his arrest, Corallo had
delivered a quarter of a kilogram of heroin to Albert La Rocca, a
full kilogram to John Perrone, and a total of five kilograms to
Eugene "Mike" Romero, who had introduced Corallo to James
Jackson. (Tr. 2238-47, 2250, 2255, 2285-86; GX 76, 87). Reiter
also introduced Corallo to Steven Ash and, at Reiter's direction,
Corallo gave Ash some cocaine. (Tr. 2282-83). On three occasions,
Corallo delivered heroin to Thelma Grant, who was Nicky Barnes'
common law wife and who was named as a defendant in the case
against Corallo. (Tr. 1851, 2693, 2724, 2754). In addition to
distributing heroin for Reiter, Corallo accompanied Battista when
Reiter ordered Battista to pick up heroin from Salvatore Greco
(Tr. 2284-85, 2290, 2292), and accompanied Reiter when Reiter
delivered half a million dollars in cash proceeds of heroin sales
to John Carneglia. (Tr. 2293-95, 2731-32).
b. Reiter's 1983 Arrest and Acquittal
In April of 1983, Reiter was arrested and charged with
participating in the heroin conspiracy with which Corallo had
previously been charged. (Tr. 2708-09). Reiter, who had
previously given Corallo money to help defray his legal expenses,
now attended joint defense meetings with Corallo and his lawyer,
Al Christenson. (Tr. 2299-2300, 2710, 2744-45). At around that
time, Corallo was secretly recording telephone conversations on
his home answering machine, and in 1987 Corallo turned those
tapes over to law enforcement authorities. (Tr. 2400-29, 2747-51;
GX 604, 605, 606, 615). One of those tapes included a
conversation with Reiter in which Reiter offered Corallo $30,000
to plead guilty in the case. (Tr. 2414-22, 2713-15; GX 606).
Corallo subsequently did plead guilty before the Honorable Mary Johnson Lowe to conspiring
to distribute heroin and allocuted to the offense in a manner
that avoided disclosing Reiter's role in Corallo's heroin
distribution to Thelma Grant. (Tr. 2443-51, 2767-68). It was also
around that time that Reiter mentioned to James Jackson that he
was "on the lam." (Tr. 351). Mark Reiter eventually stood trial
but was acquitted by Judge Lowe pursuant to Fed.R.Crim.P. 29.
(Tr. 2251, 2568-69, 2725). Corallo was sentenced to imprisonment
for a term of three years and was released from jail on October
9, 1985. (Tr. 2301).
It was during the period from 1982 through 1983, when Corallo
was in frequent contact with Reiter, that Reiter ordered Romero
and Jackson to murder Beverly and Steven Ash. See pp. 17-18
supra. Present at that meeting with Jackson and Romero was
Battista, who had begun working for Reiter in April of 1982. (Tr.
2255-58, 316-19, 343, 348-49). Battista was present with Reiter
on approximately ten occasions when Jackson picked up heroin or
delivered money. (Tr. 349-50). Battista also worked with Corallo
in performing tasks for Reiter, including storing and making
deliveries of heroin and transferring cash payments. (Tr. 2225,
2227-30, 2255-60, 2281-87, 2289-90, 2295, 2709-10, 2713). One of
the telephone conversations that Corallo recorded was a
discussion between Corallo and Battista about the difficulties in
working for Reiter. (Tr. 2399-2411; GX 615).
c. Reiter Recruits Vito Loiacono.
In late 1983, Vito Loiacono, who had just been released from
prison and who had known Reiter since 1975, approached Reiter and
asked to work for him. (Tr. 4021-22, 4025-27). Reiter agreed to
have Loiacono work with Battista, who was already "distributing
the heroin for Mark, pick[ing] up money, set[ting] up
appointments, pick[ing] up the drugs and stor[ing] it." (Tr.
4028). Shortly thereafter, Loiacono accompanied Battista in making a
heroin delivery to Jackson. (Tr. 4030-31, 4034). In subsequent
months, Loiacono also made deliveries to Warren Tyson, a/k/a
"Otis," and to Peter Monsanto. (Tr. 4035-39, 4071-72; GX 82). The
meeting with Monsanto took place at Gianpietro's boutique; and
Reiter explained that Mike Levy, the owner of Gianpietro's, had
introduced Reiter to Monsanto. (Tr. 4039-40). Loiacono ceased
working for Reiter for a period of time in 1984 after Battista
complained that "there was no sense in both [workers] getting
arrested for the same thing, when God forbid only one could go."
In 1985 Reiter separately informed both Jackson and Loiacono
that Battista was no longer working for him, and he explained to
Loiacono that Battista was an informant. (Tr. 487, 4044).
Loiacono immediately resumed working for Reiter, storing,
processing and delivering heroin and collecting payments. (Tr.
9. Narcotics Activities of Reiter's Enterprise from 1985
through Early 1987
Between 1985 and 1987, Loiacono distributed heroin on a regular
basis to various of Reiter's customers. Those customers included
a black male whom Loiacono knew as "Willie" and who received an
eighth of a kilogram of pure heroin. (Tr. 4049-50). Peter
Monsanto was also a customer and he received an eighth of a
kilogram on approximately five occasions, twice at Gianpietro's.
(Tr. 489-91, 4052-55). Another customer, Eric Von Zipp, was
recruited for Reiter by Jackson and was given an eighth of a
kilogram by Loiacono. (Tr. 528-30, 4051-52, 4089; GX 116).
Jackson was subsequently enlisted by Reiter to help collect
overdue payments from Von Zipp; and, to accommodate Reiter,
Jackson once drove Von Zipp to a meeting with Reiter. (Tr.
526-30). Loiacono also made deliveries to Mitchell Jackson, a/k/a
"Red Jack," who Reiter said had been recommended by Jackson. (Tr. 4078-82; GX
65). Jackson had in fact been asked by Reiter whether "Red Jack"
was a "mover," but Jackson had asked Reiter not to serve as his
supplier. (Tr. 492-95). Reiter ignored Jackson's request, and
Loiacono ultimately supplied "Red Jack" with 12 to 18 deliveries
of pure heroin in quantities ranging from a quarter of a kilogram
to a full kilogram per delivery. (Tr. 4081-83). After the first
delivery, "Red Jack" received Reiter's heroin on a consignment
basis and periodically made cash payments to Reiter ranging from
$80,000 to $150,000. (Tr. 4081-84).
Another major customer of Reiter's whom Loiacono supplied at
Reiter's direction was Ronald Conquest (Ronald Maxwell), known to
Loiacono as "Ronny." (Tr. 4072-75; GX 880E). Loiacono made
approximately eight or nine deliveries to Conquest, frequently at
Gianpietro's, of an eighth of a kilogram of heroin each time.
(Tr. 4073-75). Those deliveries were interrupted for a month when
Reiter learned that Conquest had a second source of supply and
were ultimately terminated when Conquest was arrested in 1987.
Warren, Tyson, a/k/a "Otis," to whom Loiacono had first
delivered heroin in 1983, received on a consignment basis in the
period from the summer of 1985 to October 1987, approximately a
dozen packages of heroin ranging in quantity from an eighth to a
quarter or half of a kilogram. (Tr. 4035-39, 4071, 4085-89).
Reiter told Loiacono that he had obtained "Otis" as a customer
through the efforts of Jackson's partner, "Mikey" [i.e., Eugene
Romero]. (Tr. 4086-87). Reiter also noted that "Mikey" had been
one of his best customers and directed Loiacono to tell "Otis" to
get "Mikey" a lawyer when "Mikey" was later arrested. (Tr.
