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United States v. Ditommaso

decided: April 20, 1987.


Four consolidated appeals from judgments of the United States District Court for the Eastern District of New York, Thomas C. Platt, Judge, convicting four defendants, after a jury trial, of various counts arising out of an international drug smuggling and money-laundering operation.

Oakes, Cardamone and Davis,*fn* Circuit Judges.

Author: Davis

DAVIS, Circuit Judge:


In late 1981, Antonio Turano, a United States resident, Gaetano Giuffrida, a resident of Italy, and Victoriano Molina-Chacon, a resident of Spain, formed a partnership, ostensibly for the purpose of operating a multinational shoe business. The trio employed Rudolfo Risatti as chief shoe salesman with responsibility for the collection of accounts receivable. From the outset, the joint enterprise suffered from serious financial difficulties and Risatti's claimed adjusted gross income from shoe sales in 1982 was approximately $2000. Although the sale of footwear failed to generate profits for the partnership, the shoe business served as a front for a far more lucrative collaboration: a multi-million dollar heroin importation and distribution ring.

Street sales of heroin netted immense cash profits, typically in dirty and used paper bills of small denominations. In order to transport their gain out of the country undetected, the group instituted a two-step operation. First, by various means, the small denominations were converted to larger denominations (usually $100 bills) so that the money could be more easily concealed when transported. Second, the freshly laundered drug profits were then quietly smuggled out of the country and deposited into foreign bank accounts. Throughout 1982 and the first part of 1983, Sheila Silvetti and Francis DiTommaso assumed active roles in the illegal laundering and international smuggling of the illicit drug profits.*fn2

During the Spring of 1982, Molina-Chacon started his own shoe outlet named Mintor Shoes. Although by this time Risatti had left the employ of Guiffrida and Turano, he continued in his capacity as salesman for Mintor Shoes. In October of that year, federal officials in New York intercepted a shipment of 15 kilograms of heroin from Thailand. This led to the arrest of both Guiffrida and Turano. Ultimately, the charges against Guiffrida were dropped and he returned to Italy. Turano was less fortunate. Following his release on bail*fn3 but prior to facing trial, Turano was killed.

Upon Guiffrida's return to Italy, Italian authorities installed wiretaps on his home and office phones. From early November 1982 through January 1983, authorities intercepted numerous conversations between Guiffrida and Molina-Chacon. Their discussions touched upon a wide variety of business matters ranging from details of particular money-laundering schemes to potential problems created by Turano's arrest. During one conversation, Molina-Chacon emphasized that whenever he was in Spain he relied upon Rudolfo Risatti in New York to keep him informed about the progress of the money laundering activities. Another discussion focussed on Anthony Castelbuono, Sheila Silvetti's paramour and a principal player in the various money laundering and smuggling operations. Because Castelbuono had squandered more than $1,000,000 in drug profits while gambling during a laundering trip to Atlantic City, Molina-Chacon and Guiffrida contemplated whether Castelbuono should be killed.

In January 1983 Molina-Chacon and Guiffrida discussed a shipment of shoes which was being prepared to be sent from Italy to Mintor Shoes, the New York outlet owned by Molina-Chacon. Later that month, Molina-Chacon personally travelled to Florence, Italy, to inspect the shipment. Just before the cargo was scheduled to leave Italy, he returned to the United States. The next day, Italian authorities seized the 160 carton shoe shipment and made several arrests. A thorough search of the goods disclosed a half-kilogram of pure heroin stashed in the middle shoe box in each of the 160 cartons. The total haul, 80 kilograms of pure heroin, was estimated as having a street value in New York of more than $131,000,000. When news of the seizure and arrests reached Molina-Chacon in New York, he fled to Spain with his family, leaving Risatti in charge of the shoe business.

During 1984, in an effort to infiltrate the drug ring, undercover federal Drug Enforcement Administration (DEA) agents, posing as drug dealers interested in obtaining large quantities of heroin, contacted Melania Lopez, the New York-based girlfriend of Molina-Chacon. Lopez eventually agreed to introduce the agents to Molina-Chacon. The agents travelled to Spain, met with Molina-Chacon and discussed the possibility of obtaining large amounts of heroin. In addition, they discussed helping Molina-Chacon to smuggle $20,000,000 in drug profits he claimed to have left behind in the United States. Molina-Chacon told the agents that his connections were Sicilian-based and that there were stockpiles of heroin and a heroin laboratory in the hills of Sicily. He boasted that, at the height of their operation, the organization was importing eighty kilos of pure heroin every fifteen days. Although he acknowledged that shipments ceased temporarily following the Italian drug bust, Molina-Chacon claimed that was the only eight kilo shipment they had ever lost.

