290 F.2d 51 (2nd Cir. 1960), 206, United States v. Santore

Docket Nº:206, 25330.
Citation:290 F.2d 51
Party Name:UNITED STATES of America, Appellee, v. James SANTORE, Peter Casella, Emilio D'Aria, James Leo Massi, Joseph Paul Lo Piccolo, Anthony Edward Tarlentino, Nicholas Narducci, and Lorenzo Orlando, Appellants. No. 206, Docket 25330. Argued Jan. 22, April 7, April 9, 1959. Argued March 16, 1960. Decided Oct. 2, 1959. Upon Rehearing In Banc No. 380, Docket
Case Date:November 16, 1960
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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290 F.2d 51 (2nd Cir. 1960)

UNITED STATES of America, Appellee,


James SANTORE, Peter Casella, Emilio D'Aria, James Leo Massi, Joseph Paul Lo Piccolo, Anthony Edward Tarlentino, Nicholas Narducci, and Lorenzo Orlando, Appellants.

Nos. 206, 25330.

United States Court of Appeals, Second Circuit.

November 16, 1960

Argued Jan. 22, April 7, April 9, 1959.

Argued March 16, 1960.

Decided Oct. 2, 1959.

Upon Rehearing In Banc No. 380, Docket 25330

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[Copyrighted Material Omitted]

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Observations of detective who saw defendant leave his house with known narcotics addict, and drive for portion of block on wrong side of street before stopping and making throwing motion toward street and who stopped defendant because of traffic violation and then obtained eyedropper containing fluid with opium derivative in area of the throwing motion constituted reliable basis for issuance of warrant to search defendant's house. U.S.C.A.Const. Amend. 4.

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Arthur H. Christy, U.S. Atty., Southern District of New York, New York City (William Desmond Walsh, Spec. Asst. U.S. Atty., Kevin Thomas Duffy and George I. Gordon, Asst. U.S. Attys., New York City, of counsel), for appellee on original hearing.

S. Hazard Gillespie, Jr., U.S. Atty., (Morton S. Robson, Chief Asst. U.S. Atty., Kevin Thomas Duffy and George I. Gordon, Asst. U.S. Attys., New York City of counsel), for appellee on rehearing.

Thomas A. Shaw, Jr., Florence M. Kelley, New York City, Harry A. Phillips, Jr., New York City, of counsel for appellants Santore and Orlando.

Jacob Kossman, Philadelphia, Pa., for appellant Casella, on original hearing.

Sanford Shmukler, Philadelphia, Pa., for appellant Casella, on rehearing.

Curran, Mahoney, Cohn & Stim, New York City (Allen S. Stim and Menahem Stim, New York City, of counsel), for appellants D'Aria and Massi.

Maurice Edelbaum, New York City (Chester E. Kleinberg, New York City, of counsel), for appellant Lo Piccolo.

Stuart H. Johnson, Jr., New York City, Florence M. Kelley, New York City, Anthony F. Marra, New York City, for appellants Tarlentino and Narducci.

Opinions of the Panel

Before HAND and WATERMAN, Circuit Judges, and BYERS, District Judge.

WATERMAN, Circuit Judge.

On February 5, 1958 an indictment was filed in the Southern District of New York charging all of the appellants herein and three others with violations of 21 U.S.C.A. § 173 1 and § 174. 2 Count One of the five count indictment alleged that Peter Casella, James Santore, Emilio D'Aria and James Leo Massi sold 17 ounces, 161 grains of heroin on October 21, 1957. Count Two charged Peter

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Casella, Joseph Paul Lo Piccolo, James Santore and Ignazio Lawrence Orlando with the sale of 16 ounces, 390 grains of heroin on December 11, 1957. In the third count Peter Casella and James Santore were accused of selling 9 ounces, 197 grains of smoking opium on December 19, 1957. Nicholas Narducci, Anthony Napolitano, Ignazio Lawrence Orlando, Anthony Edward Tarlentino and Nicholas Tolentino were charged in Count Four with the possession on January 21, 1958 of 6 pounds, 6 ounces, 302 grains of heroin. And the fifth and last count charged all of the above and Lorenzo Orlando with conspiring from September 1957 through January 1958 to conceal, possess, buy, and sell a quantity of narcotic drugs, the exact amount and nature thereof being unknown. The indictment also listed thirty-two overt acts alleged to have been undertaken in pursuance of the conspiracy charged in Count Five.

Anthony Napolitano and Nicholas Tolentino were not apprehended. The remaining indictees waived a jury and went to trial on June 3, 1958 before a district judge sitting without jury. On July 3, 1958, after seventeen days of trial, the court found each of the defendants guilty as charged. All but Ignazio Lawrence Orlando are contesting their convictions on this appeal.

