United States v. Antonino Aiello, 864 F.2d 257 (2d Cir. 1988). · Go Syfert
United States v. Antonino Aiello, 864 F.2d 257 (2d Cir. 1988). Cases Citing This Book View Copy Cite
130 citation events (78 in the last 25 years) across 31 distinct courts.
Strongest positive: Grant v. Bowers (vaed, 2023-03-06)
Treatment trajectory · 1989 → 2026 · click a year to view as-of
1989 2007 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Grant v. Bowers
E.D. Va. · 2023 · quote attribution · 1 verbatim quote · confidence high
eighth amendment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence.
examined Cited as authority (verbatim quote) Patsalis v. Shinn (3×) also: Cited as authority (rule)
D. Ariz. · 2020 · quote attribution · 1 verbatim quote · confidence high
the district court did not abuse its substantial discretion in choosing 15 an appropriate sentence.
examined Cited as authority (verbatim quote) Leandro Andrade v. Attorney General of the State of California Ernest B. Roe, Warden (4×) also: Cited as authority (rule)
9th Cir. · 2001 · quote attribution · 2 verbatim quotes · confidence high
eighth amendment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence.
discussed Cited as authority (quoted) Kinkel v. Persson
Or. · 2018 · quote attribution · 1 verbatim quote · confidence low
eighth amendment 19 analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence.
cited Cited as authority (rule) State of Arizona v. Martin Raul Soto-Fong
Ariz. · 2020 · confidence medium
A. ¶25 “Eighth Amendment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence.” United States v. Aiello, 864 F.2d 257, 265 (2d Cir. 1988).
cited Cited as authority (rule) State v. Becker
Neb. · 2019 · confidence medium
“Eighth amendment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence.” U.S. v. Aiello, 864 F.2d 257, 265 (2d Cir. 1988).
discussed Cited as authority (rule) McCullough v. State
Md. Ct. Spec. App. · 2017 · confidence medium
As the Supreme Court of Minnesota recently observed in State v. Ali, 895 N.W.2d 237 (Minn. 2017), the O’Neil Court’s dicta has been widely followed by state and federal courts in assessing proportionality challenges under the Eighth Amendment. 31 See Hawkins v. Hargett, 200 F.3d 1279 , 1285 n.5 (10th Cir. 1999) (“The Eighth Amendment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence for multiple crimes.”); 32 United States v. Aiello, 864 F.2d 257, 265 (2d.
discussed Cited as authority (rule) State v. Nathan
Mo. · 2017 · confidence medium
Prior to Graham, if a defendant claimed his or her particular sentence was unduly harsh, and it was not a death penalty case, then “Eighth Amendment analysis foeuse[d] on the sentence imposed for each specific crime, not on the cumulative sentence.” United States v. Aiello, 864 F.2d 257, 265 (2d Cir. 1988). 4 By contrast, Graham explained, in a death penalty case, the Supreme Court traditionally has used what it calls a “categorical approach” under which it determines . whether death is categorically unavailable for a particular category of offense, such as a crime not resulting in a d…
discussed Cited as authority (rule) Willbanks v. Missouri Department of Corrections (2×) also: Cited "see"
Mo. · 2017 · confidence medium
If a defendant claims his or her particular sentence is unduly harsh, “Eighth Amendment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence.” United States v. Aiello, 864 F.2d 257, 265 (2d Cir. 1988).
examined Cited as authority (rule) State v. Ali (3×) also: Cited "see"
Minn. · 2017 · confidence medium
To do so produces the ridiculous consequence of enabling a prisoner, simply by recidivat-ing, to generate a colorable' Eighth Amendment claim.”); Hawkins v. Hargett, 200 F.3d 1279 , 1285 n.5 (10th Cir. 1999) (explaining that the “Eighth Amendment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence”); United States v. Aiello, 864 F.2d 257, 265 (2d Cir. 1988) (same); State v. Berger, 212 Ariz. 473 , 134 P.3d 378, 380, 384 (2006) (affirming a 200-year sentence for multiple acts of child pornography because “[a] defendant has no constitutional r…
cited Cited as authority (rule) United States v. Lumiere
S.D.N.Y. · 2017 · confidence medium
See, e.g., Urlacher, 979 F.2d at 939 (alterations omitted); United States v. Aiello, 864 F.2d 257, 265 (2d Cir. 1988). .
discussed Cited as authority (rule) State v. Gulli
Ariz. Ct. App. · 2017 · confidence medium
However, he “essentially seeks a ruling that this court is not empowered to provide.” State v. McPherson, 228 Ariz. 557, ¶ 13 , 269 P.3d 1181, 1186 (App. 2012). ¶21 As Gulli acknowledges, our supreme court concluded in State v. Berger, 212 Ariz. 473, ¶¶ 25, 51 , 134 P.3d 378, 383, 388 (2006), that the defendant’s twenty consecutive ten-year prison sentences, imposed pursuant to §§ 13-705 and 13-3553(C) for the possession of child pornography, did not violate the Eighth Amendment’s ban on cruel and unusual punishment. 4 The court noted: “Eighth amendment analysis focuses on the …
cited Cited as authority (rule) State v. Coleman
Ariz. Ct. App. · 2016 · confidence medium
Id. at 479, ¶¶ 27-28 (quoting United States v. Aiello, 864 F.2d 257, 265 (2d Cir. 1988), and citing State v. Jonas, 164 Ariz. 242, 249 (1990), then State v. Davis, 206 Ariz. 377, 387, ¶ 47 (2003)).
examined Cited as authority (rule) STATE VS. BOSTON (ANDRE) (3×)
Nev. · 2015 · confidence medium
Instead of applying Graham to an aggregate sentence, one court observed that the proper focus was "on the sentence imposed for each specific crime, not the cumulative sentence." Kasic, 265 P.3d at 415 (quoting United States v. Aiello, 864 F.2d 257, 265 (2d Cir. 1988)).
discussed Cited as authority (rule) STATE VS. BOSTON (ANDRE)
Nev. · 2015 · confidence medium
Instead of applying Graham to an aggregate sentence, one court observed that the proper focus was "on the sentence imposed for each specific crime, not the cumulative sentence." Kasic, 265 P.3d at 415 (quoting United States v. Aiello, 864 F.2d 257, 265 (2d Cir. 1988)).
cited Cited as authority (rule) United States v. Davis
2d Cir. · 2015 · confidence medium
See 21 U.S.C. §§ 952 (a), 960(b)(2)(B)(ii); United States v. Aiello, 864 F.2d 257, 262-63 (2d Cir.1988) (discussing requirements for conviction under aiding and abetting theory).
discussed Cited as authority (rule) United States v. Borrero
2d Cir. · 2015 · confidence medium
Under Evidence Rule 701, opinion testimony of a lay witness is admissible when it is “(a) rationally based on the witness’s perception; (b) helpful to clearly *24 understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Moral’s testimony was rationally based on his association with the Camacho brothers, and the testimony assisted the jury in understanding ambiguous or slang terms such as “wild boy,” and “get[ting] busy,” and also Camacho’s vague assertio…
discussed Cited as authority (rule) United States v. Ghavami
S.D.N.Y. · 2014 · confidence medium
In Yannotti , the Second Circuit similarly found that a coconspirator’s testimony about a “cryptic” recorded conversation was helpful to the jury, “because the ‘language on the tape [was] ... punctuated with ambiguous references to events that are clear only to the conversants.’ ” 541 F.3d at 126 (quoting United States v. Aiello, 864 F.2d 257, 265 (2d Cir.1988)). d.
discussed Cited as authority (rule) State of Arizona v. Mark Noriki Kasic
Ariz. Ct. App. · 2011 · confidence medium
The proper analysis “focuses on the sentence imposed for each specific crime, not the cumulative sentence.” United States v. Aiello, 864 F.2d 257, 265 (2d Cir.1988). “[I]f a sentence for a particular offense is not disproportionately long, it does not become so merely because it is consecutive to another sentence for a separate offense or because the consecutive sentences are lengthy in aggregate.” Berger, 212 Ariz. 473, ¶ 28 , 134 P.3d at 384 .