Of course, Loiacono also participated at Reiter's direction in
the delivery of vast quantities of heroin on a consignment basis to Jackson, including packages weighing up to
an entire kilogram. (Tr. 501-19, 616-17, 4093-99). Loiacono also
made several deliveries of heroin to Jackson's nephew Fleming and
received cash payments from Fleming during the period when
Fleming was managing Jackson's organization. (Tr. 3707, 3709-12,
10. Corallo Rejoins Reiter's Enterprise.
Salvatore Corallo was released from prison on October 9, 1985,
and resumed his small-scale cocaine dealings. (Tr. 2301,
2303-04). For about a year and a half, Corallo and Reiter had
only sporadic contact, largely involving purchases by Reiter of
small amounts of cocaine from Corallo. (Tr. 2304-08). In January
of 1987, Corallo purchased an ounce of heroin from Reiter, which
Corallo intended to redistribute to a contact he had made in
jail. (Tr. 2308-09). After Loiacono had delivered the ounce of
heroin to Corallo, Reiter called Corallo and asked to visit
Corallo in Corallo's apartment. (Tr. 2310). Reiter, accompanied
by Loiacono, brought with him two samples of heroin, on which he
asked Corallo to perform an "acid test" and a "melting point
test." (Tr. 2310-12, 4141-44). For a period of three or four
months thereafter, Reiter continued to employ Corallo to test his
heroin. (Tr. 2312-13).
By the summer of 1987, Reiter started using Corallo more
extensively in his heroin business, arranging for Corallo to
store four kilograms of heroin at his residence and asking
Corallo to pick up heroin in Newburgh, New York. (Tr. 2313-16,
4159-60). Reiter also enlisted Corallo to deal with a troublesome
heroin customer named "Ricky," who was refusing to buy from
Reiter because of an earlier dispute. (Tr. 2320-21, 4116-17).
Reiter, who could not use Loiacono as his courier because "Ricky"
knew that Loiacono worked for Reiter, instructed Corallo to meet Reiter and a woman named Cathy Burke at a specified
restaurant. From there Burke would accompany Corallo to meet
"Ricky." (Tr. 2321, 4116-17). At the restaurant, after Reiter had
instructed Burke about how she was to introduce Corallo to
"Ricky," Burke led Corallo to a nearby street corner, where she
made the introduction. (Tr. 2323-25). Following Reiter's
directions, Corallo offered to sell "Ricky" half a kilogram of
heroin on a cash basis for $95,000 or a full kilogram on a
consignment basis for $210,000. (Tr. 2324). The next day, "Ricky"
purchased half a kilogram from Corallo, and a few days later, he
purchased an additional half a kilogram. (Tr. 2324-27). Corallo
stored the $190,000 in cash proceeds from the sale at his
residence until, at Reiter's direction, he turned over the cash
to Loiacono. (Tr. 2326-27, 2332-34). Loiacono, who first met
"Ricky" at Cathy Burke's house, had previously distributed half a
kilogram of heroin to "Ricky" and had collected a cash payment of
$50,000, which he had taken to Reiter's apartment. (Tr. 4114-17).
Corallo made a number of telephone calls to Reiter about his
dealings with "Ricky," whom he referred to as "Cherry Lime
Ricky." (Tr. 2328). A few months later, "Ricky" contacted Corallo
to purchase additional heroin, but Corallo refused because he
could not contact Reiter to get approval for the transaction.
(Tr. 2329). In a recorded telephone conversation between Loiacono
and Reiter on August 1, 1987, Loiacono relayed a message from
Corallo to the effect that Reiter had "missed out on a `Cherry
Lime Ricky.'" (GX 918A).
During that same period of time, Reiter had obtained a new
customer known as "Jazz" or "Shorty" Hayden. (Tr. 4109, 4114; GX
64). Hayden made purchases of heroin on three occasions totalling
half a kilogram, with the final two purchases made on a
consignment basis. (Tr. 4112-14). The purchases ceased when
Hayden was arrested. (Tr. 4113-14). An additional customer, Alan Morris, who was known as "Whirl" or "World," received on two
occasions a total of a kilogram and a half of heroin from
Loiacono. (Tr. 2341-43, 4122-29). Loiacono also delivered an
eighth of a kilogram of heroin to Jackie Monsanto, who was the
wife of Peter Monsanto. (Tr. 4117-21).
11. The Demise of Reiter's Enterprise
In February of 1987, Loiacono learned from Reiter that Jackson
had been arrested. (Tr. 4103). Prior to Jackson's decision to
cooperate in this case, through the intervention of fellow MCC
inmate Angelo Ruggiero, Reiter had agreed to help Jackson raise
his attorneys' fees by supplying Fleming with an eighth of a
kilogram of heroin. See pp. 29-30 supra. However, on
September 2, 1987, immediately after Jackson had been transferred
out of the MCC, realizing that Jackson had begun to cooperate,
Ruggiero telephoned Reiter collect from the MCC. Ruggiero told
Reiter to "[g]et a lawyer . . . `[c]ause the guy left the
building, today. . . . They know the whole story." (GX 966).
Shortly thereafter, Reiter, who was being surveilled, met with
Loiacono and Cathy Burke in the vicinity of Reiter's apartment
near 59th Street and Second Avenue in Manhattan and told Loiacono
that Jackson had become an informant. (Tr. 4160-62). Reiter
directed Loiacono to warn "Otis" and "Red Jack" that Jackson "had
turned." (Tr. 4162). Reiter also accompanied Loiacono to the
meeting with "Otis," which occurred that same evening in the
vicinity of 79th Street between First and York Avenues. (Tr.
Over the Labor Day weekend that followed Ruggiero's telephone
call, Reiter also arranged to meet his customer Alan Morris,
a/k/a "Whirl" or "World." (Tr. 4165-66). Surveillance agents
monitored various meetings at two different hotels attended at one time or another by Reiter, Cathy
Burke, Alan Morris, and two associates of Morris. (Tr. 4838-50,
5363-73, 5696-5700, 5999-6003, 6560-65). Those agents also
overheard references to a price of $700,000 or $790,000 and to
the deal being delayed. (Tr. 6001-02, 7995-8002). Reiter told
Loiacono that "he felt there were agents all around" and that "he
was taking off, he couldn't afford to get indicted because of
Jackson and he was going to leave." (Tr. 4166, 4165).
A few days later, Reiter, who was in Florida, had a telephone
conversation with Loiacono in which he directed Loiacono to
obtain false identification documents and to make travel
arrangements so that Reiter's son, Greg, could come to Florida.
(Tr. 4167-69). Loiacono picked up the false identification
documents from Cathy Burke's house, and, after he had done so, he
delivered them to Greg Reiter. (Tr. 4168-69, 4171-72). During
that meeting with Reiter's son, Loiacono confronted him with the
fact that he had not fully cleaned out his father's apartment, as
instructed. Loiacono had earlier gone to the apartment, also with
instructions to clean it out, and had found certain papers and a
gun still there. (Tr. 4171). Greg Reiter had also been instructed
by his father to contact Corallo and convey the message that
Corallo was to "[g]ive Vito anything he wants" and to ask for the
number of a public telephone where Reiter could contact Corallo.
(Tr. 2335-36). Corallo, who was still storing heroin for Reiter,
gave one package to Loiacono in September and another in October.
(Tr. 2340-45). The October package contained half a kilogram of
heroin, which Loiacono delivered to one of Morris's or "World's"
confederates in Detroit. (Tr. 2343-45, 4176-77). Loiacono
received $20,000 from "World's Man" in Detroit, which Loiacono
immediately delivered to Reiter, who was then in Los Angeles.
During the period after Reiter fled from New York, Reiter
learned that Fleming had been arrested and was also cooperating with the Government. (Tr. 4172). Reiter
instructed Loiacono to contact "Otis," whose wife's mother knew
Fleming's mother, and to tell "Otis" to kill Fleming. (Tr. 4172).
Loiacono conveyed that message to "Otis," who agreed to tell
Loiacono if he ever learned of Fleming's whereabouts, but he
insisted that Loiacono commit the murder. (Tr. 4173-74). Reiter
also approved the delivery to "Otis" on consignment of a quarter
of a kilogram of heroin, which Loiacono picked up from Corallo
and delivered to "Otis." (Tr. 4174-75). "Otis" ultimately
reported to Loiacono that Fleming and his family had moved and
could not be found, and Loiacono so informed Reiter when they met
later in California. (Tr. 3852, 3962-64, 4173-74, 4178). Reiter
was eventually arrested in California on November 18, 1987. (Tr.
