United States v. Desist, 313

• Decision Date: 13 October 1967
• Docket Number: No. 313,Docket 30849.,313
• Citation: 384 F.2d 889
• Parties: UNITED STATES of America, Appellee, v. Samuel DESIST, Frank Dioguardi, Jean Claude LeFranc, Jean Nebbia and Anthony Sutera, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

384 F.2d 889 (1967)

UNITED STATES of America, Appellee, v. Samuel DESIST, Frank Dioguardi, Jean Claude LeFranc, Jean Nebbia and Anthony Sutera, Appellants.

No. 313, Docket 30849.

United States Court of Appeals Second Circuit.

Originally Argued January 19, 1967.

Remanded for Further Limited Hearing May 29, 1967.

Decided October 13, 1967.

Irving Younger, New York City, for appellant Desist.

Fred A. Jones, Jr., Miami, Fla., for appellants Dioguardi, Sutera, LeFranc and Nebbia.

David M. Markowitz, New York City, for appellant LeFranc.

Arnold C. Stream, New York City, for appellant Nebbia.

Abraham Glasser, New York City, of counsel for appellants Dioguardi, Sutera, LeFranc and Nebbia.

Otto G. Obermaier, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty., for the Southern District of New York, Michael W. Mitchell, William M. Tendy, John R. Bartels, Jr., John R. Wing, Asst. U. S. Attys., on the brief), for appellee.

Before MEDINA, ANDERSON and FEINBERG, Circuit Judges.

FEINBERG, Circuit Judge:

The five appellants were convicted under a one-count indictment charging them with a conspiracy to import narcotic drugs into the United States from France. 21 U.S.C. §§ 173, 174. The case involved what is alleged to be the largest single seizure of pure heroin in the United States, valued at sums as high as $100,000,000, and totalling some 209 pounds. The trial, lasting four weeks, was in the Southern District of New York before Judge Palmieri and a jury. We affirm all five convictions for the reasons stated below.¹

I. The Facts

The following statement of facts is what the jury could have found, viewing the evidence in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). It was presented to the jury primarily through the testimony of co-defendant Herman Conder² and various government agents.

Early in 1963, Conder, a United States Army Warrant Officer, met appellant Samuel Desist, a Major; Conder was then looking for accommodations for his wife and children, who were soon to join him in France. Conder rented one of Desist's apartments, and thereafter the two became friendly. In July 1965, when Conder was preparing to return to the United States, Desist offered to pay him $10,000 if Conder would ship a food freezer as part of his household goods. Desist told Conder not to tell the latter's wife because "women can't keep a secret." Conder agreed, and a used freezer was delivered to Conder, according to plan. At Desist's instruction, Conder took the freezer apart one day, left it in the storage area of his apartment, and found it completely reassembled the next day. Secreted into it were 190 plastic bags, each holding an average of a half-kilogram (1.1 pounds) of pure heroin.

In September 1965, the freezer was shipped by Conder, along with his other goods, to Fort Benning, Georgia; ten days later Conder and his family left for the United States. Once at Fort Benning, which is in the Columbus, Georgia area, Conder moved into a house trailer. The freezer arrived in the third week of November; Conder immediately communicated this fact to Desist. On December 12, Desist flew from Paris to New York and called Conder, arranging a visit at the end of the week. Thus, the initial phase of the conspiracy — importing heroin — was successfully accomplished. There remained the efforts of Desist, with two other French exporters — Jean Claude LeFranc and Jean Nebbia — to dispose of the narcotics in this country.

On December 11, appellant Nebbia had left Paris on a plane bound for New York; five days later he went, together with appellant LeFranc, to an airline ticket counter in New York where LeFranc made a through reservation for Nebbia for Columbus, Georgia. LeFranc said that a car rented in Columbus would be used for driving to Miami. The night of December 16, Desist met with Nebbia in the Waldorf-Astoria Hotel, Manhattan. Desist said he would fly to Rochester "to see the boss" and from there by way of Atlanta to Columbus, where he would pay his contact "20 bills" for the merchandise. Nebbia was reassured that the contact was well-known to Desist; Desist said everything would be ready for Nebbia so "the transfer can be made automatically." There was an inquiry about suitcases, and Desist said it would take three or four hours to make the "transfer." Desist referred to a trailer, and the "Black Angus," a motel at which Conder had made a reservation for Desist; Nebbia said he would meet Desist in Columbus and cautioned about risks. On December 17, Nebbia and LeFranc went to buy a map together. Back at the hotel room LeFranc said he would go to Columbus from Atlanta and told Nebbia to get a car; they would purchase the suitcases. A trailer was mentioned in this conversation also.