cited Cited as authority (rule) United States v. Vanhoesen
N.D.N.Y. · 2008 · confidence medium
United States v. Torres, 901 F.2d 205, 221 (2nd Cir.1990), cert. denied, 498 U.S. 906 , 111 S.Ct. 273 , 112 L.Ed.2d 229 *453 (1990); United States v. Aiello, 864 F.2d 257, 263 (2d Cir.1988).
discussed Cited as authority (rule) United States v. Yannotti
2d Cir. · 2008 · confidence medium
Given its discretion in such matters, the district court did not err in allowing DiDonato to provide interpretative testimony because the “language on the tape [was] ... punctuated with ambiguous references to events that are clear only to the conversants.” United States v. Aiello, 864 F.2d 257, 265 (2d Cir.1988) (internal quotation marks and alterations omitted).
discussed Cited as authority (rule) People v. Martinez
Colo. Ct. App. · 2007 · signal: cf. · confidence medium
Cf. Close v. People, 48 P.3d 528, 539 (Colo.2002) (Eighth Amendment analysis for proportionality review purposes focuses on “the sentence imposed for each specific crime, not on the cumulative sentence” (quoting United States v. Aiello, 864 F.2d 257, 265 (2d Cir.1988))); People v. Cabral, 878 P.2d 1 (Colo.App.1993).
discussed Cited as authority (rule) State v. Buchhold
S.D. · 2007 · confidence medium
In United States v. Aiello, 864 F.2d 257, 265 (2dCir.1988), the court also took notice of the reasoning from O’Neil , holding that a proportionality analysis did not apply to a defendant’s life sentence without parole plus 140 consecutive years because the analysis properly focuses on the sentence applied for each specific crime and not cumulative sentencing.
discussed Cited as authority (rule) Wahleithner v. Thompson
Wash. Ct. App. · 2006 · confidence medium
To do so produces the ridiculous consequence of enabling a prisoner, simply by recidivating, to generate a colorable Eighth Amendment claim.”); United States v. Aiello, 864 F.2d 257, 265 (2d Cir. 1988) (proportionality analysis focuses on sentence imposed for each specific crime, not on cumulative sentence); United States v. Schell, 692 F.2d 672, 675 (10th Cir. 1982) (observing that under this argument, virtually any sentence becomes cruel punishment if defendant is already serving lengthy sentences for prior convictions).
discussed Cited as authority (rule) Wahleithner v. Thompson
Wash. Ct. App. · 2006 · confidence medium
To do so produces the ridiculous consequence of enabling a prisoner, simply by recidivating, to generate a colorable Eighth Amendment claim."); United States v. Aiello, 864 F.2d 257, 265 (2d Cir. N.Y.1988) (proportionality analysis focuses on sentence imposed for each specific crime, not on cumulative sentence); United States v. Schell, 692 F.2d 672, 675 (10th Cir.Kan. 1982) (observing that under this argument, virtually any sentence becomes cruel punishment if defendant is already serving lengthy sentences for prior convictions).
discussed Cited as authority (rule) United States v. Mullen
W.D.N.Y. · 2006 · confidence medium
Flaharty, supra, at 197 (citing Richardson, supra, at 824 , 119 S.Ct. 1707 ) and United States v. Aiello, 864 F.2d 257, 264 (2d Cir.1988) (requiring at least three felonies to meet “series of violations” element of ,§ 848(c)).
discussed Cited as authority (rule) State v. Berger (2×)
Ariz. · 2006 · confidence medium
Accordingly, as a general rule, this court "will not consider the imposition of consecutive sentences in a proportionality inquiry...." Davis, 206 Ariz. at 387, ¶ 47 , 79 P.3d at 74 . [3] ¶ 28 "Eighth amendment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence." United States v. Aiello, 864 F.2d 257, 265 (2d Cir.1988).
discussed Cited as authority (rule) United States v. Manuel Gunn
11th Cir. · 2004 · confidence medium
See United States v. Hernandez, 995 F.2d 307, 313 (1st Cir.1993) (upholding defendant’s § 922(g)(1) conviction because jury could reasonably infer that defendant, as the conspiracy leader, controlled his co-conspirators and their firearms); United States v. Aiello, 864 F.2d 257, 263 (2d Cir.1988) (stating that a jury could reasonable infer defendant’s constructive possession of drugs in part because defendant “instituted and controlled the drug activity”).
cited Cited as authority (rule) Walker v. United States
N.D.N.Y. · 2004 · confidence medium
United States v. Aiello, 864 F.2d 257, 264 (2d Cir.1988), cert. denied, 525 U.S. 932, 119 S.Ct. 342 , 142 L.Ed.2d 282 (1998).
discussed Cited as authority (rule) Jones v. United States
D. Conn. · 2003 · confidence medium
The Second Circuit has specifically held that “a drug felony violation based upon aiding and abetting may qualify as a ‘series’ predicate where, as here, the aider and abettor is a kingpin.” United States v. Aiello, 864 F.2d 257, 264 (2d Cir.1988), accord United States v. Riddick, 156 F.3d 505, 512 (3d Cir.1998); United States v. Jelinek, 57 F.3d 655, 659 (8th Cir.1995).
cited Cited as authority (rule) Hines v. United States
2d Cir. · 2003 · confidence medium
United States v. Aiello, 864 F.2d 257, 264 (2d Cir.1988) (citing United States v. Young, 745 F.2d 733, 747 (2d Cir.1984)).
discussed Cited as authority (rule) United States v. Joyner
2d Cir. · 2002 · signal: cf. · confidence medium
See United States v. Valenzuela, 225 F.3d 665 , 2000 WL 733603 , at *1 (9th Cir. June 7, 2000) (unpublished opinion); United States v. Riddick, 156 F.3d 505, 512 (3d Cir.1998); United States v. Jelinek, 57 F.3d 655, 659 (8th Cir.1995); United States v. Baker, 10 F.3d 1374 , 1408 n. 16 (9th Cir.1993), overruled on other grounds by United States v. Nordby, 225 F.3d 1053, 1059 (9th Cir.2000); cf United States v. Aiello, 864 F.2d 257, 264 (2d Cir.1988) (holding that aiding and abetting drug felony violations may qualify as a predicate offense where the defendant is a kingpin).
discussed Cited as authority (rule) United States v. Joyner
2d Cir. · 2002 · signal: cf. · confidence medium
See United States v. Valenzuela, 225 F.3d 665 , 2000 WL 733603 , at *1 (9th Cir. June 7, 2000) (unpublished opinion); United States v. Riddick, 156 F.3d 505, 512 (3d Cir.1998); United States v. Jelinek, 57 F.3d 655, 659 (8th Cir.1995); United States v. Baker, 10 F.3d 1374 , 1408 n. 16 (9th Cir.1993), overruled on other grounds by United States v. Nordby, 225 F.3d 1053, 1059 (9th Cir.2000); cf. United States v. Aiello, 864 F.2d 257, 264 (2d Cir.1988) (holding that aiding and abetting drug felony violations may qualify as a predicate offense where the defendant is a kingpin). 23 Since it was pro…
discussed Cited as authority (rule) United States v. Carlos Garcia
2d Cir. · 2002 · confidence medium
On the surface, the conversation is not “confusing and disjointed,” Urlacher, 979 F.2d at 939 , it does not involve unusually short or cryptic statements for a casual phone conversation, and it does not contain “sharp and abbreviated” language, “unfinished sentences,” or “ambiguous references,” United States v. Aiello, 864 F.2d 257, 265 (2d Cir.1988) (internal quotations omitted).
discussed Cited as authority (rule) Alex Pearson v. Anthony Ramos (2×)
7th Cir. · 2001 · confidence medium
The mere fact that cumulative punishments may be imposed for distinct offenses in the same prosecution is not material upon this question." State v. Four Jugs of Intoxicating Liquor, 2 Atl. 586 , 593 (Vt. 1886), quoted in O'Neil v. Vermont, 144 U.S. 323, 331 (1892) (emphasis in original); see also Hawkins v. Hargett, 200 F.3d 1279 , 1285 n. 5 (10th Cir. 1999); United States v. Aiello, 864 F.2d 257, 265 (2d Cir. 1988).
discussed Cited as authority (rule) Pearson, Alex v. Ramos, Anthony
7th Cir. · 2001 · confidence medium
