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United States v. Tussa

decided: April 6, 1987.


Appeals from judgments of conviction in the United States District Court for the Eastern District of New York (Maletz, J.) following a jury trial in which appellants were convicted of possession of conspiracy to possess heroin with intent to distribute. Affirmed in part, reversed in part, and remanded.

Author: Pierce

Before: NEWMAN, PIERCE and MINER, Circuit Judges.

PIERCE, Circuit Judge:

These appeals are from judgments of conviction entered after a jury trial in the United States District Court for the Eastern District of New York, Herbert N. Maletz, Judge.*fn1 The appellants were convicted of possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (1982), and conspiracy to possess heroin with intent to distribute, in violation of 21 U.S.C. § 846 (1982). Appellant Amato principally argues that the district court erred (1) by basing denial of his motion to suppress on a finding that probable cause existed for his warrantless arrest; (2) by admitting certain evidence during the trial of other crimes committed by co-defendant Tussa and by Amato himself; and (3) by failing to grant Amato's motion to dismiss pursuant to Fed. R. Crim. P. 29 for insufficient evidence. Appellant Tussa also argues that his arrest lacked probable cause and that the admission of evidence relating to his and Amato's other crimes was error. Patiwana and Zummo contend that the district court erred in allowing a government agent to testify during the trial regarding alleged hearsay statements purportedly made by a confidential informant. Zummo further argues that the admission of similar acts evidence against Amato and Tussa had prejudicial "spill-over" effects as to him and thus requires reversal. Patiwana argues, inter alia, that the district court erred during the trial when it (1) admitted certain fingerprint evidence on rebuttal; (2) refused to compel the government to name the confidential informant; and (3) admitted evidence of certain prior consistent statements.

After reviewing these and other claims presented by appellants, we affirm the convictions of Tussa and Amato, reverse the convictions of Patiwana and Zummo and remand for a new trial as to them.


The government's theory at trial was that Patiwana and his partner, one Ashok Vaswani, sold two kilograms of heroin to Tussa, Amato and one Joseph Spatola, and that Zummo served as the "middleman" in the deal. As discussed below, the evidence suggested that Zummo took part in a series of meetings, some with Tussa, Amato and Spatola, and some with Patiwana. Eventually, Spatola, Zummo and Patiwana met, followed soon thereafter by delivery of two kilograms of heroin by Spatola to Amato and Tussa. At trial, agents of the Federal Bureau of Investigation ("FBI"), who surveilled appellants and others, testified about appellants' various movements in connection with the charged two kilogram heroin deal, which allegedly took place on March 13, 1985.

The agents testified that they observed Tussa, Amato, and Joseph Spatola meet outside Spatola's apartment in Queens, New York, at about 11:00 a.m. on March 13.*fn2 About forty-five minutes later, Amato and Tussa left Spatola and proceeded to the Cafe Aiello. Spatola walked away, and for a short time the surveilling agents lost track of him. Agent Mauzey testified that Tussa, who had entered the cafe, came outside at least three times and looked around. A short while later, Spatola, who apparently arrived at the cafe before Amato and Tussa, was observed leaving the cafe with Paolo Zummo, who returned soon thereafter. Minutes after returning, Zummo again left the cafe, followed about a minute later by Amato and Tussa, who drove off in Amato's car, a white Buick.

The agents followed Amato and Tussa to the Cafe Mondello. Shortly thereafter, Spatola arrived driving a blue Fiat. The three remained outside the cafe for approximately an hour, occasionally looking up and down the street. At one point they walked up the block and entered Vito's Pork Store. One agent noticed Tussa looking out the window of the store. Tussa then left the store and looked up and down the block.

Meanwhile, another team was tracking the movements of Zummo, who was driving a Lincoln Continental. After leaving the Cafe Aiello, Zummo drove to the Park East Shopping Center in Garden City Park, Nassau County. Zummo met appellant Rajan Patiwana at the shopping center, whereupon the two went into a Burger King Restaurant briefly, then, after dropping Patiwana off at his car, a Mercedes Benz, Zummo drove to Howard Johnson's Restaurant in Searington, Nassau County.

Patiwana drove to Howard Johnson's on Jericho Turnpike near the Park East Shopping Center, where he met Ashok Vaswani. After about thirty minutes, Vaswani and Patiwana drove together to the latter's home, a two family residence also near the shopping center, where they remained for about a half-hour. The two then left; Patiwana drove and Vaswani, carrying a briefcase, walked to the shopping center. Patiwana arrived first and waited. When Vaswani arrived, he walked to Patiwana and entered a Pathmark Supermarket. An agent noted that as Vaswani walked by Patiwana, neither acknowledged the other. The agent followed Vaswani, who pushed a shopping cart up and down the aisles but put nothing in the cart other than his briefcase. Patiwana remained outside.

