Appeal from the judgments of conviction entered in the United States District Court for the Southern District of New York (Edelstein, J.), for conspiracy to distribute heroin and attempted possession of heroin with intent to distribute, in violation of 21 U.S.C. § 846. Affirmed in part and reversed in part.
Before: MANSFIELD,*fn* PRATT and ALTIMARI, Circuit Judges.
Appellants Richard Delvecchio and Angelo Amen were charged in a two count indictment with conspiracy to process with intent to distribute and to distribute heroin (Count One); and with attempt to possess heroin with intent to distribute (Count Two), in violation of 21 U.S.C. § 846. After a five day jury trial in the United States District Court for the Southern District of New York before Judge David N. Edelstein, both defendants were found guilty on both counts of the indictment. Appellant Delvecchio was sentenced to two six-year terms of imprisonment, to be served concurrently. Appellant Amen was sentenced to two nine-year terms of imprisonment, also to be served concurrently.
We find that the evidence presented at trial was sufficient as a mater of law to sustain the submission of the "attempt" count to the jury. therefore we reverse both appellants' convictions and vacate their sentences on Count Two of the indictment, and direct that count Two be dismissed. We affirm appellants' convictions on Count One, because we conclude that appellants' other claims of error do not justify granting a new trial on the conspiracy count.
This appeal arises out of the Drug Enforcement Administrations ("DEA") investigation and infiltration of a heroin conspiracy which allegedly was run by an individual named Oreste Abbamonte, Jr., appellant Amen's cousin. The conspiracy was alleged to have taken place between April 1982 and July 1983. DEA Special Agent Gerald Franciosa was the government's principal witness at trial.
Franciosa testified that on November 3, 1982, nine kilograms of heroin were seized from Abbamonte and Joseph Delvecchio (the brother of appellant Richard Delvecchio); the two men were subsequently incarcerated. Abbamonte frequently was visited in jail by his cousin. Angelo Amen; Joseph Delvecchio was visited frequently by his brother Richard. On several occasions in April and May of 1983, Angelo Amen and Richard Delvecchio visited Abbamonte together.
Around April 1983, Lorenzo DiChiara, another member of the alleged conspiracy, was released from jail and began to cooperate with the DEA. Shortly after his release, DiChiara received flowers at his home on three occasions. The first bunch contained a note saying, "I miss you. Please call every day. It is important to keep in touch. My love, your friend." The second note read, "Miss you, please call, All my love, your friend." The third note stated, "My friend, how are you? Hope everything is fine. Call me. Your Friend." A handwriting expert testified at trial that the third note was in appellant Delvecchio's handwriting.
Agent Franciosa asked DiChiara to set up a meeting with Delvecchio and Amen for the purpose of initiating a possible drug transaction. In early May 1983, DiChiara told Franciosa that he intended to meet with appellants on May 11. Franciosa conducted surveillance of this May 11 meeting. He testified that he observed first DiChiara's car and then a blue Corvette arrive at the meeting site. Appellant Amen was identified as the driver of the Corvette. Amen got out of the car and walked over to DiChiara who was already standing on the sidewalk. A passenger remained in the Corvette, but Francisco could not see who this passenger was. Amend and DiChiara spoke for about ten minutes; Franciosa did not overhear their conversation.
Following the May 11 meeting, Agent Franciosa developed a plan to sell heroin to Delvecchio and Amen. On the evening of May 17, 1983, Franciosa, DiChiara, and both appellants met at the Old Homestead Restaurant in Manhattan. Franciosa posed as the nephew of a man who had previously supplied heroin to the "Abbamonte organization." By the end of this meeting, Amen and Delvecchio had agreed to purchase five kilograms of heroin from Franciosa and DiChiara at 10:00 p.m. the following evening. The purchase price was to be $195,000 per kilogram to be paid upon receipt of the heroin, and the transaction was to take place at a designated street corner in Manhattan. Amen gave his beeper number to DiChiara and Delvecchio gave his to Franciosa.
The proposed transaction was, however, never consummated. On May 18, 1983, Franciosa and DiChiara arrived at the agreed upon meeting place, accompanied by a large number of agents acting as back up or surveillance personnel. One of these agents had five kilograms of heroin in the trunk of his vehicle.
Franciosa and DiChiara waited about twenty minutes, but appellants did not appear. Franciosa then called the beeper number which Delvecchio had given him and left the number of the phone booth form which he had placed the call. A short time later Delvecchio called back. When asked why he had not shown up, Delvecchio told Franciosa that he was "not comfortable." Amen then got on the line and said that if Franciosa wanted to stay ...