275 F.2d 588 (2nd Cir. 1960), 266, United States v. Manfredi
|Docket Nº:||266, 26011.|
|Citation:||275 F.2d 588|
|Party Name:||UNITED STATES of America, Appellee, v. Joseph MANFREDI and Pasquale DeLuca, Appellants.|
|Case Date:||March 08, 1960|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued Feb. 1, 1960.
Daniel H. Greenberg, New York City (Vincent J. Velella, New York City, on the brief), for appellant, Joseph Manfredi.
Arnold D. Roseman, New York City (Harry Silver, Brooklyn, on the brief), for appellant, DeLuca.
Stephen E. Kaufman, Asst. U.S. Atty., New York City (Thomas D. Edwards and Gideon Cashman, Asst. U.S. Attys., and S. Hazard Gillespie, Jr., U.S. Atty., for the Southern District of New York, New York City, on the brief), for appellee.
Before MEDINA and WATERMAN, Circuit Judges, and MADDEN, Judge, United States Court of Claims. 1
MEDINA, Circuit Judge.
Joseph Manfredi and Pasquale DeLuca, together with Victor Euphemia, Joseph DeSerra and Frank Correggio were indicted for conspiracy to violate the narcotics laws. The indictment also contained a number of substantive counts against the various defendants other than Manfredi, who was named only in the conspiracy count. Euphemia, DeSerra and Correggio pleaded guilty before trial but did not testify. At the close of the prosecution's evidence the conspiracy count was dismissed as to DeLuca. Manfredi and DeLuca rested without further proof, and the case went to the jury on the conspiracy count against Manfredi and on a substantive count against DeLuca, charging him with receiving, concealing, selling and facilitating the transportation, concealment and sale of 1/4 kilogram of heroin on July 31, 1957. Both were found guilty by the jury. Manfredi was sentenced to seven years and DeLuca to five years imprisonment. Both appeal and they have been released on bail fixed by the trial judge at $35, 000 and $15, 000 respectively.
As each appellant challenges the sufficiency of the evidence to support his conviction and claims that a verdict of acquittal should have been directed as to him, we shall in due course summarize the proofs and discuss the various points urged as a basis for reversal.
The Case Against Manfredi
Chronologically the case starts with a sale of 431 grains of heroin by DeSerra to Agent Stephen F. Giorgio of the Bureau of Narcotics on March 4, 1957 on the uptown subway platform of the Lexington Avenue subway at 28th Street and Fourth Avenue in New York City. The scene of actual deliveries of
heroin will shift to an apartment occupied by the Correggios at 1900 Longfellow Avenue in the Bronx and to the neighborhood of 86th Street and Lexington Avenue. There was a final delivery of 1/4 kilo of heroin by Euphemia to Anthony Mangiaracina, another Agent employed by the Bureau of Narcotics, for $2500 in an automobile in front of the Ten Pin Tavern on Westchester Avenue in the Bronx on July 31, 1957, but doubtless in a commendable endeavor to keep the proofs against the two defendants separate, and for the protection of DeLuca after the dismissal of the conspiracy count against him, Judge Levet instructed the jury that the evidence of the July 31, 1957 transaction could only be considered against DeLuca and that the rest of the evidence could be considered against Manfredi alone, despite the fact that, assuming a finding of the existence of a conspiracy and Manfredi's participation, the jury would have been entitled to consider against Manfredi the testimony concerning the July 31, 1957 transaction.
Manfredi or his wife owned a combination candy store and luncheonette on East 108th Street, between First and Second Avenues. The direct proof of Manfredi(s participation in the conspiracy relates to what a considerable number of government agents saw him do, either in the candy store or in front of it or driving in a new 1957 Oldsmobile with New Jersey plates, or walking in the streets in the vicinity of the candy store. The relationship between the various sales of large quantities of heroin and Manfredi was a matter of inference to be made after piecing together the testimony of various agents, who dealt with or watched DeSerra and Euphemia, with the testimony of other agents, located either on the roof of a building across the street from the candy store or on foot or in automobiles, who kept Manfredi under surveillance. When once the sequence of dates is understood and the coordination of the testimony of the various agents is made, the application of the law to the facts as the jury must be assumed to have found them is simplicity itself. Accordingly, we shall review the evidence of Manfredi's participation solely with the view of determining whether, disregarding the declarations and acts of DeSerra and Euphemia, there was sufficient basis for a finding by the jury that there was a conspiracy in the traffic of narcotics and that Manfredi knowingly participated in this conspiracy. The direct proof of the sales and purchases of narcotics was obviously competent and it was relevant and necessary to establish the existence of the conspiracy.