12. Reiter's Accumulation and Concealment of Wealth
During the seven years or so of his operation, Reiter charged
his black customers approximately $240,000 per kilogram of heroin
and his white customers approximately $19,000 per kilogram of
heroin. The Jackson organization alone purchased approximately 45
kilograms of heroin from Reiter (Tr. 616), and in addition,
Reiter sold more than a dozen kilograms to "Red Jack" and several
other large customers. (Tr. 4081-84, 4086-90). Given those
enormous revenues, not suprisingly, Reiter accumulated tremendous
personal wealth, and also not surprisingly, he went to great
lengths to conceal his assets.
Reiter last filed a tax return in 1981, which stated that his
adjusted gross income was $13,250 and his taxable income was
$9,250. (Tr. 4912-13, 4928). Neither a tax return nor a request
for an extension was filed by or on behalf of Reiter for the 1982
tax year. (Tr. 4915). For the tax years 1983 through 1986,
requests for extensions were filed, accompanied by estimated tax
payments of $7,000 for 1984, $9,000 for 1985, and $4,000 for 1986. (Tr.
4915-27). In 1984 a penalty of $500 was assessed on Reiter for
filing a frivolous return. No tax returns at all are on file for
Reiter's wife Dolores. (Tr. 4908, 4929).
Records of the Social Security Administration indicate that
Reiter was employed by Accessories Specialties, Inc., in Yonkers,
New York, from 1976 through 1983. (Tr. 2395, 4958-59). There was,
however, no personnel file for Reiter at Accessories Specialties,
Inc., nor was Reiter known to Robert Griffin, the company's
national sales coordinator during the relevant years. (Tr.
5085-88). According to the records of the Social Security.
Administration, Reiter's total gross wages for the fourteen-year
period from 1973 through 1986 amounted to just under $107,000.
Notwithstanding those IRS and Social Security Administration
records showing small earnings through the year 1986, Reiter
maintained a lavish personal life-style. From at least around
1982 until 1987, Reiter lived in an apartment at 300 East 59th
Street in Manhattan, which originally had been designed for
Calvin Klein. (Tr. 2392, 4235). The apartment had three rooms,
wood paneling and mirrors, and a bedroom with a glass-enclosed
Jacuzzi. (Tr. 2392, 4235-36). The payments from 1983 through
1986, some of which Reiter had made in cash (Tr. 4236, 5619),
amounted to approximately $58,000. (Tr. 5614). That apartment,
however, was listed in the records of the real estate management
firm as being occupied by one Peter King. (Tr. 5614). In one
intercepted telephone conversation in which Reiter reported
service difficulties to the telephone company, Reiter gave his
name as "King." (GX 933).
Reiter's family also had a residence at 3206 Hewlett Avenue,
Merrick, New York. (Tr. 2391). That residence, however, had mortgage and insurance documents recorded in the
name of one Vincent Balzano. (Tr. 5538-49). Balzano never resided
in the house, nor did he make any mortgage or insurance payments
on it. (Tr. 5554-56, 5559-60). The homeowner's insurance policy
on the house was arranged and paid for by Dolores Reiter but was
in the name of Vincent Balzano, who was listed as an
owner-occupant. (Tr. 5566, 5568-69). Dolores Reiter told the
insurance broker that Balzano, who did not in fact even know Mark
or Dolores Reiter, lived in the house with her. (Tr. 5568-69,
Also during that period, Reiter drove a variety of expensive
cars, including a four-door black Lincoln, a Cadillac, a 1982
Eldorado, and a black Mercedes two-door convertible SL. (Tr.
2392-93, 4237-38). Reiter told Loiacono that he had paid $50,000
for one car, using a leasing company so that if "anything ever
happened, they couldn't take the car." (Tr. 4237-38). In addition
to those belongings, Reiter owned two boats, one a 26-foot boat
called "the Magnum," and the other an approximately 40-foot white
"Fountain" cigarette boat (Tr. 2393-94, 4241-44). The larger boat
was a customized model purchased from Reginald Fountain for
approximately $132,000. (Tr. 5150). Payments for the boat were
also made in cash, with Loiacono flying down to North Carolina to
make one payment of approximately $70,000 in cash. (Tr. 4241-42).
The cigarette boat was first registered in the name of one Lee
Bandrowicz, who had helped arrange the purchase and had initially
accepted delivery of the vessel. (Tr. 5094-99, 5107, 5149).
Bandrowicz did not want the boat registered in his name, and the
registration was thus changed to reflect William Kooiman,
Reiter's half brother, as the owner. (Tr. 5108, 5112, 5159-61).
Bandrowicz told Fountain that he did not want the boat registered
in his own name. (Tr. 5161).
In 1986 Reiter also purchased a Corvette for his son's
birthday. (Tr. 520-25, 6320-24, 6342-47). The purchase was arranged after James Jackson drove Edward Jackson to
Gianpietro's to meet Reiter. (Tr. 521). There Reiter directed
Edward Jackson to put the car in Reiter's wife's name (Tr.
521-23, 6323-24), and gave him a down payment of $5,000 in cash
in a brown paper bag. Subsequently Reiter made additional
payments of at least $10,000 for the car. (Tr. 6347-57).
B. The Defense Case
No defendant testified on his own behalf, and only defendants
Reiter and Rollack presented any evidence in their defense cases.
1. Mark Reiter
Reiter called 23 witnesses in an ultimately unsuccessful effort
to rebut the Government's case against him. A number of those
witnesses primarily addressed the Government's tax case against
Reiter. For example, Robert Giusti, an employee of Barco Auto
Leasing, testified that an auto leased by Dolores Reiter from
Pisces Auto Leasing was ultimately purchased outright by Mrs.
Reiter for approximately $25,000. (Tr. 7118-23). Murray Appleman,
a tax attorney, testified that, having been told by Reiter that
Reiter was under investigation for non-tax criminal matters, he
had advised Reiter that he should not provide information
requested on tax returns but should instead pay estimated taxes
and claim a Fifth Amendment privilege. (Tr. 7204-19). On
cross-examination, Appleman acknowledged that he had gathered no
information from Reiter except that Reiter was under
investigation and that he had charged Reiter $500 or $1,000 each
year for his services. (Tr. 7231, 7242). Appleman also admitted
that he had recommended that Reiter pay $9,000 in estimated taxes
in a particular tax year because Appleman was forwarding a check
to the Internal Revenue Service on Reiter's behalf and Appleman did not want to fill out
a currency transaction report for the cash that Reiter gave him.
Also in connection with the tax case, Lisa Cotoggio, an
employee at DTF Marina who had been romantically involved with
Reiter and who was a cousin of Frank DeStefano, a part owner of
DTF Marina, testified in substance that DeStefano had falsified
invoices that the Government had introduced into evidence
respecting the Fountain power boat. (Tr. 7127-34, 7141-51, 7177;
GX 1215, 1216). Cotoggio also stated that she had accompanied
Reiter to Fire Island on Labor Day weekend in 1987, when
Government witnesses testified that Reiter had been attending
numerous meetings in the aftermath of learning that Jackson had
become a Government informant. (Tr. 7176). On cross-examination,
Cotoggio admitted that she was not employed at DTF Marina during
the time periods indicated on certain of the allegedly falsified
exhibits. (Tr. 7180-84). Cotoggio also stated that she had been
asked to testify a few weeks prior to her appearance and had not
spoken with Reiter during the intervening period. (Tr. 7188-89).