The mere fact that cumulative punishments may be imposed for distinct offenses in the same prosecution is not material upon this question." State v. Four Jugs of Intoxicating Liquor, 2 Atl. 586 , 593 (Vt. 1886), quoted in O’Neil v. Vermont, 144 U.S. 323, 331 (1892) (emphasis in original); see also Hawkins v. Hargett, 200 F.3d 1279 , 1285 n. 5 (10th Cir. 1999); United States v. Aiello, 864 F.2d 257, 265 (2d Cir. 1988).
discussed Cited as authority (rule) Salcedo v. Artuz (2×) also: Cited "see"
S.D.N.Y. · 2000 · confidence medium
The Second Circuit has stated that an “‘[E]ighth [A]mendment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence.’ ” Id. (quoting United States v. Aiello, 864 F.2d 257, 265 (2d Cir.1988)).
discussed Cited as authority (rule) United States v. Joyner
2d Cir. · 2000 · confidence medium
However, in response to the jury’s request that the court clarify aiding and abetting liability, the court explained that while a defendant could be found guilty of committing a predicate CCE felony based on an aider and abettor theory, he could not be convicted of a CCE simply for aiding and abetting a “kingpin.” This was a correct statement of the law, see United States v. Aiello, 864 F.2d 257, 264 (2d Cir.1988), and we must presume that the jury followed the court’s instructions.
discussed Cited as authority (rule) United States v. Archie Joyner
2d Cir. · 2000 · confidence medium
However, in response to the jury's request that the court clarify aiding and abetting liability, the court explained that while a defendant could be found guilty of committing a predicate CCE felony based on an aider and abettor theory, he could not be convicted of a CCE simply for aiding and abetting a "kingpin." This was a correct statement of the law, see United States v. Aiello, 864 F.2d 257, 264 (2d Cir. 1988), and we must presume that the jury followed the court's instructions.
discussed Cited as authority (rule) United States v. Eusebio Escobar-De Jesus
1st Cir. · 1999 · confidence medium
Further, there is no requirement that the five individuals be shown to have acted in concert or contemporaneously, see David, 940 F.2d at 731 (citing United States v. Tarvers, 833 F.2d 1068, 1075 (1st Cir.1987)), nor must the jurors agree on the particular identities of the henchmen, see id. (citing United States v. Aiello, 864 F.2d 257, 264 (2d Cir.1988); United States v. Lueth, 807 F.2d 719, 731 (8th Cir.1986)).
discussed Cited as authority (rule) United States v. DeJesus
1st Cir. · 1999 · confidence medium
Further, there is no requirement that the five individuals be shown to have acted in concert or contemporaneously, see David, 940 F.2d at 731 (citing United States v. Tarvers, 833 F.2d 1068, 1075 (1st Cir. 1987)), nor must the jurors agree on the particular identities of the henchmen, see id. (citing United States v. Aiello, 864 F.2d 257, 264 (2d Cir. 1988); United States v. Lueth, 807 F.2d 719, 731 (8th Cir. 1986)).
cited Cited as authority (rule) United States v. Walker
N.D.N.Y. · 1996 · confidence medium
United States v. Aiello, 864 F.2d 257, 263 (2d Cir.1988).
discussed Cited as authority (rule) United States v. Keith Alan Robinson
9th Cir. · 1995 · confidence medium
See Deal v. United States, 113 S.Ct. 1993, 1999 (1993) (upholding 105-year sentence based in part on convictions under section 924(c)); United States v. Aiello, 864 F.2d 257, 265 (2nd Cir.1988) ("Eighth Amendment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence."). 9 AFFIRMED. * The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed.R.App.P. 34(a) ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 3…
discussed Cited as authority (rule) United States v. Steven Eugene Jelinek
8th Cir. · 1995 · confidence medium
Compare United States v. Amen, 831 F.2d 373, 381-82 (2d Cir.1987) (defendant cannot incur CCE liability for aiding and abetting kingpin), cert. denied, 485 U.S. 1021 , 108 S.Ct. 1573 , 99 L.Ed.2d 889 (1988); United States v. Benevento, 836 F.2d 60, 71 (2d Cir.1987) (same), cert. denied, 486 U.S. 1043 , 108 S.Ct. 2035 , 100 L.Ed.2d 620 (1988); United States v. Aiello, 864 F.2d 257, 264 (2d Cir.1988) (same) with United States v. Pino-Perez, 870 F.2d 1230, 1233-34 (7th Cir.) (en banc) (defendant may incur CCE liability for aiding and abetting kingpin), cert. denied, 493 U.S. 901 , 110 S.Ct. 260 ,…
discussed Cited as authority (rule) United States v. John Scotti, United States of America v. Robert Rodriguez (2×)
2d Cir. · 1995 · confidence medium
Moreover, a secondary participant in an extortion, as Rodriguez is accused of being, might be likened to an aider and abettor, and the well-settled rule is that the government must prove that an accused aider and abettor had “the specific intent that his act or omission bring about the underlying crime.” United States v. Aiello, 864 F.2d 257, 262-63 (2d Cir.1988).
discussed Cited as authority (rule) United States v. Edward Lee Baker, AKA \Eddie\"
unknown court · 1993 · confidence medium
Miskinis, 966 F.2d at 1268 ; United States v. Aiello, 864 F.2d 257, 264 (2d Cir.1988) 17 The requisite five or more persons need not act in concert with each other, nor need they be involved with the organizer at the same time.
cited Cited as authority (rule) United States v. Baker
unknown court · 1993 · confidence medium
Miskinis, 966 F.2d at 1268 ; United States v. Aiello, 864 F.2d 257, 264 (2d Cir.1988). .
discussed Cited as authority (rule) United States v. Manuel Antonio Ogando, Anastasio Pineda Ogando, Also Known as Anibal, Also Known as Matuti and Bienvenido Castillo
2d Cir. · 1992 · confidence medium
DISCUSSION To convict a defendant of engaging in a CCE, the Government must establish “(1) that he committed a Title 21 drug felony violation, (2) that is part of a continuing series of Title 21 drug violations, (3) which are undertaken by such person in concert with five or more other persons, (4) with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and (5) from which such person obtains substantial income or resources.” United States v. Aiello, 864 F.2d 257, 263-64 (2d Cir.1988); see 21 U.S.C. § 848 (c) (1988).
discussed Cited as authority (rule) United States v. Robert J. Miskinis
9th Cir. · 1992 · confidence medium
United States v. Aiello, 864 F.2d 257, 264 (2d Cir.1988) (“We do not read our earlier opinions to shield kingpins from [continuing criminal enterprise] liability solely because they are convicted as aiders and abettors rather than as principals with regard to the predicate crimes.”).
discussed Cited as authority (rule) United States v. Michael John Canino, James Gilbert Marcum, John G. Flynn, and David Leonard Malkin
7th Cir. · 1992 · confidence medium
Several courts, including this one, have held that the government need not list the predicate acts in the indictment: Baker, 905 F.2d at 1103 (jury not limited to crimes charged in the indictments); United States v. Markowski, 772 F.2d 358, 361-62 (7th Cir.1985); United States v. Aiello, 864 F.2d 257, 265 (2d Cir.1988).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Antonino AIELLO, Defendant-Appellant
98, Docket 88-1113.
Court of Appeals for the Second Circuit.
Dec 23, 1988.
864 F.2d 257
1988 U.S. App. LEXIS 17796
1988 WL 138436
Martin G. Weinberg, Boston, Mass. (Lillian A. Wilmore, Oteri, Weinberg & Lawson, Boston, Mass., Kimberly Homan, Zalkind, Sheketoff, Homan, Rodriguez & Lunt, Boston, Mass., of counsel), for defendant-appellant., Andrew C. McCarthy, Asst. U.S. Atty. (Rudolph W. Giuliani, Ú.S. Atty., S.D.N.Y., New York City, Kerri L. Martin, Asst. U.S. Atty., of counsel), for appellee.
Oakes, Miner, Altimari.
Cited by 127 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 61%
Citer courts: Oregon Supreme Court (1)
MINER, Circuit Judge:

