United States v. Podlog

35 F.3d 699, 1994 WL 498468
CourtCourt of Appeals for the Second Circuit
DecidedSeptember 13, 1994
DocketNos. 1506, 1557, 1612 and 1652, Dockets 93-1734, 93-1775, 93-1776 and 93-1777
StatusPublished
Cited by29 cases

This text of 35 F.3d 699 (United States v. Podlog) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Podlog, 35 F.3d 699, 1994 WL 498468 (2d Cir. 1994).

Opinion

MINER, Circuit Judge:

Appellants Calogero Badalamenti, John Romano, Giuseppe Genna and Sergey Mo-gorichev appeal from judgments of conviction and sentence entered on October 21, 1993 (Badalamenti and Mogorichev), November 1, 1993 (Genna) and November 22,1993 (Romano) in the United States District Court for the Southern District of New York (Keenan, /.), following a jury trial, for conspiring to distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. § 846. The district court sentenced Badalamenti to a 135-month term of imprisonment, to be followed by a five-year term of supervised release. Romano received a sentence of seventy-eight months in prison, to be followed by a five-year term of supervised release, while Mogorichev was sentenced to a sixty-three month term of imprisonment, to be followed by a five-year term of supervised release. The district court sentenced Genna' to a 120-month term of imprisonment, to be followed by a five-year term of supervised release.

For the reasons that follow we vacate the sentence imposed upon Genna by the district court, remand for Genna’s resentencing and affirm the judgments in all other respects.

BACKGROUND

In 1991, defendant Yossif Roizis organized a scheme to smuggle heroin into the United States from Poland. In March of that year, Roizis met with defendant Alex Moysif and told him that defendant David Podlog would pay Moysif $10,000 to smuggle two kilograms [702]*702of heroin from Warsaw, Poland into the United States. Later that month, Moysif made two trips to Poland and successfully smuggled approximately two kilograms of heroin into the United States at the conclusion of each trip.

In April of 1991, Moysif and defendant Yefim Kats began to sell heroin in New York City. On April 15,1991, an informant (“Cl”), in the presence of DEA Special Agent Louis Cardinali, contacted Kats and arranged to purchase 230 grams of heroin for $43,700 on the following day. On April 16, Moysif and Kats sold the heroin to the Cl and Agent Cardinali, who was posing as the Cl’s partner. Later that day, Moysif paid Roizis $25,-000 for the heroin.

In the weeks following the April 16 sale, Moysif provided several samples of heroin to Agent Cardinali and the CL On June 10, 1991, while providing Agent Cardinali with one of these samples, Moysif and Agent Car-dinali discussed a possible future purchase of 125 grams of heroin. On June 28, 1991, Agent Cardinali contacted Moysif and inquired further about purchasing 125 grams. The transaction was not consummated until July 3, when Agent Cardinali paid $22,500 to Moysif and Kats for the agreed upon amount of 125 grams. Moysif had obtained the heroin from Podlog in exchange for $16,500.

Also during the summer of 1991, Moysif asked defendant Joseph Forzano whether he knew of anyone who was interested in buying heroin. Forzano told Moysif to contact de-fendantrappellant Calogero Badalamenti, who ran the Caffe Venezia in Brooklyn, New York. In early August of 1991, after receiving several samples of heroin from Moysif, Badalamenti purchased one ounce of heroin for $5,000. Badalamenti also introduced Moysif to defendant-appellant “Joe” Genna and told him that Genna could help him sell heroin. Moysif provided heroin samples to Genna.

On August 14, 1991, Moysif contacted Pod-log and told him that he might need to obtain one-half kilogram of heroin. Podlog informed Moysif that it would cost $50,000 and instructed him to phone and ask for a “catalog” when he needed the heroin. Badalam-enti and Genna met Moysif that evening at the Caffe Venezia and ordered one-half kilogram of heroin. Moysif informed them that the heroin would cost $70,000. The next morning, Moysif contacted Podlog and requested a “catalog.” Later that morning, Podlog gave Moysif the heroin and Moysif told him that he would pay him at a later time. Moysif immediately went to the Caffe Venezia where he met Badalamenti, who took the heroin and told Moysif that he would contact him as soon as he got the money. Later that day, Badalamenti gave a sample of the heroin to Genna. At about 8:00 p.m., Badalamenti informed Moysif that Genna had not gotten back to him about the heroin, but that he was certain that Genna would buy it. Moysif told Badalamenti that Podlog was pressuring him for the money for the heroin. Later that evening, Badalamenti and Genna told Moysif that they knew someone in Queens who would buy the heroin.

The following day, August 16, Badalamenti and Genna drove to an auto-body shop owned by defendant-appellant John Romano, the “someone” referred to by Badalamenti and Genna. Moysif followed in a separate car. Romano told Moysif that he wanted someone to test the heroin and he would then return with the money for the heroin. While Moysif and the others waited, Romano left to make several telephone calls, returning each time to tell Moysif that the customer was not ready yet. After waiting a while longer, Genna, who had been talking with Romano, informed Moysif that Romano had called off the deal. Moysif then took the one-half kilogram and returned to Brooklyn. Later that day, Moysif gave the heroin to Badalamenti and told him he didn’t care what he did with it, but that he needed to receive payment soon.

The next morning, Podlog began to pressure Moysif for the money for the one-half kilogram of heroin. Moysif assured Podlog that he would get his money. After speaking to Genna twice and receiving no definitive answers concerning whether a sale would occur, Moysif contacted Badalamenti that evening and met with him, Genna and Forza-no at the Caffe Venezia. Romano also was contacted, and he reassured Moysif that he [703]*703had a buyer in Long Island who would consummate the deal the following day.

On August 18, 1991, after numerous telephone calls and beeper contacts between Romano and Moysif, it became apparent that Romano’s buyer was not going to consummate the deal. Moysif telephoned Podlog and left a message on his answering machine informing him of the situation. Upon hearing the message, Podlog telephoned Moysif and threatened to kill him by chopping off his head. Moysif immediately contacted Romano and threatened to “hang” Genna and “MU” Badalamenti. That evening, however, Moysif met with Badalamenti, Genna and Romano and reduced the price of the heroin from $70,000 to $50,000 — $40,000 payable immediately and $10,000 due when the heroin was sold. Romano agreed to pay $20,000, and Badalamenti and Genna each agreed to pay $10,000. The next morning, Genna paid Moysif $10,000. Moysif then went to the Caffe Venezia to wait for Romano. When Romano failed to show up, Moysif and others drove to the autobody shop to collect the $20,000 from Romano. When Moysif arrived at the shop, Romano informed him that he was still trying to raise the money, but that he would have it the following day. Moysif displayed a gun to Romano and told him that he was carrying the gun because of Podlog’s threats and that he needed the money soon. The next day, August 20, Romano paid Moy-sif $20,000 and Moysif turned this money over to Podlog.

On August 29, 1991, Agent Cardinali contacted Moysif and inquired about purchasing another 125 grams of heroin. That afternoon, Agent Cardinali and the Cl met with Moysif and defendant Gennady Chernyak-hovsky, at which time Agent Cardinali purchased the heroin from Moysif for $22,500.

The next day, Genna met with Moysif at the Caffe Venezia and told him that he had a potential buyer for either 125 or 400 grams of heroin.

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Bluebook (online)
35 F.3d 699, 1994 WL 498468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-podlog-ca2-1994.