William Kooiman, who is Reiter's half brother, testified that
he was "partner" with Reiter in buying the Fountain power boat,
although he contributed no money to the boat's purchase, and that
Reiter said that Kooiman "could use [the boat] or share in some
time on it." (Tr. 7886-88). On cross-examination, Kooiman stated
that he had ridden on the boat only once and that the boat had
been registered in his name because it was thought that the boat
might eventually be sold in Massachusetts, where Kooiman lives,
and because "[i]t has to go in one or the other's name, so we
just decided to put it in one name." (Tr. 7890-92). Mary Ann
Murphy, an employee of All-state Insurance Company, testified
that a particular telephone number listed on Government Exhibit
726 was an office telephone number. (Tr. 7256-57). Edward Jackson had
previously testified that the number, which he had written in
connection with his arranging the lease of a Corvette for
Reiter's son, was Reiter's number. (Tr. 6342-43).
To rebut the Government's wiretap evidence against him, Reiter
called Joseph Barrato, chief executive officer of Brioni's Roman
Style. He confirmed that "Brioni" is a trade name of a suit, and
that the company had four retail outlets in Manhattan. (Tr.
7258-59). In the Government's case, Special Agent Robert
Russillo, without contesting that "Brioni" was also the trade
name of a suit, had testified that, in an intercepted telephone
conversation, "Brioni" was probably being used as a code name for
heroin. (Tr. 5734, 5800-01). Edward Siedlick, a licensed private
investigator who had listened to and electronically enhanced
certain of Reiter's intercepted conversations, also disputed the
transcription and interpretation by Special Agent Russillo of
particular tape-recorded conversations. (Tr. 7664-70, 7673-75,
Reiter called numerous other witnesses in an effort to
demonstrate that the Government's accomplice witnesses,
principally Jackson, Loiacono, and Corallo, were lying. For
example, Anita Barretta, who had known Mark Reiter for seven
years and had been romantically involved with him, testified that
Reiter never drank and often went out of town with her for entire
weekends. (Tr. 7766-73). That testimony was offered to rebut
Jackson's testimony that Reiter had had a drink during one of
their meetings and that he often met with Jackson on Sundays.
(Tr. 405-08, 492). Barretta also stated that Reiter was involved
with flea markets, which he supplied with factory overruns from
warehouses. (Tr. 7783). On cross-examination, Barretta admitted
that she had never been to a flea market with Reiter and did not know what flea markets he supplied or where he obtained
merchandise. (Tr. 7821-24). She also admitted that she was not
sure whether she had spent Labor Day weekend of 1987 with Reiter,
nor whether they had gone to Fire Island or the Hamptons. (Tr.
Joseph Sherman, who was serving a jail sentence for a narcotics
conviction, testified that James Jackson had told him that he had
received his heroin from a Caucasian named "Frankie," whom
Sherman had met and who was not Reiter. (Tr. 7847-48, 7850,
7866-67). Sherman acknowledged on cross-examination that he had
only seen "Frankie" once, that he had never seen any money or
drugs exchanged between "Frankie" and Jackson, and that Jackson
may have had other sources of supply. (Tr. 7858-60).
Joseph "Jazz" Hayden testified that he had met Reiter and
Loiacono and had asked to borrow money from Reiter, but that
Reiter had not made a loan to him. (Tr. 7345-55). Hayden also
said that Loiacono had secretly urged him to sell narcotics and
that Reiter and Loiacono had had an altercation when Reiter found
out what Loiacono had done. (Tr. 7351-54). On cross-examination,
Hayden admitted to having been convicted of numerous narcotics
offenses and of manslaughter, and he denied his guilt as to all
of those offenses. (Tr. 7377-83). Hayden also admitted knowing
Rollack, Nicky Barnes, Steve Monsanto, Peter Monsanto, Walter
Centano and William Underwood. (Tr. 7383-85, 7390, 7394, 7408,
7479-81). Susan Lobos contradicted previous testimony by Loiacono
to the effect that her boyfriend "Wayne" had stolen heroin from
Loiacono. (Tr. 7619-22). Lobos admitted on cross-examination that
"Wayne" was in jail on a weapons charge. (Tr. 7628).
Joseph Corallo, the son of Salvatore Corallo, stated that his
father was in the cocaine and heroin business but that Reiter was "dead set against it" and that his father,
therefore, had hid his narcotics activities from Reiter. (Tr.
7899, 7905, 7909). He testified that his father had written him a
letter saying that the elder Corallo was trying to help his son
in a homicide case pending aganst the son. (Tr. 7912; Reiter DX
F). On cross-examination, Joseph Corallo acknowledged socializing
with Reiter's son Greg and testified that he was "like family"
with both of Reiter's sons. (Tr. 7930-31). He also stated that
Reiter had told him that he worked in flea markets and the
construction business. (Tr. 7933-34). Joseph Corallo denied ever
having told law enforcement agents that Reiter was involved with
heroin. (Tr. 8022).
Reiter also called several law enforcement officers (Tr.
7491-523, 7585-95), and he called other witnesses who refused to
testify on the basis of their Fifth Amendment privilege. (Tr.
7266-68, 7232-36, 7342, 7741, 7745-47).
2. Leonard Rollack
Special Agent Camille Colon of the Drug Enforcement
Administration was recalled by Rollack and questioned about her
search pursuant to a warrant of 119 Root Avenue, where Rollack's
wife and children were staying at the time Rollack was arrested
during the trial. (Tr. 8055-69). Eddie Mustafa Muhammed, a boxer
who won the Golden Glove Award in 1971 and 1972, testified that
Rollack, with whom he was friends, was a talented boxer and that
Rollack had asked to borrow money from him after being released
from prison. (Tr. 8083-84, 8090, 8094). Rollack also called
Eugene Romero to display his hand. (Tr. 8209). Romero otherwise
invoked his Fifth Amendment privilege outside the presence of the
jury. (Tr. 8209-10). Finally, Walter Johnson, who had been incarcerated in Ashland,
Kentucky, with Jackson, Rollack and Romero, and who was presently
serving a sentence on a narcotics conviction, testified that he
had sold drugs on 115th Street between Seventh and Eighth Avenues
and that a price dispute had arisen with Norman Bannister. (Tr.
8219-20, 8258-59, 8269-72). Johnson said that, shortly before
Bannister was murdered, Jackson had told him that he was going to
kill Bannister and later claimed credit for the murder. (Tr.
8277, 8291, 8295-96). Johnson admitted on cross-examination that
the source of 100 quarters of heroin that Johnson had sold to an
undercover officer in 1983 was Rollack. (Tr. 8326-27). Johnson
further stated that he had obtained drugs on four or five
occasions from Rollack for resale on 115th Street in Manhattan
(Tr. 8328-29). Johnson further acknowledged on cross-examination
that Jackson, Rollack, Romero and Cobbs were all working together
and that most of the sales from Rollack to Johnson occurred after
the killing of Bannister. (Tr. 8330-31). In addition, Johnson
admitted that he had previously lied to prosecutors about the
role of a woman named Margie Gates in Jackson's enterprise, and
he conceded that it would not have been prudent for Jackson to
have told him about the planned killing of Norman Bannister
before it happened. (Tr. 8323-24, 8350-51).
C. The Government's Rebuttal Case
The Government presented three witnesses in a brief rebuttal
case. Detective Michael Clark of the New York City Police
Department described the circumstances of the arrest of Joseph
Corallo for murder and Corallo's post-arrest interview.* (Tr.
8428-51). In the interview,
* The jury was instructed to consider the statements made by
Joseph Corallo in the interview only insofar as they had bearing
on Corallo's credibility as a trial witness and not to consider
the statements for their truth. (Tr. 8456). Joseph Corallo had acknowledged shooting his murder victim,
Joseph Consoleto, twice in the head with a .357 Magnum. He
further stated that his father Salvatore Corallo and Mark Reiter
were involved in the heroin business and that three kilograms of
Reiter's heroin was being stored by his father. (Tr. 8445-49).
Through two additional witnesses, Marco Hernandez, a
corrections officer at the MCC, and Anthony Brito, a Special
Agent with the Internal Revenue Service, the Government
introduced recordings of telephone conversations between Reiter
and defense witness Lisa Cotoggio. (Tr. 8518-48; GX 985 & 986).