Defendant-appellant Antonino Aiello (“Tony” or “Aiello”) was convicted, after a jury trial, of conspiring to distribute and possess with intent to distribute heroin and cocaine, in violation of 21 U.S.C. § 846 (1982) (Count 1); distributing and possessing with intent to distribute heroin and cocaine, in violation of 21 U.S.C. §§ 812 (1982 & Supp. III 1985), 841(a)(1) & (b)(1)(A) (1982 & Supp. III 1985) and 18 U.S.C. § 2 (1982) (Counts 2-9, 12); and operating a continuing criminal enterprise (“CCE”) for the distribution of narcotics, in violation of 21 U.S.C. § 848 (1982 & Supp. IV 1986) (Count 15).

Aiello appeals from all counts except Counts 1 and 6 of his judgment of conviction. He challenges the sufficiency of the evidence as to the distribution and possession counts and the CCE count. We reject his contention and hold that an aiding and abetting offense may serve as a predicate for the continuing criminal enterprise statute, so long as the aider and abettor is a “kingpin.” Aiello also challenges: the district court’s instruction that, for purposes of the “continuing series” element of the CCE statute, the jury could consider any violation of the narcotics laws, even a violation not charged in the indictment; the admission into evidence of an undercover agent’s interpretation of a co-conspirator’s statement; and the severity of his sentence. These remaining contentions also are rejected and the judgment of the district court is affirmed.

