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
 
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Page 420

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

UNITED STATES of America, Appellee,

v.

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

Page 421

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...

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