Those conversations, in which Cotoggio's upcoming testimony was
discussed, contradicted Cotoggio's assertion on the stand that
she had not consulted with Reiter about her testimony. (Tr.
7188-89; GX 985, 986).
The District Court Properly Denied Each Defendant's Severance
On appeal all defendants except Smith claim that the District
Court's denial of their various severance motions was an abuse of
discretion. Reiter claims in particular that severance was
required because of prejudicial spill-over from evidence against
his co-defendants and because of conflicting defense strategies
at trial. (Reiter Br. at 52-54, 59). Dicks argues that he was
entitled to a separate trial because, in comparison with the
other four defendants in the case, he played a disproportionately
small role in the racketeering enterprise and was the only
defendant not charged in a homicide. (Dicks Br. at 39-52).
Rollack contends that his severance motion should have been
granted because James Jackson was the only prosecution witness to implicate Rollack in Jackson's
racketeering enterprise and thus that a separate trial of him
would only have taken two days. (Rollack Br. at 29-33). Clark
bases his claim on the assertion that there was spillover
prejudice because, in contrast to the case against the other
defendants, there was no evidence against him of unexplained
wealth nor was there any eyewitness testimony about the homicides
he committed. (Clark Br. at 12-13). Notwithstanding those
specious claims, Judge Owen acted well within his broad
discretion in denying all the severance motions.
A. General Principles
This Court has repeatedly held that defendants who are indicted
together should normally be tried together. See, e.g., United
States v. Ventura, 724 F.2d 305, 312 (2d Cir. 1983); United
States v. Lyles, 593 F.2d 182, 192 (2d Cir.), cert. denied,
440 U.S. 972 (1979); United States v. Borelli, 435 F.2d 500
(2d Cir. 1970), cert. denied, 401 U.S. 946 (1971). As the
Supreme Court recently observed:
It would impair both the efficiency and the fairness
of the criminal justice system to require . . . that
prosecutors bring separate proceedings, presenting
the same evidence again and again, requiring victims
and witnesses to repeat the inconvenience (and
sometime trauma) of testifying, and randomly favoring
the last-tried defendants who have the advantage of
knowing the prosecution's case beforehand. Joint
trials generally serve the interests of justice by
avoiding inconsistent verdicts and enabling more
accurate assessment of relative culpability
advantages which sometimes operate to the defendant's
benefit. Even apart from these tactical
considerations, joint trials generally serve the
interests of justice by avoiding the scandal and
inequity of inconsistent verdicts. Accordingly, because Rollack sought to offer the statements of
his own co-conspirator on his own behalf, he was not entitled to
invoke Fed.R. Evid. 801 (d) (2) (E). Judge Owen thus properly
excluded the hearsay statements of "Sonny."*
The District Court Properly Refused To Direct The Government
To Grant Immunity To Numerous Defense Witnesses.
Clark and Reiter each contend that the District Court's refusal
to order the Government to grant potential defense witnesses use
immunity violates Due Process and mandates reversal. In
particular, Reiter, joined by Clark with respect to the first two
witnesses, claims that immunity should have been granted to five
potential defense witnesses: Eugene Romero, Ted Key, Ronald
Conquest, Renee Gary and Olga Endara. That contention, which is
supported neither by the facts nor by the pertinent law, borders
on the frivolous. Reiter's and Clark's strategy is transparent:
first, they make the highly unlikely claim that their defense is
dependent on the testimony of their criminal accomplices and
co-racketeers, and then they claim that they have been denied Due
Process unless those putative witnesses are given blanket use
immunity, thus complicating the Government's prosecutions of
those co-racketeers. As is set forth below, Reiter and Clark do
not even meet the threshold general showing that is required
before a court can grant a defense witness immunity request, nor
do they satisfy the particularized
* Judge Owen's exclusion was, of course, harmless. Rollack,
without Government objection, was able to elicit enough testimony
from Johnson about his conversations with Jackson to allow
Rollack's counsel to argue that Jackson had committed the murder. elements that must be established with respect to each witness
for whom immunity is requested. Accordingly, the District Court
was entirely correct in denying their defense witness immunity
A. The Applicable Law
The right to defense witness immunity exists, if at all, only
in "extraordinary" situations, and this Court has uniformly
rejected claims for such immunity. United States v. Turkish,
623 F.2d 769, 777 (2d Cir. 1980), cert. denied, 449 U.S. 1077
(1981) (collecting cases); United States v. Calvente,
722 F.2d 1019, 1025 (2d Cir. 1983), cert. denied, 471 U.S. 1021
(1985); Grochulski v. Henderson, 637 F.2d 50, 52 (2d Cir.
1980), cert. denied, 450 U.S. 927 (1981); United States v.
Praetorius, 622 F.2d 1054, 1064 (2d Cir. 1979), cert. denied,
449 U.S. 860 (1980). Where the witnesses for whom immunity is
sought are actual or potential targets of prosecution, "trial
judges should summarily reject claims for defense witness
immunity," United States v. Turkish, supra, 623 F.2d at 778,
and an immunity request should only be entertained if the court
finds that "(1) the government has engaged in discriminatory use
of immunity to gain a tactical advantage or, through its own
overreaching, has forced the witness to invoke the Fifth
Amendment; and (2) the witness's testimony will be material,
exculpatory and not cumulative and is not obtainable from any
other source." United States v. Burns, 684 F.2d 1066, 1077
(2d Cir. 1982), cert. denied, 459 U.S. 1174 (1983). As is set
forth below, there was no discriminatory use of immunity by the
Government here, and all of the five witnesses for whom defense
immunity was sought were actual or potential targets of
prosecution, a status which "warrants summary rejection of a
claim for defense witness immunity." United States v. Todaro,
744 F.2d 5, 9 (2d Cir. 1984), cert. denied, 469 U.S. 1213
(1985). Accordingly, Judge Owen did not abuse his discretion in refusing to order the Government to grant the requested immunity.
B. The Government Did Not Engage In Discriminatory Use of
Immunity to Gain a Tactical Advantage.
One of the threshold requirements that the defendants must meet
to establish that a defense witness should be granted immunity is
a showing that the Government engaged in discriminatory use of
immunity to gain a tactical advantage. While the law is not
well-defined as to the precise meaning to be accorded to the
phrases "discriminatory use" or "tactical advantage," the record
below is plain that the Government made no improper use of its
ability to confer immunity. In the course of the trial, the
Government presented a total of 60 witnesses, of whom only three,
Adrienne Holiday, Karen Jenkins, and Reginald Fountain had
entered into agreements providing that they would not be
prosecuted for any of the crimes that their testimony disclosed.
Both Holiday and Jenkins had served at the lowest levels of the
Jackson enterprise, cutting and packaging drugs for a flat
salary, while Fountain's testimony disclosed only that he had
failed to file Currency Transaction Reports in his sale of a boat
to Mark Reiter. Furthermore, unlike the use immunity accorded
under 18 U.S.C. § 6003, Jenkins testified pursuant to a
co-operation agreement that provided that the Government could,
in fact, use her testimony against her if she violated any of the
material conditions of that agreement. Only Holiday was accorded
complete use immunity, pursuant to 18 U.S.C. § 6003, for her
testimony. One government witness, Larry Taylor, testified
concerning his narcotics activities with Clark without any
immunity or co-operation agreement whatsoever. Taylor stated that
he understood that he could be prosecuted for the crimes that his
testimony disclosed. (Tr. 6101-02, 6123-24). In a misleading effort to suggest that the Government engaged
in the discriminatory use of immunity, Reiter asserts that "the
Government had the benefit of immunized testimony from some
fourteen witnesses."* (Reiter Br. at 49). Almost all the
witnesses that Reiter alludes to, however, testified under
cooperation agreements that are in no way comparable to the use
immunity that the defendants sought to have conferred on their
witnesses. Indeed, of the 14 so-called "immunized" prosecution
witnesses, nine were specifically required under their agreements
to plead guilty to one or more criminal charges or had already
pleaded guilty to charges relating to the crimes disclosed by
their testimony. ** Nor is it correct to characterize the
testimony of such prosecution witnesses as "immunized," for,
unlike with respect to immunity conferred under Section 6003, the
agreements under which each testified explicitly provided both
that the testimony could be used against the witness if the
witness breached any condition of the agreement and that
derivative use could be made of information obtained from the
Typical of such cooperation agreements is the one under which
James Jackson testified. That agreement provided, inter alia,
that Jackson would plead guilty to criminal charges exposing him
to 45 years of incarceration and $1,000,000 dollars in fines,
that he would testify
* Notwithstanding Reiter's suggestions to the contrary, there
was nothing unfair about the District Court's denial of requests
for defense witness immunity, and any abstract prejudice that
might result from the denial of immunity was obviated by the
District Court's inclusion in its charge to the jury that Key,
Conquest, Gary and Romero were equally unavailable to both sides
and that the jury should closely scrutinize immunized testimony
from the Government's witnesses. (App. at 330-31).
