Carrado v. United States

• Decision Date: 10 December 1953
• Docket Number: 11689,11694-11696.,No. 11685-11687,11685-11687
• Parties: CARRADO v. UNITED STATES. MANFREDONIA v. UNITED STATES. SMITH v. UNITED STATES. WILLIAMS v. UNITED STATES. ATKINS v. UNITED STATES. JAMES v. UNITED STATES. TURNER v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

93 US App. DC 183, 210 F.2d 712 (1953)

CARRADO v. UNITED STATES.

MANFREDONIA v. UNITED STATES.

SMITH v. UNITED STATES.

WILLIAMS v. UNITED STATES.

ATKINS v. UNITED STATES.

JAMES v. UNITED STATES.

TURNER v. UNITED STATES.

Nos. 11685-11687, 11689, 11694-11696.

United States Court of Appeals District of Columbia Circuit.

Argued October 27, 1953.

Decided December 10, 1953.

Petition for Rehearing Denied March 3, 1954.

COPYRIGHT MATERIAL OMITTED

Mr. Joseph J. Lyman, Washington, D. C., for appellants Carrado and Manfredonia.

Mr. T. Emmett McKenzie, Washington, D. C., for appellant Smith.

Mr. DeLong Harris, Washington, D. C., with whom Mr. Curtis P. Mitchell, Washington, D. C., was on the brief, for appellant Williams.

Mr. Albert J. Ahern, Jr., Washington, D. C., with whom Mr. James J. Laughlin, Washington, D. C., was on the brief, for appellants Atkins, James and Turner.

Mr. William J. Peck, Asst. U. S. Atty., Washington, D. C., at time of argument, with whom Messrs. Leo A. Rover, U. S. Atty., Lewis A. Carroll and Samuel J. L'Hommedieu, Jr., Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee. Mr. Charles M. Irelan, U. S. Atty., Washington, D. C., at time record was filed, entered an appearance for appellee. Mr. William R. Glendon, Asst. U. S. Atty., Washington, D. C., at time record was filed, also entered an appearance for appellee.

Before EDGERTON, WILBUR K. MILLER and FAHY, Circuit Judges.

WILBUR K. MILLER, Circuit Judge.

In the first count of a six-count indictment, returned October 15, 1952, the grand jury charged that, beginning about March 17, 1949, and continuing to the date of the indictment, the seven persons who are appellants here and seven other persons¹ conspired to traffic illegally in narcotic drugs; and that in furthering their conspiratorial objectives the defendants committed, among others, thirty-nine overt acts, which were briefly described. The next three counts accused the alleged conspirators of violating penal statutes concerning narcotics by selling to one John Henry Smith on February 6, 1952, seventeen one-grain capsules containing a mixture of heroin hydrochloride, quinine hydrochloride and milk sugar. Two more counts charged the alleged conspirators with substantive violations on February 27, 1952, based on the possession of one capsule containing a similar mixture.

When the case was called for trial in the United States District Court for the District of Columbia November 10, 1952, all of the indicted persons were present except Harry Tantillo, who had not been apprehended, and Letha Simpson, who was undergoing an operation that day. Paul Robinson pleaded guilty to the conspiracy count and the government agreed to dismiss the substantive counts as to him at the time of sentence. The trial of the remaining eleven defendants — including, of course, the seven appellants — then began. Shortly afterward, on the government's motion, Esther Wright was discharged under § 23-110, D.C.Code 1951, and later became a witness for the United States. The trial proceeded with the remaining ten defendants until, at the close of its evidence, the government dismissed as to Pearl Woodward, leaving nine on trial. The jury acquitted Sam Palmer and Warren Williams, but found the remaining seven defendants guilty under all six counts. Dissatisfied with that result, they appeal.

As to the conspiracy, the prosecution presented testimony tending to show the conspirators organized and operated a narcotics syndicate headed by Harry Tantillo, of New York, which regularly transported contraband drugs from its New York member-wholesalers to the member-distributors — chief of whom was Randolph Turner — in the District of Columbia, who in turn supplied the illicit material to other members of the syndicate, who were retail salesmen. This testimony was furnished by two of the indicted fourteen and by two other witnesses, all of whom said they had been members of the syndicate and had been participants in its activities. They described the operation of the organization in considerable detail, and told of overt acts committed in furtherance of the conspiracy, including many of those charged in the first count of the indictment.