The facts of this case are lengthy and involved, spelling out as they do the sordid story of large scale trafficking in narcotics, but as the appellants contend that there was insufficient evidence to support their convictions, and as Santore presents to us the defense of entrapment, rejected below, we must go into the facts in some detail. The district court accepted the testimony of the Government's witnesses throughout, even where their testimony was contradicted by defense witnesses, and since from our perusal of the record that acceptance seems reasonable enough, we state the facts as they were presented at trial by the Government.

Michael Picini, an agent of the Federal Bureau of Narcotics, first met Santore on February 26, 1957 at the 39th Ward Independent Republican Club in Philadelphia, Pennsylvania. Picini introduced himself as an out-of-town narcotics peddler, mentioned the name of a friend of Santore in Baltimore, and expressed a desire to buy a sample quarter kilo of heroin. After at first stating they 'his people wouldn't sell less than a half kilo, ' Santore finally fixed a price of $3, 500 for a quarter kilo and told Picini to let him know when he was ready to buy. Subsequently, at a second meeting on March 4, 1957, Santore reintroduced the subject of narcotics by asking Picini if he was still interested in purchasing heroin.

On March 8, Santore introduced Picini to Frank Valli, a Philadelphia drug trafficker. At that time, however, no agreement to purchase was made. On March 20, Picini introduced another agent, Eugene Marshall, to Santore and Valli, describing him as his partner. During the evening of the 21st arrangements were made for the purchase of six ounces of heroin, and the agents gave Santore an agreed price of $3, 150. Two days later, following Santore's instructions, the agents picked up the drugs. A second sale consisting of one-sixth of a kilo of heroin was made on April 3.

After the second sale the agents told Santore that they were dissatisfied with the quality of the drugs they were receiving, and he thereupon introduced them to another local trafficker, Frank Malfi. Following this meeting two purchases of heroin, one-quarter of a kilo on July 25 and one-half kilo on August 22, were made through Santore and Malfi.

Picini and Marshall advised Santore that they still were not satisfied with the drugs being supplied them by Philadelphia peddlers, and insisted that Santore take them directly to his New York 'connection.' Santore did not respond to the agents' demand immediately but finally offered to make the introduction in return for $2, 000. On October 16, 1957, Santore introduced the agents to Peter Casella, who offered to supply them with any amount of pure heroin they desired. He stated that this pure heroin could be supplied in 'amounts anywhere from half

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a kilo to a ton * * * with the quality just as it comes off the boat' and he set its price at $11, 000 a kilo. After some discussion Casella instructed the agents to meet him on October 21st at the Hotel Lexington in New York City. The agents were to park their automobile in the parking lot across the street from the hotel and the heroin was to be placed in it.

About 4:30 P.M. on October 21, Santore and Casella were seen conversing with Emilio D'Aria in front of the Hotel Lexington. After a brief discussion Santore and D'Aria entered D'Aria's car and drove off together.

At 6:00 P.M. Marshall arrived at the parking lot and was met by Santore who gave him a package from his pocket containing one-half of a kilo of pure heroin. After Marshall placed the package in the trunk of his car, he informed Santore that he was then unable to pay for it because Picini, who had the funds, was in a Trenton hospital. This story was repeated to Casella in the hotel cocktail lounge. He at first insisted that the drugs would have to be removed from the car and returned to him, but, after the problem was discussed over dinner at a restaurant, Casella finally agreed that Marshall could keep the drugs on consignment if Casella's 'New York partners' gave their consent to it.

Casella left Marshall and Santore to wait while he went to see his partners, and was followed to the Paddock Bar on Broadway. He seated himself at the bar and a government agent sat down one stool away. D'Aria and James Leo Massi then entered the bar, joined Casella, and engaged in conversation with him.

After an initial greeting, Casella said: 'I don't have the money. One of them got sick and his partner came alone.' D'Aria then asked, 'Where is the package now?'-- and Casella replied, 'It's in the trunk of their car on the East Side. They're good for the money.' There was still some hesitation on Massi's part, and Casella then stated, 'Look, they're going to give me the money tomorrow. You come down on Wednesday and you'll get your money.' After the three had apparently agreed to Casella's plan, the seated agent got up and left the bar.

After some additional twenty minutes of conversation Casella, still under surveillance, left the Paddock Bar and returned to Marshall and Santore. He told them that he had conviced his partners that Marshall could keep the package, but that full payment for it must be had by October 23 when the partners were going to Philadelphia for their share of the purchase price.

October 23 Marshall met Santore in Philadelphia and told him that in order to get the money he and Casella would have to accompany Marshall to where Picini was staying, at the King Kole Motel in New Jersey. The agent and Santore then picked up Casella at a flower shop in Philadelphia. At first Casella did not want to leave with them, for he was expecting the arrival of his partners from New York, but he finally agreed, and the three drove to the King Kole Motel. There...

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