319 F.2d 916 (2nd Cir. 1963), 27733, United States v. Bentvena

Docket Nº:27733.
Citation:319 F.2d 916
Party Name:UNITED STATES of America, Appellee, v. William BENTVENA et al., Defendants-Appellants.
Case Date:June 13, 1963
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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319 F.2d 916 (2nd Cir. 1963)

UNITED STATES of America, Appellee,

v.

William BENTVENA et al., Defendants-Appellants.

No. 27733.

United States Court of Appeals, Second Circuit.

June 13, 1963

Argued Jan. 30, 1963.

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Jerome Lewis, Brooklyn, N.Y., for appellants, Bentvona, Carmine Panico, Salvatore Panico and Struzzieri.

Harris B. Steinberg, New York City, (Edward J. Bloustein, New York City, of counsel), for appellant, Di Pietro.

Nathan Kestnbaum, New York City, for appellant, Fernandez.

O. John Rogge, New York City, and Frances Kahn, New York City, for appellant, Galante.

Abraham Glasser, New York City, for appellants, Loicano (Sylvester Cosentino, New York City, on the brief), and Sciremammano (George Todaro, New York City, on the brief).

Constantine N. Katsoris, New York City, for appellant, Mancino.

William R. Luney, New York City, for appellant, Mirra.

Richard V. Giordano, New York City, for appellant, Monastersky.

Jacob Kossman, Philadelphia, Penn., and Albert J. Krieger, New York City, for appellant, Ormento.

Jonathan L. Rosner and Arthur I. Rosett, Asst. U.S. Attys. (Robert M. Morgenthau, U.S. Atty., for the Southern Dist. of New York, William M. Tendy and Arnold N. Enker, Asst. U.S. Attys., on the brief), for appellee.

Before MOORE, SMITH and HAYS, Circuit Judges.

MOORE, Circuit Judge.

This is an appeal by thirteen defendants from their convictions for violations of the federal narcotics laws, 21 U.S.C. §§ 173, 174. The indictment, filed on May 3, 1960, contained eight counts, and named twenty-nine defendants. Counts one through seven charged various defendants with substantive violations; count eight charged all of those named with conspiracy to violate the narcotics law. The trial from which this appeal is prosecuted was the second trial on this indictment. The first trial, before Judge Levet and a jury, ended in the declaration of a mistrial after a trial of six months.

This retrial of fourteen of the defendants began before Judge MacMahon and a jury on April 2, 1962, on counts four and five, charging sales of narcotic drugs, and count eight charging a conspiracy to import and distribute drugs. 1 On June 19, 1962, the trial court granted a motion for judgment of acquittal as to the defendant, Frank Mari, and on June 25, 1962, the jury returned a verdict of guilty as to the thirteen appellants

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on all counts in which they were named. Sentencing took place on July 10, 1962. 2

Appellants, together with their co-defendants and co-conspirators, were charged with a conspiracy to import large amounts of narcotic drugs into the United States from Canada, and to dilute and distribute these drugs after their importation. The principal government witness, Edward Lawton Smith, and other government witnesses, described in some detail the workings of the conspiracy and the functional division of labor within the organization. In skeleton outline the conspiracy consisted of a group of Canadians, headed by Guiseppe 'Pepe' Cotroni, who handled the exportation of the drugs from Canada. Couriers brought the narcotics across the Canadian-United States border and into the New York metropolitan area. Members of the conspiracy manned centers in the New York metropolitan area where they received the drugs from the couriers and diluted and packaged them. Distributors finally disposed of the drugs through various selling outlets. Overall responsibility for the continuing operation rested in its 'chief executive', the appellant Carmine Galante.

THE CONSPIRACY

The April 1957 Montreal Meeting and Narcotics Importation

In late April 1957, Smith, a Canadian with underworld connections, met the appellant Mancino in Montreal. Mancino asked Smith to make a 'run' into New York with him and Smith agreed. The following day Mancino took Smith to an apartment in Montreal where they met the appellant Galante, the severed defendants Giglio and Stepanoff, and Frank Cotroni, Vic Cotroni, and a person identified only as 'Angelo'. Galante picked up a valise, put it on the coffee table, and opened it. Mancino examined its contents, which were clear plastic bags containing a white powder. As Smith and Mancino were leaving with the valise, they encountered the severed defendants, Guiseppe 'Pepe' Cotroni and Vecchio. Smith and Mancino drove to New York to Frank's Bar & Grill in Brooklyn where Mancino took the valise of narcotics and Smith returned to Montreal.