** Those witnesses are James Jackson, Joseph Bethea, LeRoy
"Nicky" Barnes, Salvatore Corallo, Walter Centano, Robert "J.R."
Thompson, Elvornia Myles, Russell Fleming and Vito Loiacono. fully and truthfully as requested by the Government and that any
information he provided could be used against him if he committed
any further crimes or otherwise violated the agreement. By
contrast, had a defense witness been granted the immunity sought
by the defendants and then later been prosecuted by the
Government for an arguably related offense, the Government would
have had the "heavy burden" of proving at a Kastigar hearing,
see Kastigar v. United States, 406 U.S. 441 (1972), that
neither direct nor derivative use had been made of that
testimony.* United States v. Turkish, supra, 623 F.2d at 775
(noting obstacles to successful prosecution of immunized
witness). Similar cooperation agreements, exposing the respective
witnesses to prison terms ranging from 10 to 30 years, governed
the testimony of Joseph Bethea, Robert Thompson, Elvornia Myles,
Russell Fleming, and Vito Loiacono.
Thus, Reiter's and Clark's suggestion that the Government made
"discriminatory use" of the type of immunity that they requested
for their potential defense witness is simply unsupportable.
C. All Proposed Defense Witnesses Were Actual or Potential
Targets of Prosecution.
As is set forth above, the law is clear that "trial judges
should summarily reject claims for defense witness immunity"
when the defense witnesses are actual or potential targets of
prosecution. United States v. Turkish, supra, 623 F.2d at 778
(emphasis added). "No hearing should be held to establish such
status," and "[t]he prosecutor need only . . . set ? forth the
circumstances that support the prosecutor's suspicion of the
* Jackson's cooperation agreement was typical in explicitly
allowing the Government to make derivative use of any information
Jackson provided and in waiving any claims of "taint" that
Jackson might otherwise have had. criminal activity." Id. This is not a case where the defense
called witnesses who were unknown to the Government but who
demanded immunity. Instead, all five of the witnesses for whom
the defense requested immunity were intricately involved in these
criminal proceedings and were actual or potential targets of
prosecution themselves. Had their requests for immunity been
granted, those witnesses stood to reap a windfall of potential
Kastigar claims that might have interfered with their future
successful prosecutions. For each proposed defense witness, the
record is more than sufficient to establish each witness's status
as an actual or potential target of prosecution, and Judge Owen
was thus entirely justified in summarily rejecting the requests
for immunity for each of the proposed witnesses.
1. Eugene Romero
The evidence at trial demonstrated that Eugene Romero ran what
later became the Jackson enterprise from 1979 through 1982 and
participated in the murders of Allen Bailey, Norman Bannister,
Beverly Ash, Barry Wilson, Steven Ash and others. Romero had
pleaded guilty pursuant to Fed.R.Crim.P. 40 in the District of
Columbia to one count of racketeering in the fourth superseding
indictment, just before Jackson began cooperating. Thus, he
plainly faced prosecution, either on the State or the Federal
level, on a variety of new charges that Jackson's testimony and
other new information had disclosed. Referring to proceedings
concerning Romero with which the District Court was already
acquainted, the Government informed the Court:
I do represent to the court that it is very possible
that Mr. Romero will face subsequent charges in the
Southern District of New York for conduct that was
uncovered subsequent to the date of the entry of his
plea. As your Honor knows, we made a motion to withdraw the
plea based upon the newly discovered evidence which
Judge Parker in the District of Columbia denied.
However, there are a number of charges that were not
contained in the indictment that could be brought
against Mr. Romero, and on that basis he does have a
valid Fifth Amendment assertion and on that basis the
government is not prepared to immunize him.
(Tr. 6238-39). The District Court was plainly justified in
concluding that Romero was an "actual or potential target of
prosecution," and neither Reiter nor Clark points to anything in
the record to suggest that the District Court's conclusion was
erroneous. Furthermore, in light of the fact that Reiter called
Romero to testify solely about how he obtained a scar on his hand
(Tr. 6236), it is by no means clear that such testimony would
ever meet the materiality requirement of United States v.
2. Ted Key
Ted Key, who was an active member of Jackson's racketeering
enterprise and who, according to Jackson, had participated in the
murder of James "Boo" Simmons, was called by Reiter to testify
that he had never seen Reiter. (Tr. 7305-06). Key had made a
number of statements to prosecutors and other Federal officials
that were inconsistent with answers that Slotnick and other
defense counsel said they expected to elicit. (Tr. 7303-05). The
Government informed the Court that "Ted Key has made contrary
statements to the testimony that Mr. Slotnick anticipates in our
office. He can be prosecuted for the false statements to us, if
he now contends they were false. He is in tremendous jeopardy."
(Tr. 7315-16). The Government also stated that Key: always faces exposure in the state. There is no plea
agreement entered into with Mr. Key where he has some
kind of immunity. He always faces prosecution by the
state for any narcotics activities he may talk about,
he faces possible prosecution on the homicide if it
were to come out that he was involved in the Simmons
In response to an assertion by Reiter that Key's "invocation of
the Fifth is frivolous," the District Court responded: "He pled
to being a member of the Jackson organization, selling heroin,
and that was the limit and extent of his plea. You can look at
the minutes." (Tr. 7334). The District Court thus had ample basis
to decline to order the Government to grant immunity to Key on
the grounds that Key was a potential target of further
3. Ronald Conquest
Ronald Conquest, also known as Ronald Maxwell, who was the
husband of Renee Gary, was one of Reiter's
* Reiter's suggestion that the Government "intimidated" Key
into asserting his Fifth Amendment privilege is contradicted by
the statements in the record by Key's own counsel, which confirms
that Key had never wanted to testify because his testimony might
put him in jeopardy of further prosecution and that Key only
entertained the thought of testifying as a result of pressure
originating from the defendants. (Tr. 7296-97, 7324-28, 7330,
7435). As the Government pointed out, Key already felt
intimidated, not by the Government, but by the defendants. (Tr.
7307, 7310, 7324, 7328-29). If Key had agreed to testify, the
Government could easily have established the damaging fact that
he had identified a photograph of Clark, whose crimes were known
but whose identity was unknown to the Government, prior to
Clark's arrest. It is thus ironic that Clark now complains of his
exclusion. (Tr. 7321-22). tial target of prosecution and it properly declined to order that
she be granted immunity. In addition, other than stating that
Gary would be asked "limited questions that will not create
exposure" (Tr. 7263), Reiter proffered nothing about the subject
matter of Gary's testimony. Accordingly, not only was Gary an
actual or potential target of prosecution, but Reiter plainly did
not meet his required burden of showing that her testimony would
be material, exculpatory, not cumulative and unobtainable from
any other source.
