United States v. Morello, 81
| Decision Date | 31 December 1957 |
| Docket Number | No. 81,Docket 24690.,81 |
| Citation | 250 F.2d 631 |
| Parties | UNITED STATES of America, Appellee, v. Joseph MORELLO and Rosario Farulla, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
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Robert Mitchell, New York City, for defendants-appellants.
George C. Mantzoros, Asst. United States Atty., S.D.N.Y., New York City (Paul W. Williams, U. S. Atty., and Arthur B. Kramer, Asst. U. S. Atty., S.D.N.Y.), New York City, for appellee.
Before MEDINA, HINCKS and WATERMAN, Circuit Judges.
This is an appeal by defendants Morello and Farulla from convictions for conspiracy, in violation of 18 U.S. C.A. § 371, to import narcotics in violation of the narcotic laws, 21 U.S.C.A. §§ 173, 174. The trial of a third defendant, DiGiovanni, was severed. Other persons, including one Migliori, who died before trial, and one Sibille, a seaman, were named as co-conspirators but not as defendants.
The government's evidence, if believed, tended to prove the following. One Bruno, an ex-convict, while traveling in Europe, met DiGiovanni in France. They became friendly and DiGiovanni told him that some Americans owed him money for heroin he had shipped to them. Bruno, on his return to the United States immediately reported the information received from DiGiovanni to the narcotics authorities. Under their direction he carried on correspondence with DiGiovanni which soon led to Morello and Farulla. Zirilli, an agent of the Narcotics Bureau, together with Bruno, who had been made a special agent of the Bureau, on three separate occasions discussed with the appellants the possibility of paying DiGiovanni off for his former shipment and resuming operations. The appellants, through the agents, offered to form a partnership with DiGiovanni for smuggling heroin into the United States. The offer was conveyed to DiGiovanni by Bruno acting as an ostensible party to the conspiracy first by letter and shortly thereafter in person in Marseilles. DiGiovanni agreed to cooperate and thereafter placed a shipment of heroin on the S. S. Flandre with a seaman, Sibille, as courier. Sibille reported his arrival in New York to Zirilli. As previously agreed with the appellants Zirilli informed them of the arrival of the heroin and the appellants said they would remove it from the ship. At the last minute they begged off and, unknown to them, Zirilli boarded the ship next day and on payment to Sibille of $2,400 in official advance funds removed the heroin, turning it over to the federal authorities. Another shipment was agreed upon and Bruno made the arrangements with DiGiovanni. But before the shipment arrived the appellants became suspicious of the agents and broke contact. The arrests followed shortly.
There was ample evidence to support the convictions and no claim to the contrary is made. But the appellants make three claims of error in the receipt of evidence. The first relates to Bruno's testimony that DiGiovanni had told him that he would give him a sample of the heroin to be contained in a future shipment and that, on the following morning, DiGiovanni did take samples from a larger package which he put into glassine bags, one of which he gave to Bruno for comparison with the main shipment of heroin when it should be received in New York. The sample thus given to Bruno was not offered in evidence nor was there evidence of a chemical analysis showing that the content was in fact a narcotic. However, the testimony came in without objection and when at the close of the evidence the judge indicated that the absence of analysis affected only the weight — and not the admissibility — of the evidence, appellants' counsel apparently acquiesced in the ruling and made no motion to strike. We think the ruling was clearly right. Poliafico v. United States, 6 Cir., 237 F.2d 97, 106, certiorari denied 352 U.S. 1025, 77 S.Ct. 590, 1 L.Ed.2d 597. The background evidence was such as to furnish ample ground for inference that the material in question was heroin and that DiGiovanni's words and deeds in connection with the incident were binding both on him and on the appellants if found by independent evidence to be co-conspirators.
Appellants next contend that it was erroneous and seriously prejudicial to admit in evidence copy of a letter (Exhibit 2) written by Bruno to DiGiovanni under the direction of the Narcotics Bureau and not by the authority or in the presence of the appellants. In this letter Bruno, posing as a friend, offered his services to collect what was due DiGiovanni for a shipment of narcotics introduced into the United States prior to the conspiracy charged in this indictment. In fact this letter was designed to elicit from DiGiovanni information disclosing his confederates in the United States. It was received in evidence over objection but subject to connection by evidence which should show that DiGiovanni was a member of the conspiracy.
This basis of admission is untenable because this was a letter sent to an alleged co-conspirator: it was not an act or declaration of or by a co-conspirator. Yet the government seeks to sustain its admission on the basis of the co-conspirator exception to the hearsay rule. No case has been cited to us which has ever so applied the conspiracy rule as to allow introduction of words or deeds of a government agent to an alleged co-conspirator out of the presence of the defendants. Certainly the reason for the exception ceases to exist where, in fact, there is no community of interest between actor and defendant. Nor does the conspiracy rule apply to make the words and deeds of the narcotic agents admissible merely because the appellants may have believed that the agents were their co-conspirators, — a...
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