378 F.2d 420 (2nd Cir. 1967), 442, United States v. Carbone

Docket Nº:442, 31045.
Citation:378 F.2d 420
Party Name:UNITED STATES of America, Appellee, v. Michael CARBONE and Louis Macchiarelli, Appellants.
Case Date:May 29, 1967
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 420

378 F.2d 420 (2nd Cir. 1967)

UNITED STATES of America, Appellee,


Michael CARBONE and Louis Macchiarelli, Appellants.

No. 442, 31045.

United States Court of Appeals, Second Circuit.

May 29, 1967

Argued May 5, 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 charge that on or about July 6, 1964, Carbone and Macchiarelli along with one william lowe 1 wilfully and knowingly received, concealed, sold and facilitated the transportation, concealment and sale of 3.600 grams of heroin imported and brought

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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...

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