United States v. Carbone

• Decision Date: 29 May 1967
• Docket Number: No. 442,Docket 31045.,442
• Parties: UNITED STATES of America, Appellee, v. Michael CARBONE and Louis Macchiarelli, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

378 F.2d 420 (1967)

UNITED STATES of America, Appellee, v. Michael CARBONE and Louis Macchiarelli, Appellants.

No. 442, Docket 31045.

United States Court of Appeals Second Circuit.

Argued May 5, 1967.

Decided May 29, 1967.

Robert Kasanof, New York City (Albert J. Krieger, New York City), for appellants.

Elkan Abramowitz, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty., for Southern Dist. of New York, Robert G. Morvillo, Asst. U. S. Atty. of counsel), for appellee.

Before WATERMAN, FRIENDLY and FEINBERG, Circuit Judges.

FRIENDLY, Circuit Judge.

In this appeal from a narcotics conviction under 21 U.S.C. §§ 173-74, reversal is urged not on the usual grounds of insufficiency, entrapment or error in the charge, but solely on the basis of inconsistency in the verdict — and this despite the seemingly insurmountable hurdle of Mr. Justice Holmes' well-known opinion in Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932). While the arguments here presented do credit to the ingenuity of counsel, we are constrained to reject them and affirm the convictions.

The indictment, in the District Court for the Southern District of New York, had two counts. The first charged that on or about July 6, 1964, Carbone and Macchiarelli along with one William Lowe¹ wilfully and knowingly received, concealed, sold and facilitated the transportation, concealment and sale of 3.600 grams of heroin imported and brought into the United States contrary to law, in violation of 21 U.S.C. §§ 173-74. The second count charged a conspiracy to violate the same sections, the overt acts being Lowe's meeting a man in the Bronx on July 6 and Carbone's and Macchiarelli's driving an automobile in the Bronx on July 7 and being seated in one there on July 8.

The Government's evidence was presented through "Cadillac Willie" Lowe, Narcotics Agent Peterson, and two surveilling agents. In summary their story was this: On July 6, 1964, as a result of Peterson's soliciting Lowe to sell heroin and asking for a sample, Lowe agreed to get in touch with his "people" and meet Peterson later that evening at a bar on East 139th Street in the Bronx. After a phone conversation with Macchiarelli, Lowe drove to the bar, parked his Cadillac in front of it, entered Peterson's already parked car for a short conversation, went into the bar and phoned Macchiarelli, and then returned to Peterson's car and told him the sample would shortly arrive. Soon afterward appellants drove up to the bar in an Oldsmobile, with Carbone at the wheel; Macchiarelli got out and placed a sample of heroin in Lowe's Cadillac. During Macchiarelli's absence Lowe entered the Oldsmobile and discussed the technique of sample-giving with Carbone; later he went into matters of price and delivery with both. Upon his return to Peterson's car Lowe pointed to appellants and told Peterson "these were his people." Peterson and Lowe then circled the block in Peterson's car, Lowe went to his Cadillac, retrieved the sample and asked Peterson to call him at the bar after testing it.² Peterson did this, expressing satisfaction with the quality but complaining about the price — $3600 for a quarter kilo. After a talk between Lowe and Macchiarelli, Peterson met Lowe the next evening at the bar and said he was $1500 short on the price but expected the money by midnight. Soon afterwards Carbone drove up and was informed of the slight hitch; he reported this to Macchiarelli at a "club" some blocks away. Around midnight the four met at the bar. Lowe informed appellants that Peterson now had the money and there was a protracted discussion about delivery methods, appellants insisting that this take place in Peterson's car. When Peterson refused, the transaction aborted.³ After deliberating for nearly a full day the jury acquitted appellants on the substantive count relating to the sample but convicted them on the charge of conspiracy.

The sole claim on appeal concerns the alleged inconsistency of the verdict; we are told at one point in the brief that reversal on that score "is not only harmonious with, but required by the holding of Dunn v. United States, 284 U.S. 390 52 S.Ct. 189 (1932), as adumbrated by Sealfon v. United States, 332 U.S. 575 68 S.Ct. 237, 92 L.Ed. 180 (1948)" and at another that Dunn should "be overruled as unsound," a task somewhat beyond our powers even if we had the will. The first branch of the argument seizes on the Dunn opinion's recital of the Government's contention that acquittal on the possession and sale counts was not necessarily inconsistent with the conviction on the nuisance count, 284 U.S. at 392, 393, 52 S.Ct. at 190.⁴ However, the opinion rested not on the ground of lack of inconsistency, but on the declared principle that "Consistency in the verdict is not necessary", 284 U. S. at 393, 52 S.Ct. at 190. This was underscored by the approving quotation of Steckler v. United States, 7 F.2d 59, 60 (2 Cir. 1925), where in upholding a verdict Judge Learned Hand had been at pains to show that "a plain inconsistency" existed.⁵

The other branch of the argument picks up the immediately succeeding sentences in the Dunn opinion:

"Each count in an indictment is regarded as if it was a separate indictment. Latham v. The Queen, 5 Best & Smith, 635, 642, 643, Selvester v. United States, 170 U.S. 262 18 S.Ct. 580, 42 L.Ed. 1029. If separate indictments had been presented against the defendant for possession and for maintenance of a nuisance, and had been separately tried, the same evidence being offered in support of each, an acquittal on one could not be pleaded as res judicata of the other. Where the offenses are separately charged in the counts of a single indictment the same rule must hold."

But, says counsel, where separate indictments are separately tried, an acquittal on one can be pleaded as res judicata of issues necessarily determined, as was later held in Sealfon in accord with Mr. Justice Holmes' earlier decision in United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161 (1916). Hence if "in the counts of a single indictment the same rule must hold," the acquittal on the substantive count would be conclusive with respect to the conspiracy count and the...