For several months, DEA agents recorded their conversations with Molina-Chacon. At one point, Molina-Chacon attempted to solicit the agents' help to collect the $1,000,000 debt Castelbuono owed the drug organization. Various options were considered, including killing both Castelbuono and Silvetti or simply injuring Castelbuono to persuade him to repay the amount.

In March 1985, undercover agents lured Molina-Chacon to Bermuda under the pretext of arranging a meeting with a "banker" who could launder the $20,000,000 cash Molina-Chacon claimed was still in the United States. During a tape-recorded conversation, Molina-Chacon and the DEA agents discussed future drug deals and the smuggling of drug profits from the United States. At the end of the conversation, agents arrested Molina-Chacon. He later waived extradition to the United States to stand trial. Subsequently, Francis DiTommaso, Rudolfo Risatti and Sheila Silvetti were arrested and indicted on various charges stemming from their participation in the drug smuggling and money laundering operations.

The four appellants, Molina-Chacon, Risatti, Silvetti and DiTommaso were tried together before a jury, and convicted.*fn4 We consider their appeals seriatim.

I. Victoriano Molina-Chacon

Following the jury trial, Victoriano Molina-Chacon was convicted of conspiracy to import heroin (in violation of 21 U.S.C. § 952(a) (1970) (amended 1984)) and conspiracy to violate the federal currency reporting requirements (31 U.S.C. §§ 5313 and 5322(b) (1982)). Urging this court to overturn his convictions, Molina-Chacon asserts the following claims of error:

1. Molina-Chacon was denied his right to a speedy trial and therefore the indictment must be dismissed.

2. The court's erroneous "conscious avoidance" charge permitted the jury to convict Molina-Chacon without proof of the requisite conspiracy elements of knowledge and intent.*fn5

3. Evidence of other uncharged conspiracies prejudiced Molina-Chacon, denying him a fair trial.

4. The court erred in forcing Molina-Chacon to be tried on charges other than those contemplated in the extradition proceedings.

5. The use of impermissibly suggestive identification procedures denied Molina-Chacon a fair trial.

6. The sentence imposed upon Molina-Chacon was illegal and suggestive.

For the reasons given infra, we hold these contentions unpersuasive and affirm Molina-Chacon's convictions.

A. Speedy Trial

Molina-Chacon, detained without bail since his arrest on March 3, 1985, was indicted on March 20, 1985. On October 7, 1985, he moved for dismissal of his indictment under the Speedy Trial Act, 18 U.S.C. § 3161 et seq. (1982 ed. and Supp. II). By order dated December 3, 1985, the District Court denied Molina-Chacon's motion and granted a Government motion for an adjournment of the trial date. United States v. Molina-Chacon, 625 F. Supp. 338, 343 (E.D.N.Y. 1985). Trial commenced on February 10, 1986.

The Speedy Trial Act, as amended in 1979 and 1984, requires that a defendant be tried within 70 days of the later of either the filing of an indictment or information, or the first appearance before a judge or magistrate. 18 U.S.C. § 3161 (c)(1); Henderson v. United States, 476 U.S. 321, 106 S. Ct. 1871, 90 L. Ed. 2d 299 (1986). However, in computing the running of this 70-day period, the Act permits certain periods of time to be excluded. The District Court's opinion sets forth four independent grounds for excluding time from Molina-Chacon's speedy trial calculation.*fn6 Although a subsequent Supreme Court decision, Henderson v. United States, 476 U.S. 321, 106 S. Ct. 1871, 90 L. Ed. 2d 299 (1986), reveals that the District Court erred in its calculations, the error was harmless. Guided by Henderson, our own speedy trial calculation follows.

