280 F. 653 (2nd Cir. 1922), 165, Lucadamo v. United States

Docket Nº:165.
Citation:280 F. 653
Party Name:LUCADAMO et al. v. UNITED STATES.
Case Date:February 14, 1922
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 653

280 F. 653 (2nd Cir. 1922)




No. 165.

United States Court of Appeals, Second Circuit.

February 14, 1922

Page 654

Charles J. Buchner, of Brooklyn, N.Y., for plaintiffs in error Lucadamo and Damato.

Nash & Gottesman, of Brooklyn, N.Y. (Howard P. Nash and Sidney M. Gottesman, both of Brooklyn, N.Y., of counsel), for plaintiff in error D'Ambrosia.

Wallace E. J. Collins, U.S. Atty., of Jamaica, N.Y. (Henry J. Walsh, Asst. U.S. atty., of Brooklyn, N.Y., of counsel), for the United States.

Before HOUGH, MANTON, and MAYER, Circuit Judges.

MANTON, Circuit Judge.

By this indictment, the defendants below were charged with violation of section 37 of the United States Criminal Code (Comp. St. Sec. 10201). In substance, the charge is that they unlawfully, willfully, and knowingly conspired and agreed together and with other persons to commit an offense against the United States; that is, to violate the Act of December 17, 1914, as amended by sections 1006-1008 of the Revenue Act of 1918 (Comp. St. Ann. Supp. 1919, Secs. 6287g, 6287l, 6287r), in that they unlawfully sold and caused to be sold to one Milton Moffet 15 ounces of morphine, a derivative of opium. Four overt acts are charged in furtherance of the conspiracy: First, that the defendant Damato introduced Moffet, Spellman, and Meisenzahl to John Lavelle, for the purpose of bringing about a sale to Moffet; second, that John Lavelle introduced Spellman and Meisenzahl to Lucadamo and D'Ambrosia for the purpose of bringing about the sale; third, that the defendants below, Damato and Lucadamo, delivered the morphine to Moffet; fourth, that Lucadamo accepted from Moffet $300 for the morphine obtained by Moffet from Lucadamo and Damato. While writs of error were sued out by each of the defendants below, upon this appeal John and Gaetano Lavelle are not represented by counsel. Moffet and Meisenzahl were policemen, and Spellman was a drug addict. They were all engaged in detecting traffic of morphine and other drugs.

The defendants below urge here that the court below erred in denying their respective motions to dismiss the indictment or direct a verdict of acquittal, and this upon the ground that the evidence was insufficient to submit to the jury on the question of conspiracy to violate

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the federal Criminal Code. It will be necessary, therefore, to examine briefly the testimony adduced on behalf of the government.

Moffet testified that he used Spellman as an investigator, and with his fellow policeman, Meisenzahl, went to Hudson avenue, near Johnson street, in the borough of Brooklyn, city of New York, and there met Damato through the introduction of Spellman. Damato invited Moffet to go with him to a poolroom at No. 57 Flatbush Avenue Extension, where they were introduced to John Lavelle. Damato explained to Lavelle that Moffet, Meisenzahl, and Spellman were 'going to buy the stuff.' Lavelle stated that he had given 'the stuff to another fellow to peddle in Williamsburg,' but that he thought he could get hold of the fellow, and told them to wait in the poolroom until he and Damato returned. About an hour later, Lavelle came back alone and said everything was all right, and that they would hear from them in about 10 minutes. Lavelle left and came back, and said that Damato was on the telephone, and had asked for Dinny (meaning Spellman), and wanted Moffet to come right down. Moffet waited at the poolroom, but John Lavelle, Meisenzahl, and Spellman left the room. Then Gaetano Lavelle went over to Moffet and said, 'We got some good stuff,' and 'We handle good stuff.' He took out of his righthand shirt pocket a sample of white powder, which he showed to Moffet, and took Moffet to his own room upstairs. Moffet returned to the poolroom and remained there until Meisenzahl, Spellman, John Lavelle, and Damato returned. Moffet then said he didn't see 'why they couldn't make the sale there,' as they had promised, and they replied that 'the fellow didn't want to bring it there. ' Moffet agreed to go with them. John Lavelle told Gaetano Lavelle to 'mind the poolroom.' John Lavelle and Damato left the poolroom with Moffet, Meisenzahl, and Spellman. They went to the corner of Concord and Hudson avenues, where they met Lucadamo and D'Ambrosia. Lucadamo said he could not bring them all up to his sister's house, but that he would take only Spellman and Moffet. Later he agreed to let Moffet and Spellman and Meisenzahl come up to the house, and he requested D'Ambrosia and Lavelle to wait on the corner. However, D'Ambrosia followed up to the door, where Lucadamo again told him to remain downstairs. Lucadamo went into a room and brought out a cigar box filled with white powder. A dispute about the price ensued. Moffet stated that he understood from Spellman the price to be $15 an ounce. Lucadamo said Spellman told him $20 an ounce. Moffet said the price would not make any difference, but that he had brought $300, and he wanted Lucadamo to save all over the 15 ounces, as he would be back for it on the next day. The powder was weighed, and 15 ounces were poured out in the box that Spellman had. The box was wrapped in a newspaper and Moffet handed Lucadamo $300, which the latter counted. In the meantime Spellman left with the powder at Moffet's direction. After Lucadamo had counted the money, Moffet said he had given him $10 too much. Then Lucadamo took it from him to count it again, and, while counting it, three police officers came into the room and took the money out of Lucadamo's hands, and, after comparing the marks on the money with the slip...

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