[*260] BACKGROUND

Because Aiello challenges the sufficiency of the evidence, it is necessary to recount the facts at some length. In October 1977, Aiello opened a pizzeria (“Tony’s Pizza” or “Tony’s”) at 164 West 125th Street in Harlem where, over the course of seven years, he ran a heroin and cocaine distribution network. In early 1978, Lawrence “Big Al” Robinson, a street-level dealer who eventually cooperated with and testified for the government, met Aiello at the pizzeria. Robinson was told by the assistant manager that Robinson needed drugs to sell, Aiello could provide “top-notch drugs.” Aiello thereafter made Robinson a sales agent. For five years, Robinson brought drug customers to Aiello’s restaurant in exchange for a percentage of the sales made to those customers.

At times, Aiello was involved personally in the drug dealings. On at least one occasion, at the urging of Robinson, he met with an aggrieved buyer to settle a dispute. However, he generally left the day-to-day operation to others. In 1978, Rosetta Palmer was hired, ostensibly as a waitress and cook, but in reality to facilitate drug transactions. Giuseppe Giusto, known as “Joey,” soon became Aiello’s lieutenant, and ran the drug business at the restaurant. Robinson testified that Aiello’s brother-in-law, Filippo Gambina, accompanied Giusto each day to Tony's Pizza and assisted Giusto in the distribution of cocaine and heroin from the rear kitchen area of the pizzeria. He also testified that he once received a package of heroin from Giusto and Dominick DiGangi, who also worked for Aiello and delivered heroin with Giusto. There also was evidence that, at least in the later stages of the enterprise, Aiello’s father, Vito, and sister, Jane, engaged in various drug-related activities for the distribution network.

On June 30, 1983, Robinson was arrested for selling one-quarter ounce of heroin. He thereafter cooperated with the New York Drug Enforcement Task Force by providing information about Aiello’s drug enterprise and by assisting an undercover agent, Detective Richard Ford, in purchasing drugs from the enterprise.

On July 21, 1983, Ford purchased an ounce of heroin from Palmer at the pizzeria (Count 2). According to Ford, Palmer nodded to the kitchen area, referred to “another customer” and stated, “[m]y people are back there now.” Approximately ten minutes after Ford left, Giusto and DiGangi were seen leaving Tony’s.

Ford returned to the pizzeria on August 16, 1983 and again sought to purchase one ounce of heroin. Palmer stated, “He only left half of what you got before. Do you want it?” Ford purchased the one-half ounce (Count 3).

On August 18, 1983, Palmer introduced Ford to Giusto and Gambina when Ford bought an ounce of heroin at Tony’s. Although Ford did not have enough money for the ounce, Giusto allowed Palmer to give him the entire ounce for partial payment, with the understanding that Ford would pay the remainder later (Count 4).

Upon his return to the pizzeria on October 13th, Ford argued with Giusto about the quality of his last purchase and agreed to buy yet another ounce of heroin. (He also paid Giusto the money that he owed from the August 18th transaction.) Because Giusto had “another customer waiting outside,” however, Ford had to come back later that day to pick up his ounce from Palmer (Count 5).

On December 14, 1983, Ford called Palmer at the pizzeria to obtain the telephone number for Aiello’s cafe in Queens (“Caffe Aiello”) so that he could call Giusto about purchasing one-eighth kilogram of heroin. Palmer had the number but informed Ford that Giusto made it clear that the cafe was not to be called under any circumstances. Ford went to the pizzeria, whereupon Gius-to called and told Ford to leave the money there with Palmer. Ford instead waited for Giusto to arrive. At approximately 5:00 p.m., Giusto appeared in a car with Aiello. After speaking briefly with Ford, Giusto instructed Raymond Boyd, a longtime worker at the pizzeria, as follows: “Go across the street. Tony [Aiello] is in the car. Get the package_” Boyd did[*261] so and, once inside the restaurant, handed the package to Giusto, who in turn passed it on to Ford in exchange for $30,000 (Count 6). Aiello does not appeal his conviction on Count 6.

