United States v. Pisano, 10388.

• Decision Date: 05 December 1951
• Docket Number: No. 10388.,10388.
• Citation: 193 F.2d 355,31 ALR 2d 409
• Parties: UNITED STATES v. PISANO et al.
• Court: U.S. Court of Appeals — Seventh Circuit

31 ALR 2d 409, 193 F.2d 355 (1951)

UNITED STATES v. PISANO et al.

No. 10388.

United States Court of Appeals Seventh Circuit.

December 5, 1951.

COPYRIGHT MATERIAL OMITTED

Maurice J. Walsh, Morris G. Kaufman, Chicago, Ill., for appellant.

Otto Kerner, Jr., U. S. Atty., Joseph E. Tobin, Asst. U. S. Atty., Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, and FINNEGAN and LINDLEY, Circuit Judges.

LINDLEY, Circuit Judge.

Defendants appeal from judgments entered upon a verdict returned by a jury finding each of them guilty under counts 1 to 3 and 10 to 28 inclusive of an indictment charging them and one McNary and one Bowman with purchasing heroin, not in or from the original stamped packages, in violation of Section 2553(a), Title 26 U.S. C.; sale of heroin not in pursuance of a written order from the purchaser, in violation of Section 2554(a) of Title 26 U.S.C.; and receiving, concealing, buying and facilitating the transportation and concealment of heroin after importation into the United States, in violation of Section 174, Title 21 U.S.C. Count 28 charged all defendants with conspiracy to violate the Narcotic Act in violation of Section 371, Title 18 U.S.C. The relatively large number of counts is due to the fact that the indictment, as to each transaction, included three counts, one charging purchase, another sale and the third, possession of narcotics. Only the counts mentioned reached the jury. Neither McNary nor Bowman was tried, as one of them had not been apprehended and the other had defaulted upon his bail bond and become a fugitive.

The evidence was, in substance as follows: Morris Taylor, an informer, on January 21, 1949, after having been searched by a narcotic agent and given some money with which to buy narcotics, met McNary and a man named Sonny, at 1228 South Peoria Street in Chicago. McNary walked with Taylor to the intersection of 12th and Peoria, where he made a telephone call; then they both returned to 1228 South Peoria, where, shortly, Ginnone appeared in an automobile. He entered the apartment where Taylor and McNary were and said to the latter "follow me." Ginnone, McNary and Sonny left together. A short time later, Sonny reentered and handed Taylor a package which he turned over to an agent of the Bureau of Narcotics and which was found to contain 107.4 grains of heroin hydrochloride.

On June 15 and 16, Taylor's attempts to contact Pisano met with failure. However, about 9 o'clock on the night of June 16, Bowman called at Taylor's home. Taylor went outside with Bowman and the two approached Pisano and Ginnone who were sitting in a parked cream-color car. Pisano asked Taylor what he wanted; Taylor replied that he wished to buy narcotics. Pisano said that he had turned his business over to Bowman, that if Taylor wanted anything, he should see Bowman and would be taken care of. Taylor inquired as to the price. Pisano answered that it "would then be right and the stuff would be right." Bowman told Taylor that if at any time he desired to buy narcotics, he should call him, Bowman, at a certain liquor store.

Following this, on June 22, after having been searched by Narcotic Agent Fields and found free of narcotics, Taylor was given money and driven to 47th and Prairie, Chicago, where he met Bowman at about 3 o'clock P.M. Bowman proceeded to make some telephone calls and advised Taylor that he could not contact his man but to return at 6:30. At the suggested hour, Taylor returned to 47th and Prairie, where he again met Bowman. Taylor, Bowman and a third man, Koen, then drove to the west side of the city, in the vicinity of the County Hospital. There Bowman and Pisano met and conversed in front of a restaurant opposite the hospital. Pisano then talked to Ginnone, who was sitting in a station wagon. Bowman came back to the car in which Taylor and Koen were waiting. Taylor and Bowman then got out of their car and walked over to and talked to Pisano and Ginnone. Pisano told Taylor to get back in his car, saying "You are hot and I am hot. Why did you get out?" Taylor and Bowman then returned to the car driven by Koen and drove to 31st and Halsted Streets. There Koen and Taylor each handed Bowman $75. Bowman left the car, crossed the street to where Pisano was then standing on the northeast corner of the intersection, and conversed with him. Bowman then returned to the car and handed Koen and Taylor each a package, later found to contain heroin hydrochloride.

