370 F.2d 751 (2nd Cir. 1967), 188, United States v. Beigel
|Docket Nº:||188, 30678.|
|Citation:||370 F.2d 751|
|Party Name:||UNITED STATES of America, Appellee, v. Alvin BEIGEL, Joseph Lapi and Anthony Verzino, Appellants.|
|Case Date:||January 09, 1967|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued Nov. 18, 1966.
[Copyrighted Material Omitted]
Eugene Feldman, New York City (Jaffe & Feldman, New York City, on the brief), for appellant Beigel.
Frank A. Lopez, Brooklyn, N.Y. (Rosenberg & Lopez, Brooklyn, N.Y., on the brief), for appellant Lapi.
Joseph I. Stone, New York City (Stone & Diller, New York City, on the brief), for appellant Verzino.
Andrew M. Lawler, Jr., New York City (Robert M. Morgenthau, U.S. Atty. for Southern Dist. of New York, Lars I. Kulleseid and John E. Sprizzo, Asst. U.S. Attys., on the brief), for appellee.
Before WATERMAN, MOORE and HAYS, Circuit Judges,
HAYS, Circuit Judge:
Appellants Alvin Beigel, Joseph Lapi and Anthony Verzino were convicted of violating 21 U.S.C. §§ 173, 174 1 and conspiring to violate those sections as well as 26 U.S.C. § 4705(a). 2 The case was tried to the court sitting without a jury and the opinion of the trial judge is reported at 254 F.Supp. 923 (S.D.N.Y.1966). Two other defendants were charged in the same indictment. One, Anthony Cutillo, was acquitted. The other, Vincent Soviero, has not yet been apprehended and the counts against him were severed before trial. The principal contention of all three appellants is that certain contraband introduced in evidence was illegally seized from Beigel and should have been suppressed. Lapi and Verzino also challenge the sufficiency of the evidence on which their convictions are based and Verzino contends that he was denied his constitutional right to a speedy trial. We find no error and affirm the convictions.
In August, 1962 agents of the Federal Bureau of Narcotics and detectives of the New York City Narcotics Squad began surveillance of the activities of appellants.
On February 5, 1963 the following conversation between Verzino and an unidentified John Doe was overheard:
Verzino: I told him $5500, no less.
John Doe: You know you have to be careful in this business.
Verzino: I feel sorry for Louis.
John Doe: Louis who?
Verzino: Louis Gold, that Puerto Rican that got jammed up. I took care of him before he got busted.
Soviero then arrived and John Doe asked him, 'Is it in the same place, in the ashtray?' Soviero replied, 'Yes, right behind the ashtray,' whereupon Doe said, 'I will see you tomorrow with the money.'
A short time later Doe entered a parked car a few blocks away, reached down under the dashboard and then drove away. The other two men went to a nearby by bar where the following conversation was overheard:
Verzino: For that guy we charge 7500.
Soviero: That's right. Did Al mix the stuff good?
Verzino: Yes, he mixed it three to one and it's still dynamite.
In the argot of narcotic traffickers the phrase 'three to one' indicates that the heroin ('stuff') has been diluted three parts of adulterant to each part of heroin and 'dynamite' indicates the high quality of the drug.
On February 21, 1963 Verzino and Sovieri were observed with appellant Alvin Beigel at the Manhattan coffee shop where the February 5th meeting had occurred. Shortly after they left, they were joined by the John Doe who had participated in the earlier meeting. Verzino went with Doe to a parked car, opened the trunk and handed Doe a package. Beigel then drove off in a car identified as the one which Doe had driven on February 5th. Later that evening Verzino, Soviero and Beigel were again seen engaged in a brief conversation.
Federal agents and New York City detectives continued surveillance of all the defendants during the next several days. On February 28th, Verzino and Soviero were again overheard in a New York bar:
Soviero: I called his place and left a message for him in case he calls. I told him to stay where he is and Al will meet him and deliver-- bring the stuff.
Verzino: Suppose he leaves?
Soviero: He will probably go to his place and she'll tell him to go back.
Verzino: How come Al is late?
Soviero: He had that delivery at 8 o'clock.
About an hour and a half later Beigel, whose activities had been under fairly constant observation that day, joined Soviero and Verzino.
On March 14th the agents followed Beigel who was driving a rented 1963 Rambler, to 37-41 79th Street in Queens; by tracing a fluorescent powder that they had placed on the door handle of the Rambler, they determined that Beigel had entered apartment 2C.
At about 7:30 on the evening of March 21, 1963 the government agents observed another Rambler automobile, parked on York Avenue in Manhattan between 60th and 61st Streets. Beigel had also rented this car. Soon thereafter Verzino and Soviero were seen driving down York Avenue. As their car approached the parked Rambler it came to an almost complete stop, and they were seen to look in the direction of the Rambler before continuing on their way.
At about 8:30 P.M., appellant Lapi entered the Rambler and drove it, taking a circuitous route, to 58th Street off Sutton Place. He proceeded on foot to the Cheer Club, located on 2d Avenue between 57th and 58th Streets and was observed for the next few hours walking in and out of the Club as though looking for someone. Shortly after midnight Lapi conversed briefly with the driver of a car parked nearby and they entered the back seat. The car was driven to the vicinity of the parked Rambler, where the driver was observed handing a brown paper bag
to Lapi who walked over to the Rambler and placed the package in it.
Surveillance was maintained on the Rambler and at approximately 2:00 A.M. Beigel was observed to enter the car and drive off. He parked the car near 37-41 79th Street, got out and went into that building carrying the brown paper bag that the agents had seen Lapi place in the Rambler earlier. When Beigel had inserted his key in the lock of the door to apartment 2C and was about to enter, he was placed under arrest. The brown paper bag contained 2920 grams of heroin. In the apartment the officers found a suitcase containing two kilograms of heroin and an assortment of narcotic cutting and packaging equipment.
Beigel contends that the contraband was illegally seized and should have been suppressed; Lapi and Verzino failed to raise this objection below but join in Beigel's argument on this appeal.
Both Judge Palmieri, who conducted a pretrial suppression hearing, and Judge Weinfeld, who presided at the trial, found that Beigel's arrest was lawful since the activities which the participating officers, federal and state, had observed and the conversation which had been overheard provided ample probable cause for believing that Beigel had committed, and was committing, a felony. See 26 U.S.C. § 7607(2); New York Code Crim.Pro. § 177. The search of Beigel's person and the consequent seizure of the brown bag containing heroin were incidental to this lawful arrest and therefore valid. See, e.g., Draper v. United States, 358 U.S. 307, 310-311, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); DiBella v. United States, 284 F.2d 897 (2d Cir. 1960), rev'd on other grounds, 369 U.S. 121,...
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