US v. Aiello, 864 F. 2d 257 - Court of Appeals, 2nd Circuit 1988

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\u27s 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\u27s interpretation of a co-conspirator\u27s statement; and the severity of his sentence. These remaining contentions also are rejected and the judgment of the district court is affirmed