On the morning of March 6, 1984, Aiello and Giusto met in Caffe Aiello for approximately one hour. That evening, Ford contacted Giusto about purchasing another one-eighth kilogram of heroin, and the two agreed to meet at the pizzeria. Giusto rode with Gambina to Vito Aiello’s home, where he picked up a brown paper bag, and then went to Tony’s Pizza. At the pizzeria, Ford overheard Giusto tell Palmer, “Phillip [Gambina] is in the car holding the bag.” They sent Boyd out to the car to get the bag; Gambina returned with Boyd to the restaurant. Gambina gave the package to Giusto, who then gave it to Palmer with instructions to go to the basement and to take from it an eighth of a kilogram for Ford. Ford then paid Giusto $30,000 for the heroin (Count 7). After Ford left the pizzeria, Giusto and Gambina drove directly to Caffe Aiello, which they entered after securing the money in their car trunk.

On May 9, 1984, Ford went to the cafe and attempted, unsuccessfully, to deal directly with Aiello. Ford first asked for Gambina, but was told he was out and would be back shortly. Minutes after Ford left, Aiello and Gambina milled about and peered through the glass front doors, looking up and down the street. Later, Ford drove back to the cafe. As Ford began to park, Aiello looked in Ford’s direction and spoke into the ear of Gambina, who was seated with him at a table near a window. Immediately, Gambina rose, exited the cafe and walked toward Ford, while looking back at Aiello. Ford requested to buy heroin, but Gambina responded, “Can’t do it now. The police are on the street.” The events at the cafe that day were videotaped and played for the jury.

Giusto spoke by telephone with Ford, who was at Tony’s Pizza, on May 15, 1984. Giusto offered to sell Ford another eighth of a kilogram of heroin, which Giusto had left at the pizzeria, but Ford declined (Count 8).

On June 18, 1984, while two men stood guard looking up and down the street, Gambina was observed removing two “heavy” white pillowcases from Caffe Aiel-lo; Gambina later unloaded them at Tony Aiello’s house. Later that day, Ford spoke with Giusto and indicated that he wished to purchase one-eighth kilogram of heroin. They agreed to meet outside a motel near LaGuardia airport. Ford met Giusto as planned, gave him $30,000, and agreed to meet at Tony’s Pizza within the hour to pick up the heroin. Although Giusto never appeared at the pizzeria, Ford was given the heroin by Palmer, who indicated that Giusto had just left (Count 9).

Ford returned again to the pizzeria on October 30, 1984 and told Palmer that the heroin previously received was of poor quality and that he would confront Aiello himself if the problem continued. That evening, Ford purchased a large quantity of heroin from Giusto and Gambina; the latter two then drove directly to Caffe Aiel-lo and met with Aiello. [1] On November 5, 1984, Ford, accompanied by another undercover agent, told Palmer that they were on their way to Caffe Aiello to confront “Tony” about the poor quality of the heroin. As soon as they had departed, Palmer called the cafe and, within minutes, Aiello left the cafe.

On November 7, 1984, Ford arranged to meet Giusto at the Marriott Hotel near LaGuardia airport. Prior to that meeting, Giusto and Gambina delivered a rolled-up shopping bag to Palmer, who then sold, from the pizzeria, various amounts of cocaine to three purchasers (Count 12). The buyers immediately were arrested, and the police found on them, in addition to the drugs, a scrap of paper with telephone numbers for Tony’s Pizza, Giusto’s residence and Caffe Aiello. When Ford and Giusto later met at the hotel, Giusto acknowledged that “Tony” was his boss in the drug business, that all the heroin purchased by Ford had been Tony’s, and that,[*262] while Giusto was a “general” in the operation, Aiello was the “president.”

On November 14, 1984, a number of individuals involved in Aiello’s drug enterprise were arrested and several places, including the pizzeria, the cafe and various residences, were searched. The search revealed an assortment of evidence, including (1) records of drug sales and large quantities of heroin from Giusto’s residence; (2) $898,127 (most of which was covered by “Tony’s Pizza” T-shirts) from Vito Aiello’s residence; of that amount, $30,000 was traced to an October 10, 1984 drug sale; and (3) a narcotics ledger book, $105,000 in currency, $370,805 in jewelry and a variety of weapons from Tony Aiello’s residence.

Aiello avoided arrest and lived as a fugitive for approximately two years. On November 13,1986, following a high-speed car chase, Aiello was arrested. There is evidence of Aiello’s lavish lifestyle before and after becoming a fugitive. There also is evidence that, with few exceptions, Aiello kept all of his property in the names of others and regularly used cash and third-party checks, almost always in amounts less than $10,000, so as to avoid filing currency transaction reports. See 31 U.S. C. §§ 5311-5313 (1982 & Supp. IV 1986).

Detective Ford’s testimony included an interpretation of one of Giusto’s statements made during their November 7, 1984 meeting. The comment he interpreted, “I don’t know about this other thing,” came in response to the query as to whose drugs were better, “this other” or “Tony’s.” Ford testified that he understood the response to mean “[t]hat there was no other thing, everything I bought came from the same place or source.”

During its final instructions to the jury, the court charged that Aiello might be found guilty of the distribution and possession counts under a theory of aiding and abetting, “that is, if he aids or abets another to commit an offense, he is just as guilty of the crime as the person who commits it directly.” The court also undertook an explanation of the “continuing series of violations” element of the CCE count. As part of that instruction, the court charged the jury that it could rely on violations “found in acts not even mentioned in the indictment at all, as long as Aiello had the intent to violate the narcotics laws when he committed these acts.”

On March 18, 1988, following his conviction, Aiello was sentenced to 15 years imprisonment, a $25,000 fine and lifetime special parole terms on Counts 2-9; 20 years imprisonment, a $250,000 fine and a lifetime special parole term on Count 12; and life imprisonment without parole and a $100,000 fine on Count 15. The sentences all run consecutively.

On appeal, Aiello challenges the sufficiency of the evidence supporting the distribution and possession counts and the CCE count. He also challenges (1) the district court's instruction allowing the jury to consider, for the CCE predicates, acts not found in the indictment, (2) the admission into evidence of the undercover agent’s testimony interpreting a co-conspirator’s statement, and (3) the excessiveness of the sentence. For the reasons that follow, we affirm the judgment of the district court.

