United States v. Tutino, 345

• Decision Date: 21 July 1959
• Docket Number: No. 345,Docket 25494.,345
• Citation: 269 F.2d 488
• Parties: UNITED STATES of America, Appellee, v. Nicholas TUTINO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

269 F.2d 488 (1959)

UNITED STATES of America, Appellee, v. Nicholas TUTINO, Defendant-Appellant.

No. 345, Docket 25494.

United States Court of Appeals Second Circuit.

Argued June 11, 1959.

Decided July 21, 1959.

Daniel H. Greenberg, New York City, for defendant-appellant.

John C. Lankenau, Asst. U. S. Atty., Southern District of New York, N. Y., New York City (S. Hazard Gillespie, Jr., U. S. Atty., for the Southern District of New York, N. Y., and Kevin Thomas Duffy, Asst. U. S. Atty., New York City, on the brief), for appellee, United States of America.

Before HINCKS and MOORE, Circuit Judges, and SMITH, District Judge.

J. JOSEPH SMITH, District Judge.

Appellant Nicholas Tutino and one Richman were convicted on trial to Judge Kaufman, without a jury, in the United States District Court for the Southern District of New York of conspiracy illegally to sell narcotics. A third defendant, one Papalardo, was acquitted. Richman was sentenced to imprisonment for two and one half years. He has not appealed. Tutino was sentenced to imprisonment for four years. He has appealed in forma pauperis. We find that Judge Kaufman had before him substantial evidence of each of the elements of the crime charged and affirm the judgment.

October 27, 1953, Chappell, a federal narcotics agent, sought out defendant Richman in Cleveland, Ohio, and made an appointment to meet him at the El Bolero Bar. Pursuant to the appointment, they met, Chappell representing himself to be Jimmy White, a close friend of one Smitty, with whom Richman had had negotiations about a "deal" which had fallen through. Chappell represented that he wanted to help Smitty by sharing the profits from a transaction. After receiving from Chappell as references the names of underworld characters in Buffalo, Richman, who needed money, agreed to contact people in Buffalo who would furnish heroin to Chappell for $13,000 a kilo. Chappell asked that the amount be half a kilo at the same rate, as $13,000 would exhaust his capital. Richman was dubious about the smaller amount, but promised to try. Richman the next night, after some telephoning, gave Chappell his business card and a telephone number in Niagara Falls at which he was to ask for Pat or Nick. It was agreed that Chappell would go to Buffalo October 30. Richman requested that his share of profits from each transaction be given to Richman's brother. On October 30, Chappell went to Buffalo, called the given number, asked for Pat or Nick, and talked with defendant Tutino, who was the "Nick" referred to. Chappell and Tutino met and Tutino agreed to furnish pure heroin at $13,000 a kilo, to be delivered November 2nd in New York City, Chappell to go to the Commodore Hotel and to have an inspection of the drugs before payment. On November 2, Chappell and Tutino met at the Commodore. Tutino demanded payment of the $13,000 in advance. Chappell refused to pay the $13,000 in advance of delivery but tendered $2,000 in bills for four or five ounces, payment in advance. Tutino refused the money on the stated ground that there was as much risk on a sale of four or five ounces as on a sale of a kilo and the profit on a $2,000 deal wasn't enough to make it worth while. They parted with no further agreement. Some twenty minutes later Chappell encountered Tutino outside the hotel, when Tutino suggested defendant Papalardo in Cleveland as a reference, in an effort to obtain Chappell's agreement to advance payment. Chappell agreed to accept Papalardo's recommendation. Tutino left, went to the Warrington Hotel bar with two men, and had a conversation there. Tutino went alone to the Statler, gave a ticket to a bellboy and received a small valise which he took to the Warrington bar and met with one of the men he had talked with there earlier. Tutino phoned Chappell and gave him a number in Cleveland — the Victory Lounge — at which Papalardo could be reached. Chappell phoned Papalardo and made an appointment for a meeting in person at the Victory Lounge at which Papalardo vouched for Tutino as "good people" to deal with for "junk," on being informed that payment in advance was being required. Chappell then called Tutino in Niagara Falls and requested half a kilo. Tutino called back and told Chappell he had talked with the people in New York and they had agreed on the half kilo transaction but that future transactions would have to be for a whole kilo. He told Chappell that on the night Chappell had refused to take the stuff and refused to put the money out, Tutino already had the stuff and had to return it, and that his people didn't like it. Chappell went to New York to the Commodore November 5, received a call from Tutino, and following another call November 6 met Tutino in the Commodore lobby and accompanied him to Thompson's restaurant nearby. Arrangements were made for Tutino to call Chappell when delivery was ready and for Chappell to take a taxi to meet Tutino. They went from Thompson's into Grand Central Station, where the money ($6,500) was passed by Chappell to Tutino. Tutino then in cabs and on foot, doubling back and making many changes of direction, shook off surveilling agents and disappeared with the money. No call was made to Chappell. No narcotics were delivered. Richman and Papalardo, advised of Tutino's disappearance, endeavored to locate him without success. Tutino was reported to be in Florida, and was finally located on November 23, 1953 in the Rochester County Jail, where he denied ever seeing Chappell before.

Tutino attacks the sufficiency of the evidence to sustain the finding that his guilt was proved beyond a reasonable doubt. The test is whether, taking the evidence in the view most favorable to the government, there is substantial evidence to support the verdict. United States v. Manton, 2 Cir., 107 F.2d 834,...