As to the sale of seventeen capsules to John Henry Smith, the basis of the first three substantive counts of the indictment, two police officers testified that on February 6, 1952, they took John Henry Smith, a known drug addict who had turned informer, to the vicinity of the home of the appellant Joseph Smith. Having first searched John Henry and removed all property from his person, the officers gave him $20.00 and sent him into Joseph's house. When he returned thirty minutes later, a search revealed he had seventeen capsules containing a white powder, and three one-dollar bills. A chemist later identified the powder as the mixture containing heroin.

Before calling John Henry Smith as a witness, government counsel informed the court he had been told by Smith's attorney that, for fear of self-incrimination, his client would refuse to testify concerning the incident just noted. This produced a legal argument before the court by John Henry's attorney and counsel for the prosecution, in which the latter insisted that John Henry could not incriminate himself by testifying to a purchase of narcotics made at the instance of the government, as criminal intent would be lacking. The trial judge said:

"* * * I see no rational basis for his claim that the questions propounded might incriminate him, in as much as there could be no criminal intent involved in answers to those questions. Therefore, he will be required to answer."

After this statement the jury was brought in and John Henry's attorney, after consultation with his client, said, "He is prepared to answer, if you want to propound the questions again."

John Henry Smith then testified that he was taken to Joseph Smith's house, as the officers had said, and there bought seventeen capsules of the heroin mixture, not from Joseph Smith, but from a boy whom he did not know who told him "Peter Rabbit" (Joseph Smith) was not at home. When this occurred government counsel submitted two writings to the witness and asked if he could identify the signatures thereon. He said he could not. Government counsel then announced surprise and was thereafter permitted, over appellants' objection, to propound leading questions to the witness. He continued to say he could not identify the signatures and that he did not buy the seventeen capsules from Joseph Smith himself.

The two writings were receipts which were later identified by Detective Sgt. Joseph A. Gabrys and received in evidence. Both were dated February 6, 1952. One receipt was for $3.00 "for information furnished to the Narcotic Squad." The other acknowledged receipt from Gabrys of the sum of $17.00 for "purchase of seventeen capsules of heroin from Joseph Smith * * * at 1323 West Virginia Avenue, Northeast, by John Henry Smith on above date." Gabrys testified that John Henry Smith signed the two receipts in his presence.

In addition to the foregoing concerning the alleged sale of the seventeen capsules by Joseph Smith, Esther Wright testified that in her presence, when it was suggested to Joseph Smith that John Henry Smith was "wrong" (that is, had turned informer), Joseph said, "Well, I certainly sold him seventeen capsules."

As to the possession of one capsule of the mixture containing heroin, there was evidence that on February 27, 1952, five police officers, including Lt. Carper, a deputy U. S. marshal and a federal narcotics agent went to the house of Joseph Smith. The deputy marshal had a warrant of arrest for Joseph Smith and the narcotics agent had a search warrant for the premises. Two of the policemen knocked at the front door and represented themselves as vacuum cleaner salesmen. The defendant Warren Williams opened the door slightly, whereupon the officers entered, stating their identity, and saying they "had a warrant for the place"; and the other officers, who had waited close by, entered practically at the same time. Joseph Smith, Warren Williams, Esther Wright and Pearl Woodward were in the house. One of the police officers pursued Joseph Smith into the bathroom on the second floor and observed him standing before a flushing toilet bowl in which a number of capsules were swirling. The officer removed one of the capsules, which contained a white powder later identified as the heroin mixture. This capsule became the basis of the last two substantive counts of the indictment. Further search of the premises revealed various paraphernalia used by drug addicts, and other indicia of narcotics.

Appellants attack the first count of the indictment for duplicity, because it charged them with conspiring to violate three different penal statutes. They seek to avoid the effect of the Braverman case, in which the Supreme Court said a conspiracy is a single crime no matter how diverse its objects,² by saying count one does not allege a single conspiracy in violation of 18 U.S.C. § 371, and does not allege "that the various other crimes charged, or the various conspiracies to violate other statutes, were all a part of the single conspiracy."

We observe, however, this language in the first count:

"During the period from on or about March 17, 1949, continuously to the date of the finding of this indictment * * * the defendants * * * conspired * * * to commit offenses against the United States * * *." (Emphasis supplied.)

This sufficiently alleges, we think, the formation of a single continuing conspiracy to commit plural crimes. Consequently, under the Braverman decision, the first count of the indictment is not duplicitous.

The five substantive counts of the indictment are attacked on the theory that there was no evidence before the grand jury as to an essential element of the crimes charged. The theory is based primarily on the fact that the Treasury Department...