5. Olga Endara
Olga Endara, an employee at DTF Marina, was, according to
Reiter's proffer, going to testify about Frank DeStefano's
falsifying of certain invoices that were introduced into evidence
in connection with the tax count against Reiter. (Tr. 7171-74).
After Endara invoked her privilege against self-incrimination,
the Government represented to the trial court that plea
discussions were under way with Endara concerning an
investigation of Endara's personal income taxes by the Internal
Revenue Service. (Tr. 7070-71). In addition, the Government
stated that DTF Marina, where Endara was employed, was under
investigation for its corporate tax returns. (Tr. 7171). The
Government's assertions were not disputed, and the District Court
obviously had a sound basis to conclude that Endara was a target
The record is thus clear that all five defense witnesses for
whom immunity was sought were targets of prosecution. That status
made it unnecessary for the District Court to hold a hearing to
determine whether the evidence each witness might offer was
material, exculpatory, not cumulative and not obtainable from any
other source. United States v. Burns, supra, 684 F.2d at 1077. Even without
such a hearing with respect to many of the witnesses, it was
highly questionable whether their testimony could meet the
Burns test. In any event, once the District Court had
determined that each witness was asserting his or her claim of
privilege concerning areas of inquiry that were the subjects of
potential prosecution, it was not an abuse of discretion to
decline to order immunity. There was no discriminatory use of
immunity by the Government, and "[t]he essential fairness
required by the Fifth Amendment . . . does not create a general
obligation for prosecutors or courts to obtain evidence protected
by lawful privileges." United States v. Turkish, supra,
623 F.2d at 777. Accordingly, Reiter's and Clark's claim that they
were denied Due Process by the failure to have defense witnesses
immunized should be denied.
The District Court Properly Charged the Jury.
Reiter claims that the District Court erred both by failing to
require special interrogatories identifying the five people
supervised by Reiter in his continuing criminal enterprise
("CCE") and by giving improper instructions regarding aiding and
abetting, conspiracy and evidence of flight. Reiter's claims are
A. The District Court Did Not Abuse Its Discretion In Denying
Reiter's Request For Special Interrogatories For The CCE Count.
Reiter first contends that the District Court erred in refusing
to submit special interrogatories to the jury requiring it to
identify the five or more individuals supervised by him in
connection with the CCE count. Relying on United States v.
Roman, 870 F.2d 65 (2d Cir.), cert. were managed, supervised or organized by Reiter in the operation
of his continuing criminal enterprise.
a. James Jackson*
The evidence that Jackson was organized, supervised, or managed
by Reiter, his primary heroin supplier from at least 1982 through
1987, was overwhelming and is fully set forth in the Statement of
Facts. Among other evidence, it includes proof that Jackson
helped Reiter collect money from recalcitrant customers, such as
Eric Von Zipp (Tr. 526-30), and explicitly followed Reiter's
orders to kill Beverly and Steven Ash in order to protect
Reiter's continuing criminal enterprise. (Tr. 317-43).
b. Eugene Romero
Again the overwhelming "supervisee" evidence as to Romero,
fully set out above, need not be repeated. Romero, among numerous
other activities on Reiter's behalf, directly organized the
murders of Beverly and Steven Ash because, once he received
Reiter's order to do so, "he was going to do what [he] h[ad] to
do." (Tr. 318-19). The sufficiency of the evidence as to his
status as a "supervisee" is indisputable.
c. Salvatore Corallo
Corallo was one of Reiter's primary lackeys. In addition to
storing, processing and distributing heroin at
* In its main summation, the Government told the jury that as
it listened to the District Court's instruction, "five names are
going to pop immediately into your head, as [the judge] tells you
what supervisees mean. The five names that . . . will first pop
into your head are James Jackson, Eugene Romero, Billy Battista,
Vito Loiacono and Sal Corallo." (Tr. 8805). Reiter's direction, Salvatore Corallo obeyed Reiter's command to
plead guilty to narcotics charges before the Honorable Mary
Johnson Lowe so that Reiter's continuing criminal enterprise
would not be jeopardized. (Tr. 2443-51). Corallo was Reiter's
"mule," and he explicitly testified at trial that Reiter managed
and supervised his heroin activities.
d. Vito Loiacono
Loiacono, another lackey for Reiter, distributed heroin to and
collected money from Reiter's heroin customers, including
Jackson, Peter Monsanto, Eric Von Zipp, Mitchell Jackson, Ronald
Conquest, Warren Tyson and others. (Tr. 4049-4144). His status as
a supervisee, fully set forth at length in his trial testimony,
is simply beyond dispute.
e. Billy Battista
Billy Battista, known to Jackson as Billy "White Hair," became
Reiter's right-hand man. Early on Battista was "distributing the
heroin for Mark, pick[ing] up money, set[ting] up appointments,
pack[ing] up the drugs and stor[ing] it." (Tr. 4028).
Representative of the strong supervisee proof as to Battista, he
was recorded in a telephone conversation with Corallo, where both
complained about the difficulties of working for Reiter. (Tr.
2399-2411; GX 615).
f. Russell Fleming
Russell Fleming, who picked up heroin from and delivered cash
to Reiter when Jackson was in Virginia and after Jackson's arrest
in 1987, acted as a go-between for both Jackson and Reiter. It
was Fleming who communicated to Jackson both Reiter's initial
refusal to provide money for Jackson to pay his lawyer and
Reiter's subsequent decision, after Ruggiero's intervention, to provide heroin to
Fleming to subsidize Jackson's defense. When Reiter learned that
Jackson was cooperating with the Government, Reiter instructed
Loiacono to contact Warren Tyson, a/k/a "Otis," to have Fleming
killed. (Tr. 4172). From at least 1986 until he was arrested in
1987, Fleming served as Jackson's alter ego and plainly shared
Jackson's status as one of Reiter's supervisees.
g. Warren Tyson, a/k/a "Otis"
Warren Tyson, a/k/a "Otis," was a consignment heroin customer
of Reiter from 1985 through 1987, who had been recruited for
Reiter by Eugene Romero. (Tr. 4035-39, 4071, 4085-87). Tyson
received orders from Reiter via Loiacono to hire a lawyer for
Romero after Romero was arrested. (Tr. 4089-91). Tyson also was
ordered by Reiter, again through Loiacono, to kill Fleming after
Reiter had learned that Jackson was a Government witness (Tr.
4172), and Tyson agreed to contact Loiacono if he learned of
Fleming's whereabouts. (Tr. 4173-74). Tyson's consignment
obligations to Reiter made Tyson thoroughly dependent on him and
allowed Reiter to direct him to perform services for Reiter's
continuing criminal enterprise.
h. Joseph "Jazz" Hayden
Jazz Hayden bought heroin from Reiter on three occasions, with
the final two purchases transacted on a consignment basis. (Tr.
4109-14). The distributions ceased because Hayden was arrested.