Molina-Chacon first appeared before a magistrate on March 12, 1985. Therefore, in normal circumstances, his later indictment on March 20, 1985 would have triggered the running of his speedy trial clock. 18 U.S.C. § 3161 (c)(1). In fact, under § 3161(h)(7), Molina-Chacon's speedy trial clock would not ordinarily begin to run until May 9, 1985, the date his codefendant, Salvatore Messina, first appeared for arraignment.*fn7 By that time, however, Molina-Chacon had already filed, on April 1, 1985, pre-trial motions requiring hearings. Under § 3161(h)(1)(F) any period of delay caused by any pretrial motion, from the filing of the motion through the conclusion of the hearing, is excluded.*fn8 Henderson, 106 S. Ct. at 1874. In addition, subsection (F) also excludes time after a hearing on a motion but before the district court receives all the submissions by counsel it needs to decide the motion. Id. at 1877. Finally, § 3161(h)(1)(J) permits the exclusion of an additional 30 days once the motion is actually taken "under advisement" by the court. Id. at 1876.

On the facts of this case, it is clear that Molina-Chacon's trial preceded the expiration of the span of his speedy trial "allowance." His final post-hearing brief was due on December 10, 1985. After allowing the district court 30 days to take the motion under advisement, Molina-Chacon's speedy trial clock started to run on January 10, 1986. Exactly one month later, on February 10, 1986, Molina-Chacon's trial began, well before the expiration of the statutorily mandated 70-day period.*fn9

Molina-Chacon argues that under United States v. Cobb, 697 F.2d 38, 44 (2d Cir. 1982), only that time which is "reasonably necessary for a fair processing of the motion[s]" should be excluded from the speedy trial calculations. The decision in Cobb has been eviscerated by Henderson. In Henderson, the Supreme Court, after considering the Cobb opinion, expressly declined to read into subsection (F) a "reasonably necessary" qualification. Henderson, 106 S. Ct. at 1876. To the contrary, the Court specifically held that Congress intended subsection (F) to exclude from the Speedy Trial Act's 70-day limitation all time between the filing of a motion and the conclusion of the hearing on that motion, whether or not a delay in holding that hearing is "reasonably necessary." Id.

We note that the trial court identified two additional, independent grounds for tolling the speedy trial clock. First, on the Government's motion, the court found that the case qualified as a "complex" case under § 3161(h)(8)(B)(ii). United States v. Molina-Chacon, 625 F. Supp. 338 (E.D.N.Y.1985). We agree that this multi-defendant, international drug smuggling and money laundering case was sufficiently complex to warrant excludable time. Not only were hundreds of reels of tapes in Spanish, English and Italian offered into evidence, but witnesses were scattered throughout Switzerland, Italy, Spain, Bermuda, Canada and the United States.

Second, the trial court ruled that under this court's Speedy Trial Guidelines, the Government was entitled to a seven week suspension of the running of the speedy trial clock due to the ill health of the chief prosecutor. We find no abuse of discretion in the trial judge's tolling of the clock to enable new assistant prosecutors to prepare for trial. We pause only to note that such a suspension is equally defensible under § 3161(h)(8)(A) which allows for exclusion of time to satisfy the "ends of justice."*fn10 We add, summarily, that there is nothing of record to support the appellant's charge that there was a plan or plot by the Government to delay the trial.

B. Evidence of Uncharged Conspiracies

Molina-Chacon urges that he was prejudiced by evidence of conspiracies with which he was not charged. In particular, he claims that there were at least four separate conspiracies of which he was not a part: (1) the October 1982 receipt of 15 kilos of heroin by his partners Turano and Guiffrida; (2) the seizure by Italian officials of 80 kilos of heroin destined for his shoe store in January 1983; (3) a conspiracy to launder money; and (4) a conspiracy to supply undercover agents with large quantities of heroin which resulted in his arrest in March 1985.

It is the law of this circuit that a variance between a single conspiracy that has been charged and several conspiracies proved at trial mandates reversal only upon a showing of substantial prejudice. United States v. Cambindo Valencia, 609 F.2d 603, 622 (2d Cir. 1979), cert. denied, 446 U.S. 940, 100 S. Ct. 2163, 64 L. Ed. 2d 795 (1980). Moreover, a proper jury instruction on the possibility of multiple conspiracies can eliminate the likelihood of prejudice. Id.; see also ...

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