On June 27, 1949 Taylor met and conversed with Bowman at 47th and Prairie Avenue and then drove with him to the vicinity of the County Hospital, where Pisano and Ginnone were standing in front of the Y. M. C. A. Bowman got into the car driven by Ginnone. Shortly thereafter he returned to the car in which Taylor was sitting and gave the latter a package, which was later found to contain heroin hydrochloride.

On June 29, 1949, Taylor called Bowman, making an appointment to meet him at 6:30 at 47th and Prairie Avenue. Bowman again drove Taylor to the neighborhood of the County Hospital, where he left the car and met Ginnone, who was sitting in a light gray automobile near the Y. M. C. A. After a short conversation, Ginnone drove away, returning a short time later to the same location, where he handed Bowman a cellophane package similar to those Taylor had been receiving. Bowman then returned to the car in which Taylor was sitting and gave him the package, which was later found to contain heroin hydrochloride.

On July 5, 1949 about 6 o'clock, Taylor was driven to 47th and Prairie, where he again met Bowman. The two walked to 37th and South Parkway where Taylor gave Bowman money. They stood on opposite sides of the street for some 45 minutes, until Pisano and Ginnone appeared in a light gray automobile, which Bowman entered and which they then drove south to 37th Street, west of South Parkway. Some five minutes later Bowman returned to where Taylor was sitting and handed him a package which was found to contain heroin hydrochloride.

On July 13, 1949 Taylor met Bowman at 47th and Prairie Avenue at 6:30 P.M. The two men then walked to 44th and South Parkway where Taylor gave Bowman money; again each waited on opposite sides of the street. Shortly later Ginnone drove up in a light gray Chrysler. Bowman got in this car, which drove away. Some five minutes later Bowman returned and gave Taylor a package which was found to contain heroin.

None of these packages bore the required stamps and no order forms were surrendered by Taylor for any of them. Upon each occasion, just before he met any of the defendants, Taylor was searched by a Narcotic Agent, found free of narcotics, and given money.

One cellophane container which Taylor received was submitted to a fingerprint expert, who, upon comparison with Pisano's fingerprints, found a print on the container to be identical with that of the left index finger of Pisano.

The defendants did not testify and no evidence was offered in their behalf.

We have refrained from commenting upon the events of June 24, 1949 when Taylor, after having met Bowman at 47th and Prairie Avenue, was driven to the vicinity of Cook County Hospital. Bowman, after receiving $150, left the car and, returning a short time later, handed Taylor a package. Though Pisano and Ginnone were seen in the vicinity in the light gray automobile and at various places in and about where Taylor and Bowman appeared, there is no evidence that Bowman, at that time, made any contact with either Pisano or Ginnone. Accordingly we find the evidence insufficient to support a verdict upon the counts relating to this incident, namely, the 13th, 14th and 15th.

Defendants assert error in the denial of the motions for acquittal, in the court's failure to submit the issue of entrapment to the jury, in admission of fingerprint evidence, in improperly instructing the jury, in the assumption that venue is within the statutory presumption and in overruling a motion for mistrial based upon a certain newspaper article read by some of the jurors during the course of the trial.

The motions for acquittal raised the question of whether the evidence supported the verdict. For this reason we have related, in somewhat sketchy form, the evidence submitted by the government. Upon careful consideration of all the facts, it is clear to us that a jury question was presented as to each transaction mentioned and that the jury had before it amply sufficient evidence to support a finding that all the illegal drugs procured emanated from either Ginnone or Pisano or both. In each instance Bowman or McNary took Taylor's money, contacted one or both of the two defendants and immediately returned with the package of narcotics. There was no sign of narcotics and no transfer until either or both of these defendants had been contacted. Surely the verdict was entirely justified; in fact, the jury could not have reasonably found other than that Bowman and McNary received the narcotics from Ginnone and Pisano. Under well known rules no basis exists upon which we would be justified in deciding that the trial court erred in submitting the cause to the jury.

This is true not only of the counts charging substantive offenses but also of the one charging conspiracy to violate the narcotic laws. The various meetings, conversations,...