(Tr. 4113-14). Hayden also testified as a witness for Reiter,
asserting that he had never purchased heroin from Reiter but
instead had tried to borrow money from Reiter. (Tr. 7345-54). The
Government properly pointed out on summation that Hayden's
perjury on the stand was just one more manifestation of Reiter's
control over Hayden. i. Ronald Maxwell, a/k/a "Ronald Conquest"
Ronald Conquest, the husband of Renee Gary, received pure
heroin from Loiacono at Reiter's direction on at least eight
occasions, often on a consignment basis. (Tr. 4072-75). Reiter
obtained Conquest as a customer after Mike Levy, the owner of
Gianpietro's, had recommended him. (Tr. 4073). When Conquest's
wife, Renee Gary, was questioned by the police about Conquest's
source of supply, Gary warned Reiter; and, when Conquest was
arrested, Reiter helped him retain Robert Simels as his counsel
and then had meetings with Simels. The Government argued in
summation that Reiter's obtaining of a lawyer for Conquest and
being warned by Conquest's wife about dangers from law
enforcement, in the context of Conquest's being a consignment
customer, was strong evidence of Reiter's supervisory control
over Conquest. (Tr. 8864-67). Plainly, Reiter was "calling the
shots" with respect to Conquest. United States v. Bolts,
558 F.2d 316, 320 (5th Cir. 1977), cert. denied, 439 U.S. 898
j. Mike Levy
Mike Levy, the owner of Gianpietro's, performed a variety of
services for Reiter, in particular providing a meeting place,
message drop and liaison service for Reiter. When Jackson ran
"dry" in 1984, he contacted Levy and told him that he needed to
see Reiter, and within about 20 minutes, Reiter appeared. Ronald
Conquest and Reiter were videotaped coming out of Gianpietro's,
and both Loiacono and Jackson testified about numerous deliveries
of heroin that were made at Gianpietro's. Reiter also told
Loiacono that he had obtained Ronald Conquest as a heroin
customer through Mike Levy (Tr. 4073), and that Levy had
introduced him to Peter Monsanto, who received deliveries of
heroin at Gianpietro's. (Tr. 4039-40). The evidence amply supported the
Government's argument in summation that it was impossible for
Mike Levy to have performed those services at Reiter's direction
and for all those narcotics activities to have occurred at a
small boutique like Gianpietro's, without Mike Levy, the owner,
knowing about the criminal nature of Reiter's activities. (Tr.
k. Cathy Burke
Cathy Burke's name first arose at trial when Corallo described
his dealings with the heroin customer whom he described as
"Cherry Lime Rickey." (Tr. 2320-23). "Cherry Lime Rickey" was
refusing to buy heroin from Reiter because of a previous dispute
and therefore Reiter could not use Loiacono as a courier because
"Rickey" knew that Loiacono worked for Reiter. (Tr. 2321,
4116-17). Reiter arranged that he, Corallo and Cathy Burke would
all meet at a restaurant, and when they all assembled Reiter gave
instructions to Burke and Corallo about how Burke was to
introduce Corallo to "Rickey." (Tr. 2322). After giving those
instructions, "Mark and Cathy spoke in a secret way," following
which Burke led Corallo to meet "Rickey" a few blocks away. (Tr.
2322-23). Corallo criticized Reiter for using a woman to assist
in heroin deliveries (Tr. 2322), and made the following comments
to Burke as she led him to meet "Rickey":
[A]s we were walking I told her that there was no
room in this business for guys and girls, and it
was guys and girls, and I said it in a way that I was
annoyed that she was introducing me to somebody in
the heroin business.
(Tr. 2323). Loiacono, who previously had distributed heroin to
"Rickey," also testified that his first meeting with "Rickey" had
occurred at Cathy Burke's house. (Tr. 4114-17). In addition to playing an active role in arranging Reiter's
heroin distributions to "Rickey," Burke performed other services
for Reiter. Intercepted telephone conversations between Reiter
and Burke showed that Burke had helped Reiter arrange to have a
car put in a nominee's name and that Reiter directed her to
contact Allen Morris, a heroin customer whom surveillance agents
saw meet with Burke on Labor Day weekend 1987, shortly before
Reiter fled to California. (GX 975; Tr. 5363-73, see also, Tr.
8849-60). In addition, both Loiacono and surveillance agents
confirmed that Burke and Reiter met on the street near Reiter's
apartment shortly after Reiter received the warning from Ruggiero
that Jackson was cooperating, and that Burke was also present as
pay phones were used to warn "Otis" and "Red Jack" about the
development. (Tr. 4160-62, 5261-67, 5350-53). Finally, when
Loiacono was instructed to give false identification documents to
Greg Reiter for him to deliver to his father in Florida, Loiacono
was instructed to and did pick them up at Cathy Burke's house.
Notwithstanding Reiter's after-the-fact suggestion to the
contrary, on the basis of substantial evidence in the record,
including telephone conversations played to the jury, there was
more than sufficient basis for the jury to conclude that Cathy
Burke was one of Reiter's "supervisees."
I. Greg Reiter
Reiter points out correctly in his brief that the Government
confirmed at Reiter's sentencing that there was no evidence at
trial showing that Greg Reiter ever physically delivered heroin.
(Reiter Br. at 63). There was, however, ample evidence to
demonstrate that Greg Reiter knew about the nature of his
father's business and that his father used him repeatedly to
assist in that business.
The evidence showed that Greg Reiter was directed by his
father, after Reiter had fled, to rid Reiter's apartment of any
incriminating evidence. Indeed, Loiacono testified that he discussed with Greg Reiter why Greg Reiter had been so
careless as to leave his father's gun. (Tr. 4171, see also Tr.
4169). That conversation occurred when Loiacono delivered to Greg
Reiter false identification papers, showing his father's
photograph and a different name, for Greg Reiter to deliver to
his father in Florida. (Tr. 4168-69, 4171). Equally significant,
it is Greg Reiter who delivers a message from his father to
Corallo that Corallo was to "[g]ive Vito [Loiacono] anything he
wants," plainly referring to the heroin necessary to keep the
enterprise going while Reiter was in hiding.* (Tr. 2335-36). Greg
Reiter at that time also asked that Salvatore Corallo give Greg a
pay telephone number where Greg's father could call Corallo at a
specified time obviously with respect to the enterprise. (Tr.
2335-36). The jury, in short, had ample basis to conclude that
Greg Reiter knew that his father was engaged in an illegal
enterprise and followed his father's orders in what proved to be
a futile attempt to keep that enterprise operating.
In sum, there was more than sufficient evidence to show that
Reiter organized, supervised, or managed at least five people in
his narcotics enterprise, including Burke and Greg Reiter.
United States v. Roman, supra, which was decided after this
case and which does not explicitly require the use of special
interrogatories for a CCE count in any event, does not compel
reversal of Reiter's CCE conviction here. Because of the
overwhelming "supervisee" proof and because the District Court
correctly instructed the jury that it had to be "unanimous as to
* The jury heard testimony from Joseph Corallo, Salvatore
Corallo's son, to the effect that Joseph Corallo and Greg Reiter
were close friends, "like family," and that Salvatore Corallo
dealt in heroin. `at least five' persons" chosen, Reiter's CCE conviction must be
B. The District Judge Did Not Err In His Jury Charges About
Conspiracy And Aiding And Abetting, And In His Charge About
In an additional effort to find fault with the District Court's
charge to the jury, Reiter claims first that the
* Similarly without merit is Reiter's contention that the
District Court erred in denying his request to charge explicitly
that the requisite five or more underlings had to have been
supervised by him in the conduct of the same continuing criminal
enterprise. In declining to give that instruction, Judge Owen
properly explained that the proposed requirement that the jury
find the supervisees were all involved in the same continuing
enterprise was "implicit in the charge given." (App. at 348).
Again, to convict a defendant of engaging in a CCE, the
Government must prove (1) that he committed a felony under Title
21, (2) that is part of a continuing series of Title 21
violations, (3) which are undertaken by him in concert with
five or more persons, (4) with respect to whom defendant occupies
a position of organizer, supervisor, or manager, and (5) from
which defendant obtains substantial income or resources. United
States v. Aiello, supra, 864 F.2d at 264 (emphasis added);
see United States v. Young, supra, 745 F.2d at 746-47;
21 U.S.C. § 848(c). While the Government and the District Court
agree with the general proposition that Section 848 requires the
five or more persons to have acted under a CCE defendant's
supervision in the conduct of the same continuing enterprise,
cf. United States v. Rhodes, 779 F.2d 1019, 1026 (4th Cir.
1986), that is just another way of stating the "in concert"
requirement already contained within the statute itself and in
the District Court's charge. Because the District Court's charge
to the jury included a proper instruction on the "in concert"
requirement (App. at 309) ("you [must] find beyond a reasonable
doubt that the defendant Reiter undertook to commit a series of
violations of the federal narcotics laws in concert with at least
five or more persons") ("[t]his element is satisfied if you find
the defendant worked together with a total of at least five
others to commit a series of drug violations"), Reiter's claim of
error regarding the District Court's charge should be swiftly