While thus making sure of obtaining the heroin, Nebbia and LeFranc were simultaneously arranging to dispose of it. Also on December 17, appellants Frank Dioguardi and Anthony Sutera flew up to New York from Miami; in the afternoon they registered under false names at a Manhattan motel. That night LeFranc came out of a Manhattan bar and stood on the sidewalk, and Dioguardi and Sutera pulled up in a rented car and double-parked. LeFranc approached the car, had a short conversation, and entered it; the car was parked and the three went to Adano's Restaurant a few blocks away.

LeFranc told his companions he was looking forward to Atlanta, which was a cleaner place than New York, and said he would enjoy Miami; Sutera agreed with this observation and said he was also looking forward to returning to Miami. Dioguardi made a telephone call, during which he said that he was "with the man now and they were leaving for Atlanta in the morning," and that he expected to see him Monday or Tuesday the following week. Rejoining his companions, Dioguardi said everything was "o. k. * * * on my end," but there were several problems. Sutera said he and Dioguardi had not yet seen anything, and LeFranc replied that he had explained this to his friend who had assured him that "it is here already." LeFranc said that all that remained was to go down there, pick it up, and make the transfer to Dioguardi and Sutera. Dioguardi said that LeFranc's "friend" apparently didn't trust anyone; they too wanted to be careful, but at the same time wanted to know more about how the deal would come off. Sutera proposed that he and Dioguardi go to Atlanta with LeFranc to pick up the "merchandise" and save LeFranc an extra trip.

LeFranc said that was impossible; only he and his friend were to go to Atlanta and pick up the merchandise and then he would call Dioguardi and Sutera in Miami and arrange for the transfer to them. There was some more discussion about the mechanics of the transfer, LeFranc stating at one point that "in the past people have been betrayed, and everything has been lost, even the people." During dinner Dioguardi made another telephone call during which he stated that "this was a once-a-year deal and it takes time to iron out the problems." A day later, Dioguardi and Sutera flew back to Miami.

On the same day that LeFranc was meeting with the potential buyers, Desist flew to Rochester and thence to Georgia to get the heroin. That night Conder met him at the Columbus airport; Desist registered in the Black Angus Motel, and they both went to Conder's trailer. Conder told Desist the freezer was in a box adjacent to the trailer; Desist said certain persons would arrive the following afternoon at 2:00 to pick up its contents, and that Conder should arrange to have his wife away. Once at the trailer, Conder pointed out the freezer. On the next morning, Nebbia and LeFranc boarded a plane in New York bound for Atlanta; in Atlanta they changed planes for Columbus, and Desist met them at the Columbus airport that afternoon. Nebbia rented a car, and the three drove around and stopped at a restaurant. Desist was eventually left in the Columbus shopping area.

Nebbia and LeFranc continued driving around, winding up in Opelika, Alabama, about 4:00 P.M. There they purchased two suitcases, a foot locker and a travel bag. Arriving back in Columbus, they met Desist at the Black Angus; after a short while in Desist's room, Nebbia and LeFranc resumed their driving. Eventually, they registered at a motel under a fictitious name. Repeatedly that day they drove in a way that would make it difficult to follow them unnoticed.

After Nebbia and LeFranc had left his motel room, Desist called Conder, and they met at a restaurant. Desist explained that the project would take longer than anticipated because the people who were to pick up the merchandise had returned to Atlanta to rent another car because they thought they had been followed. The pickup would be the following day; the people would be Frenchmen. (Nebbia and LeFranc spoke to each other in French.) Desist surreptitiously handed Condor $2,000, and pointed out that Conder could buy suitcases in the morning if necessary. Conder rejected an offer of several hundred dollars or a car for taking the contents of the freezer to Atlanta.

On Sunday morning, December 19, Desist went to Conder's trailer camp and told Conder to buy the suitcases. After driving Desist back to the motel, Conder bought four large suitcases. Back at his trailer he removed all the plastic bags from the freezer and put them in the suitcases he had bought; he had to use two of his own as well. One suitcase was placed inside the trailer and five in a shed near the trailer. This was about 1:00 in the afternoon. After Desist called and checked, Conder waited for the Frenchmen, but they never arrived.

That same morning Nebbia and LeFranc had checked out of their motel, driven to Atlanta and rented another car. They met Desist in his motel room, and saw somebody as they were leaving who they thought might be watching them. Desist then called Conder and told him that the two had become suspicious and would...