After about an hour, Vaswani left the supermarket with the briefcase and a small plastic Pathmark bag, which bag appeared to contain some paper products. Once again, Vaswani passed Patiwana without acknowledgment. Patiwana made a phone call at a public phone, and then drove away in the Mercedes. Shortly after 4:00 p.m., Vaswani walked back toward Patiwana's residence and entered it. Soon thereafter, Vaswani left Patiwana's residence carrying the briefcase and plastic Pathmark bag and took a taxi to an apartment building on 67th Avenue, which he entered at about 5:20 p.m.

In the meantime, Spatola, Amato and Tussa had returned to the Cafe Mondello and remained there until 1:20 p.m. When they left, Spatola drove the Fiat and Amato and Tussa rode in the Buick. All three drove to the Palace Diner on Main Street and entered the diner together. Shortly thereafter, one Nicolo Argano also went inside. The trio and Argano remained in the diner for about an hour. Around 2:40 p.m., Spatola, Amato and Tussa were observed leaving and talking together. They drove the two cars to the Howard Johnson's Restaurant in Searington. At this location, they conversed; then Spatola met with Zummo, who had arrived separately. Briefly, Spatola walked out of the parking lot, then returned and entered Zummo's car, and the two drove away. A short while later, Zummo and Spatola reappeared at the same parking lot and Spatola left the car. Spatola again met with Amato and Tussa. Finally, Zummo drove away in his Lincoln; Amato followed in his Buick.

At this time, Spatola and Tussa remained in the Howard Johnson parking lot in Searington. Nicolo Argano reappeared and met with Spatola in the parking lot for a short while as Tussa waited in the driver's seat of Spatola's Fiat. These three men then left the parking lot; Tussa drove the Fiat with Spatola, and Argano drove his own car, a brown Ford. They drove to the "Your Place or Mine" bar, where Amato and Zummo waited. Amato was then sitting with Zummo in the Lincoln Continental. Spatola approached the Lincoln, conversed with Zummo and Amato, returned to Tussa in the Fiat and waved to Argano. The Ford, the Fiat and the Lincoln were driven to the Park East Shopping Center, where they were parked far apart. Spatola and Amato entered Argano's car, and the three drove to the far end of the lot.

At 5:16 p.m., Patiwana, who had left the lot about an hour earlier, returned in his Mercedes and parked. Zummo entered the Mercedes for a few moments, and then returned to his car. Patiwana then drove to the corner of the lot, where there were several public phones. As Patiwana spoke on the phone, Zummo waived to Spatola, who had returned to the Fiat with Tussa and Amato. Spatola then left the Fiat and got into the Lincoln with Zummo. Zummo drove the car to the end of the lot where Patiwana was parked.

Patiwana hung up the phone, walked over to the Lincoln, spoke with Zummo and Spatola, then moved his Mercedes to another place in the lot. He then walked over to Zummo and Spatola, who were in the Lincoln. Zummo, Spatola and Patiwana then took a fifteen-minute ride in the Lincoln around the nearby residential area, retracing the same route several times, after which Zummo and Spatola drove Patiwana to his residence and then returned to the Park East Shopping Center parking lot without him.

When Zummo, Spatola and Patiwana left the lot, at about 5:20 p.m., Tussa and Amato remained in the lot, now sitting in the Fiat -- Tussa in the driver's seat, Amato in the back seat. When Zummo and Spatola returned to the shopping center, Spatola left the Lincoln and headed toward Tussa and Amato in the Fiat. As Spatola approached, Amato shouted something, after which Spatola and Tussa went to a public phone and made a call. After the call, Spatola returned to Zummo's Lincoln and Tussa returned to the Fiat, where Amato still waited.

Shortly thereafter, Zummo and Spatola drove the Lincoln out of the lot, picked up Patiwana, who had walked over from his home and was waiting just outside the lot, and drove away. Shortly after 6:00 p.m., the three men arrived at the building on 67th Avenue in Queens that Vaswani had entered earlier in the day. As Patiwana left the car, he looked up and down the street, and entered the building. Agent McShane noted that Patiwana was not carrying anything in his hands.

Minutes later, Patiwana left the building. As to what happened next, the witnesses' testimony diverges. Agent McShane testified at a suppression hearing and at trial that he saw Patiwana concealing under his coat a white package that McShane thought looked like a white paper bag with white handles. Agent Uniacke, on the other hand, testified at trial that he did not notice a white package under Patiwana's jacket. ...

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