In late February or early March, 1958, Smith again came into New York City and drove to Frank's Bar & Grill where he met Mancino, Vecchio, and 'Angelo'. Mancino asked Smith if he would drive over to Manhattan and back. Smith agreed and Mancino picked up a package from Vecchio's car and directed Smith to the Vivere, a bar located on the lower east side. There Mancino left the car, rejoined Smith shortly, and they drove back to Brooklyn.

The 'Route' Deliveries

During the ensuing months, Smith spoke with Mancino almost daily and there followed at weekly intervals a series of at least five 'route' deliveries of narcotics throughout the Metropolitan area. On each of these occasions Smith met Mancino, Vecchio and 'Angelo' at Frank's Bar & Grill in Brooklyn. Vecchio would remove a cardboard suitbox from the trunk of his car and give it to Mancino who would take it upstairs to his apartment and return in a few minutes carrying a valise. Prior to one 'route' delivery, Smith accompanied Mancino to the latter's apartment with the suitbox and saw the nature of its contents, cellophane bags containing white powder. On this occasion, Smith saw Mancino wrap each of the bags in brown wrapping paper and mark them

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with the names of the 'drops' along the route. Mancino then put the packages in a valise and an empty shoebox and he and Smith embarked on their route.

The first stop on the route was the Vivere. After the first delivery to the Vivere, Smith accompanied Mancino inot the bar, where he observed Mancino put the valise on the table, take out a package and give it to DiPietro, who in turn gave it to the severed defendant Gellman.

The second stop on the run was the Squeez-Inn, a bar on East 4th Street in Manhattan. On at least three occasions, the package was given to appellant Sciremammano who carried it to the back of the bar. Another time the shoebox containing the narcotics was given to the defendant Polizanno 3 in the presence of the severed Canadian defendant Stepanoff.

The fourth stop 4 was the 1717 Club, a bar in Brooklyn operated by appellants Salvatore and Carmine Panico. There the package would be delivered to one of the brothers, both of whom would take it to the kitchen in the back of the bar.

After the stop at the 1717 Club, Smith would return with Mancino to Frank's Bar & Grill, where Smith would remain while Mancino made a delivery to 'Rocco up on the Hill'. Mancino later introduced the severed defendant Sancinella to Smith as 'Rocco up on the Hill', and the appellant Angelo Loicano as 'his partner, Puggy'. In Loicano's presence, Sancinella asked Smith to make some runs from Canada for them. When Smith declined this offer, Loicano told him that he could make $100,000 to $140,000 a year in this work and that Smith should think it over.

In addition to these regular stops on the route, on three occasions Smith drove Mancino to a Manhattan hotel where packages were given to the severed defendant Indiviglio.

DiPietro and Mancino meet Cotroni in Canada

Because of a dispute over DiPietro's failure to make prompt payment in full to the Canadian group, DiPietro, late in April 1958, invited Smith to accompany him on a trip to Canada. A day or two later, Smith, DiPietro, Mancino, 'Angelo,' and one Frank Randazzo drove to Canada. In Montreal, smith arranged a meeting between Cotroni, Giglio and DiPietro. After DiPietro paid Cotroni $17,000, Giglio informed DiPietro that he was now on a 'pay as you go gasis.' On the following evening, Mancino, Randazzo, 'Angelo' and Smith drove back to New York City with a load of narcotics and Smith and Mancino made deliveries to the Vivere, the Squeez-Inn, the hotel in Coney Island, and the 1717 Club. The Ormento Group

Between May 16 and May 21, 1958, at the Vivere, DiPietro introduced Smith to appellant Anthony Mirra. On the following evening at Mirra's request, Smith went to Johnny's Keyboard, a bar on Lexington Avenue between 56th and 57th Streets and there met Mirra, the severed defendant Petillo, and appellant Joseph Fernandez. During the next few days, the four of them spent a great deal of time together. In late May 1958, Smith and Petillo drove to the lower east side to Jay's Bar on Houston Street, where Petillo introduced Smith to three men-- 'Angie', 'Bootsie' and 'Chalutz' the severed defendants Angelo Tuminaro, Anthony DiPasqua and Charles Gagliadatto, respectively. During the meeting, 'Angie' asked Smith to make 'runs' from Canada for them and when Smith declined 'Angie' guaranteed that he would make $140,000 a year in this line.

A few days later, Mirra and Smith went to a restaurant, Marino's, where they met appellant John Ormento, who also asked why Smith was turning down 'these offers we have been making to

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you.' In the early part of June, Smith again went to Jay's Bar with Petillo, where they met 'Bootsie', 'Angie' and 'Chalutz.' 'Angie' again pressed him to make runs from Canada and when refused asked him about the trip he had made to Canada with DiPietro, and asked whether he had brought back a 'load.' When Smith...

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