DISCUSSION

1. Sufficiency of the Evidence

A. The Distribution and Possession Counts

Aiello asserts that none of the counts raised in this appeal show that he “participated in those particular transactions, either as a principal or as an aider and abettor.” Rather, Aiello urges that the evidence, at most, suggests that he withdrew from the enterprise, “leaving Giusto on his own with Gambina as the supplier.” This argument is unpersuasive.

To convict a defendant under a theory of aiding and abetting the commission of a crime (Counts 2-5, 7, 9 and 12), [2] the government must prove: “(1) [the] commis[*263] sion of the underlying crime, (2) by a person other than the defendant, (8) a voluntary act or omission by the person charged as an aider and abettor, with (4) the specific intent that his act or omission bring about the underlying crime,” United States v. Wiley, 846 F.2d 150, 154 (2d Cir.1988) (quoting United States v. Zambrano, 776 F.2d 1091, 1097 (2d Cir.1985)). To prove the third and fourth elements, however, the evidence need only “demonstrate that the person charged joined the venture, shared in it, and that his efforts contributed towards i;-« success,” id.; see also United States v. Perry, 643 F.2d 38, 46 (2d Cir.), cert. denied, 454 U.S. 835, 102 S.Ct. 138, 70 L.Ed.2d 115 (1981). Whereas the evidence here may not have shown that Aiello “participated in every phase of the criminal venture,” United States v. Ciambrone, 787 F.2d 799, 809 (2d Cir.) (quoting United States v. Diecidue, 603 F.2d 535, 557 (5th Cir.1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781 (1980)), cert. denied, 479 U.S. 1017, 107 S.Ct. 668, 93 L.Ed.2d 720 (1986), or that he was “the supplier on each and every one of the occasions charged,” Aiello Br. at 30, it certainly was sufficient, when viewed “in the light most favorable to the government,” United States v. Martino, 759 F.2d 998, 1002 (2d Cir.1985); see Wiley, 846 F.2d at 153, to support his convictions based on aiding and abetting.

Indeed, there is extensive evidence of Aiello’s participation in the operation. Aiello owned the locations out of which the drug contacts and sales were made. In earlier years he handled the drug dealings himself and would help settle disputes concerning the transactions. Giusto, who was involved directly in all the charged sales (save possibly for the sale charged in Count 3), admitted to Ford that Aiello was his boss and that the drugs were and would be “Tony’s.” Giusto and Gambina often conferred with Aiello, and immediately after the drug sales on March 6, 1984 and October 30, 1984, drove directly to Caffe Aiello, where on the latter date they met with Aiello. Further, there is no indication in the record that Palmer denied Aiello’s involvement when told by Ford on October 30, 1984 and November 5, 1984 that he would contact Aiello directly. In fact, Palmer called the cafe on October 30th, presumably to warn Aiello. Thus, while the evidence may not suggest that Aiello participated directly in each possession and distribution violation subject of his appeal, certainly “any rational trier of fact could have found the essential elements of the crime” beyond a reasonable doubt, Wiley, 846 F.2d at 153 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original)).

Under a theory of constructive possession, Aiello’s conviction on Count 8, the unconsummated sale, also is supported by “substantial evidence,” id. (quoting Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942)). Aiello owned the pizzeria, was in charge of the workers, and instituted and controlled the drug activity. Because “[cjonstructive possession exists when a person ... knowingly has the power and the intention at a given time to exercise dominion and control over an object,” which “may be proved by direct or circumstantial evidence,” United States v. Tribunella, 749 F.2d 104, 111-12 (2d Cir.1984) (quoting United States v. Craven, 478 F.2d 1329, 1333 (6th Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 54, 38 L.Ed.2d 85 (1973)), the jury properly found Aiello guilty on this count.

B. The Continuing Criminal Enterprise

There also was substantial evidence to support Aiello’s conviction under the continuing criminal enterprise statute, 21 U.S.C. § 848. Described as the kingpin statute, see United States v. Young, 745 F.2d 733, 751 (2d Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985), section 848 targets the ringleaders of large-scale narcotics operations, United States v. Amen, 831 F.2d 373, 381 (2d Cir.), cert. denied, — U.S. —, 108 S.Ct. 1573, 99 L.Ed.2d 889 (1988).

To convict a defendant of engaging in a CCE, the government must prove (1)[*264] that he committed a Title 21 drug felony violation, (2) that is part of a continuing series of Title 21 drug violations, (3) which are undertaken by such person in concert with five or more other persons, (4) with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and (5) from which such person obtains substantial income or resources. See Young, 745 F.2d at 746-47; 21 U.S.C. § 848(b) (1982) (recodified at 21 U.S.C. § 848(d) (Supp. IV 1986)). At least three drug felony violations are required to establish a “series.” Young, 745 F.2d at 747. The government need not plead or obtain convictions on any of the eligible predicate offenses, “but may instead simply prove at trial the continuing series of offenses.” Id.

Aiello contends principally that the three felony predicates required for a “series” have not been established. He apparently concedes that the violation proved under Count 6 constitutes one predicate offense. Despite his assertion to the contrary, the conspiracy charged under 21 U.S. C. § 846 qualifies as a second predicate, see Young, 745 F.2d at 748-52. As for the required third predicate, Aiello argues that the jury must have used an aiding and abetting offense from Counts 2-5 or 7-12, but that an aiding and abetting offense cannot stand as a series predicate.

This argument as to the third predicate, however, is based on a faulty syllogism. Aiello argues, first, that each predicate drug offense must be sufficient not only to qualify as a Title 21 felony, but also as a single section 846 conspiracy violation. Aiello derives this theory from the “in concert” requirement of the CCE statute, citing United States v. Sperling, 560 F.2d 1050, 1055 (2d Cir.1977) (“to act ‘in concert’ to violate the law necessarily includes conspiracy to do so”). Aiello argues, second, that aiding and abetting rests upon different bases than does conspiracy. Combining these arguments, Aiello deduces that because the section 848 predicate must qualify as a section 846 conspiracy violation, it cannot be satisfied by an aiding and abetting offense. But this conclusion assumes that the same act cannot support both conspiracy and aiding and abetting, a premise that is flawed, see Nye & Nissen v. United States, 336 U.S. 613, 620, 69 S.Ct. 766, 770, 93 L.Ed. 919 (1949); United States v. Phillips, 664 F.2d 971, 1009-10 (5th Cir.1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982).