In a carefully prepared, thorough and lucid charge Judge Levet instructed the jury that Manfredihs 'connection with the conspiracy cannot be established by the acts or declarations of other defendants in his absence, ' that it 'must be established by evidence as to his own conduct, what he himself said or did'; and that only after finding that a conspiracy existed and that Manfredi was a knowing participant therein could the jury consider acts and statements of other members of the conspiracy in his absence.
The case is further simplified by the fact that no testimony was given by the other defendants who had pleaded guilty. And the number of sales of substantial quantities of heroin for large sums of money by DeSerra and Euphemia could scarcely leave any doubt in the mind of anyone familiar with this record that a widespread conspiracy in the traffic in narcotics existed. The real question was whether there was proof of Manfredi's participation, which his counsel vigorously denied.
Immediately after the sale of heroin to Giorgio on March 4, 1957 DeSerra and Papalardo went in a taxi to Leo's bar at 109th Street and Second Avenue where they remained for a few minutes. DeSerra then walked east on 108th Street, Manfredi came along in the Oldsmobile, passed DeSerra, parked the car and both came back and entered the candy store. Agent Daniel D. Moynihan saw them from 25 feet away. They talked
together but neither spoke to any of the six other persons in the store. If money passed Moynihan did not see it, as DeSerra was facing in the other direction toward Manfredi.
The next sale of heroin by DeSerra to Giorgio was on March 14, 1957. Again he went directly to Leo's bar and from there to 108th Street, where Manfredi was standing on the steps in front of the candy store. Manfredi went into the store followed by DeSerra and they conversed. This time DeSerra was facing Moynihan who saw him give money to Manfredi, who put the money in his pocket. DeSerra left without speaking to anyone else. Between March 4 and March 14 DeSerra and Manfredi were frequently seen in the neighborhood of the candy store but did not speak to one another.
On March 21, 1957 there was another sale of heroin by DeSerra to Giorgio, this time double the previous quantity and he received $750. DeSerra went to 109th Street and Second Avenue in a cab, started to walk east toward a social club near the corner, then turned back, walked south to 108th Street, then east to the candy store. He kept walking around until he was joined by Manfredi. When inside the candy store they saw Agent William Wong coming into the store and they left. As they walked up the street together Moynihan saw DeSerra hand money to Manfredi, who counted the money and put it in his pocket.
On March 28, 1957 there were two sales of heroin by different men in widely separated parts of the city and each promptly returned to Manfredi and handed him money. DeSerra made another sale to Giorgio in the subway at 7:15 P.M. and shortly after 8 o'clock Agent Edward T. Coyne saw DeSerra arrive at the candy store where Manfredi was standing outside. They spoke for a time and as Coyne walked past the candy store Manfredi was counting money which he placed in his pocket.
On the same day, March 28, Agent Anthony Mangiaracina made a purchase of heroin from Euphemia and the delivery and payment therefor were made in front of the apartment house where the Correggios lived at 1900 Longfellow Avenue in the Bronx. Mangiaracina and Euphemia had met in the street at 86th Street and Lexington Avenue and, after picking up Correggio in a candy store at 117th Street between Second and Third Avenues, Euphemia drove the three of them up to the Bronx in an Oldsmobile. Immediately after the delivery of the heroin and after Mangiaracina walked off in the direction of the subway, Agent Leonard Schrier in his car followed Euphemia in the Oldsmobile to the gas station at 108th Street and First Avenue and Euphemia parked his car. Euphemia stood for about five minutes in front of the funeral parlor on 108th Street and after about five minutes Manfredi came along. Schrier saw Euphemia counting money which he handed to Manfredi and...
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