249 F.2d 371 (2nd Cir. 1957), 82, United States v. Romero

Docket Nº:82, 24687.
Citation:249 F.2d 371
Party Name:UNITED STATES of America, Appellee, v. Eloy Joseph ROMERO and Ralph John Visconti, Defendants-Appellants.
Case Date:November 18, 1957
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 371

249 F.2d 371 (2nd Cir. 1957)

UNITED STATES of America, Appellee,


Eloy Joseph ROMERO and Ralph John Visconti, Defendants-Appellants.

Nos. 82, 24687.

United States Court of Appeals, Second Circuit.

November 18, 1957

Argued Oct. 8, 1957.

Page 372

Robert Mitchell, New York City, for defendants-appellants.

Paul W. Williams, U.S. Atty., Southern District of New York, New York City (Robert Kirtland, Asst. U.S. Atty., New York City, of counsel on the brief), for appellee.

Before CLARK, Circuit Judge, LUMBARD and MOORE, Circuit Judges.

LUMBARD, Circuit Judge.

Appellants seek reversal of a conviction for the sale of narcotics and for conspiracy to violate the federal narcotic laws. They were tried before a jury in the United States District Court for the Southern District of New York, and each was sentenced by Judge Levet to 8 years imprisonment on Count 1 and 5 years on Count 4, to be served concurrently. Count 3, which the Court dismissed at the end of the government's case, by charging that the defendants, being over 18 years of age, had sold heroin to Matthew Ottomano, then under 18, subjected the defendants to a possible death sentence in the discretion of the jury if they were convicted. Narcotic Control Act of 1956, 21 U.S.C.A. § 176b.

Romero and Visconti assign as error the trial judge's questioning of veniremen as to their scruples regarding capital punishment, the court's rejection of a motion to suppress certain evidence claimed to be the product of an illegal search and seizure, and the government's calling a co-conspirator to testify when it allegedly knew he would refuse to testify.

There was ample evidence to support the convictions. On the night of December 3, 1956, Agent Palma of the Bureau of Narcotics met Matthew Ottomano and Anthony Boschetti, both of whom he had met on prior occasions, at about 7:20 P.M. near 117th Street and First Avenue in New York City. After a brief conversation, Ottomano and Boschetti walked west on 117th Street toward Second Avenue, Palma remaining near 326 East 117th Street. Ottomano and Boschetti then proceeded north on Second Avenue for one black and then turned west into 118th Street. During this time they were observed by Agent Coyne who was walking on the opposite side of the street. Upon entering 118th Street, Coyne ran up the stairs of 204 East 118th Street to the roof which was four floors above the street.

Boschetti lingered by the stoop of 209 East 118th Street while Ottomano entered a candy store at No. 205, just a few feet away and almost directly across the street from Coyne's observation post. Lights on 118th Street and on Third Avenue and in the candy store which had a glass front permitted Coyne to observe from the roof what happened below. Ottomano met appellant Romero in the front of the store and immediately thereafter appellant Visconti came out of the No. 205 apartment building and entered the candy store. The three were seen to engage in conversation, after which Visconti left the store and reentered the apartment building.

Ottomano and Romero then emerged from the candy store and Romero walked over to Boschetti who was on the stoop at No. 209 and chased him away. Boschetti then proceeded east on 118th Street to the middle of the block, where he stopped to wait...

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