In Amen, 831 F.2d at 381, we held “that because section 848 applies only to a person in charge of a CCE, one cannot incur [CCE] liability for aiding and abetting such a person.” The Amen defendant escaped liability because he was not an employee of the criminal enterprise. The statute, we noted, was meant to target kingpins, not underlings. See id. The same reasoning led us to hold in United States v. Benevento, 836 F.2d 60 (2d Cir.1987), cert. denied, — U.S. —, 108 S.Ct. 2035, 100 L.Ed.2d 620 (1988), that a “mere employee[] of [the] enterprise” who did not “coordinate[ ] or manage[ ] five or more individuals in the conduct of the enterprise” could not be convicted of CCE under a theory of aiding and abetting. Id. at 71. Unlike the defendants in those two cases, however, Aiel-lo is a kingpin. We do not read our earlier opinions to shield kingpins from CCE liability solely because they are convicted as aiders and abettors rather than as principals with regard to the predicate crimes. We therefore hold that a drug felony violation based upon aiding and abetting may qualify as a “series” predicate where, as here, the aider and abettor is a kingpin.

The evidence is sufficient to sustain the remaining elements of section 848. Any rational jury could have found that Aiello organized, supervised or managed at least five people, from among Giusto, Palmer, Gambina, Robinson, Boyd, Vito Aiello, Jane Aiello, DiGangi (whose initials, D.D., appear in the drug ledger found in Aiello’s residence) and others. As Aiello concedes, he need not have acted in concert with all of the five at the same time, see Young, 745 F.2d at 747, he need not have had personal contact with each of the five, see United States v. Cruz, 785 F.2d 399, 407 (2d Cir.1986), and he need not have exercised the same type of management or[*265] supervision over each, see id. Aiello urges that he cannot be convicted because the jury did not specify which five persons, or for that matter, which three predicates, it relied upon. Aiello should not be heard to complain, however, because at trial he initially objected to the use of a special interrogatory on these issues. Although he later changed his position, the jury had been deliberating for four hours. The district court did not abuse its discretion in ruling that this request came “too late.”

2. Aiello’s Other Contentions

Aiello contends that the district court erred in instructing the jury that for the CCE series it could rely on violations not charged in the indictment. However, “an indictment charging a violation of § 848 need not ‘specify each violation constituting the continuing series of viola-tions. . . ."Young, 745 F.2d at 747 (quoting United States v. Sperling, 506 F.2d 1323, 1344 (2d Cir.1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439 (1975)). Hence, the government need not specifically plead, let alone obtain convictions on, any of the predicate offenses; it simply must prove at trial a continuing series of at least three felony offenses. Id.

Detective Ford’s testimony regarding the meaning of one of Giusto’s statements made during their November 7,1984 meeting properly was admitted. Aiello is correct that there was no attempt in this case to qualify Ford as an expert witness. But the testimony was admissible as an opinion by a lay witness under Fed.R.Evid. 701 because the “language on the tape[ ] is sharp and abbreviated, composed with unfinished sentences and punctuated with ambiguous references to events that are clear only to [the conversants],” United States v. De Peri, 778 F.2d 963, 977 (3d Cir.1985), cert. denied, 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916 (1986). Moreover, the district court here “vigorously policed the government’s examination,” id. at 978, preventing Ford from telling the jury about whom he thought Giusto was speaking of when Giusto mentioned “Tony” at numerous points in the conversation.

Finally, Aiello’s argument that his sentences are “grossly disproportionate” to the crimes also must be rejected. A sentence imposed by a district court is entitled to “substantial deference,” Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3009, 77 L.Ed.2d 637 (1983), and, upon review, an appellate court may consider only “whether the sentence ... is within constitutional limits,” id. at 290 n. 16, 103 S.Ct. at 3009 n. 16; see United States v. Gaggi, 811 F.2d 47, 63 (2d Cir.), cert. denied, — U.S. —, 107 S.Ct. 3214, 96 L.Ed.2d 701 (1987). Factors to be considered in assessing constitutional proportionality include the gravity of the offense, the harshness of the penalty, and the sentences imposed on other criminals for the same type of crimes. Solem, 463 U.S. at 292, 103 S.Ct. at 3011.

Aiello was sentenced to life imprisonment without parole on Count 15, plus 140 consecutive years on the other counts. Eighth amendment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence. As the Supreme Court once explained, “[i]f [the defendant] has subjected himself to a severe penalty, it is simply because he has committed a great many such offences,” O’Neil v. Vermont, 144 U.S. 323, 331, 12 S.Ct. 693, 696, 36 L.Ed. 450 (1892) (quoting State v. O’Neil, 58 Vt. 140, 2 A. 586 (1886)).

The sentence of life imprisonment without parole indeed is harsh. The offense, however, is a grave one. Aiello was a large supplier of hard drugs to wholesale distributors for an extended period of time. For crimes such as his, life sentences have been found appropriate. See, e.g., Williams v. United States, 731 F.2d 138, 139 (2d Cir.1984), cert. denied, 469 U.S. 1188, 105 S.Ct. 956, 83 L.Ed.2d 963 (1985); United States v. Barnes, 604 F.2d 121, 156 (2d Cir.1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980). The district court did not abuse its substantial discretion in choosing an appropriate sentence.

[*266] We have considered Aiello’s remaining contentions and find them meritless.

CONCLUSION

The judgment of the district court is affirmed.

1

. Aiello was charged with this sale in Count 11, but was acquitted.

2

. Because the sale in Count 8 was not consummated, the conviction cannot be based on the alternative theory of aiding and abetting, see United States v. Wiley, 846 F.2d 150, 154 (2d Cir.1988), but rather must be based upon constructive possession, discussed infra.