United States v. Guanti, 185-188

Decision Date29 January 1970
Docket Number33685.,No. 185-188,Dockets 33632-33634,185-188
Citation421 F.2d 792
PartiesUNITED STATES of America, Appellee, v. Carmine GUANTI, Arnold Romano, Dominick Romano and Frank Sherbicki, Appellants.
CourtU.S. Court of Appeals — Second Circuit

COPYRIGHT MATERIAL OMITTED

Arnold E. Wallach, New York City (Joseph Panzer, New York City, of counsel), for appellant Guanti.

Monroe H. Freedman, and Ralph J. Temple, Washington, D. C. (Freedman & Temple, Washington, D. C., of counsel), for appellant Arnold Romano.

David B. Isbell, Washington, D. C. (E. Edward Bruce, Covington & Burling, Washington, D. C., and James M. LaRossa, New York City, of counsel), for appellant Dominick Romano.

H. Howard Friedman, New York City, for appellant Sherbicki.

Michael W. Leisure, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty., for the Southern District of New York, New York City, Maurice M. McDermott and Charles B. Updike, Asst. U. S. Attys., New York City, of counsel), for appellee.

Before WATERMAN, MOORE and KAUFMAN, Circuit Judges.

MOORE, Circuit Judge:

The defendants Carmine Guanti, Arnold Romano, Dominick Romano and Frank Sherbicki appeal from judgments of conviction following a two-week trial before court and jury. The indictment filed in 1964, charged in a single count twelve defendants and sixteen named co-conspirators with conspiracy to violate the Federal Narcotics Laws, 21 U.S.C. §§ 173, 174. The appellants here and two co-defendants were fugitives when the first trial of the indictment took place in 1965. At that first trial four defendants were found guilty and two were acquitted. The judgments were affirmed. United States v. Armone, 363 F.2d 385 (2d Cir.), cert. denied, Viscardi v. United States, 385 U.S. 957, 87 S.Ct. 391, 17 L.Ed.2d 303 (1966). The four defendants now appealing were apprehended after the conclusion of the first trial. Their trial was in March, 1969.

By way of brief introduction, the government claims that the appellants, together with the co-defendants and co-conspirators, were engaged in a conspiracy from 1956 through 1960 to import huge amounts of heroin into the United States from France and to distribute the drugs after their illicit importation; that the conspiracy had three pairs of exporter-courier links which delivered the heroin to an importer link in New York; that three of the defendants here were involved in the import link — the Romanos and Sherbicki; and that the defendant Guanti was the receiver link and was more closely tied to the wholesaler link as a messenger for them.

The activities of the import link are most important here since the claim is made that there were two conspiracies and that the Romanos, as members of the so-called Cahill group, either abandoned, or were excluded from, the continuing conspiracy before the statute of limitations cut-off date of September 30, 1959. The government characterizes the importers as a group having a proprietary interest and several assistants. At the core were Joseph Armone, Stephen Grammauta and the defendant Arnold Romano. Dominick Romano and Frank Sherbicki, both defendants here, are said to have been assistants. Three other members of this group would take delivery of the heroin when it entered this country. Initially, the couriers delivered it to Joseph Cahill. Then as the conspiracy progressed, Cahill transferred this function to Charles Hedges and Nicholas Calamaris. Hedges was the chief government witness both at this trial and in the 1965 trial.

The evidence reveals how each of the pairs of export-courier links made initial contact with Cahill and how Hedges was later worked into the deliveries to the import group after his release from prison in the Spring of 1958. As Hedges became more trusted, he was introduced to more of the principals in the conspiracy and became more familiar with their dealings. He went with Cahill to take delivery of the heroin from the couriers; he met the wholesalers and made deliveries to them; he carried money back and forth between various principals; he recounted events which linked each of the defendants here with the conspiracy.

The details of each event and how various deliveries and payments were made during the five-year period involved need not be given in extenso. The relevant facts relating to the claims of error will be considered in the discussion of these claims.

All appellants adopt the arguments of their co-appellants insofar as they may aid their own positions. Since each appellant claims specific reversible errors as to him, they are best dealt with separately.

ARNOLD ROMANO
Deprivation of Counsel

Arnold Romano (Arnold) for his first point asserts (in his brief) that he was denied his right to counsel because he was "forced to trial in the unexpected absence of his retained counsel" and because he had "an attorney whom he did not desire and who was not prepared to defend him." The many decisions in this Circuit cited by this appellant and by the government are of little assistance in resolving this issue. If any principle is to be gleaned therefrom, it is that every case must be judged upon its own set of facts. Somewhat analogous fact situations are to be found in cases in which similar contentions have been accepted and in others rejected. The proposition that the Sixth Amendment guarantees the right to counsel of one's own choosing is merely the preamble to the many exceptions which the courts have superimposed upon this fundamental privilege. Therefore since the facts seemingly control, we must turn to them.

On October 8, 1964 upon arraignment Arnold appeared by counsel, presumably of his choice, David M. Markowitz, who continued in such capacity at least through 1967.

On April 27, 1965, the date on which the trial was to commence, Mr. Markowitz appeared for Arnold; Arnold did not, preferring to flee and jump his $50,000 bail.

In July 1966 Arnold was reapprehended and thereafter was tried and convicted of bail-jumping. Even then Mr. Markowitz, still his counsel, represented to the Court that "we are prepared to go to trial in the narcotics conspiracy case at any time."

As late as December 27, 1967 Arnold by affidavit averred that his defense was prepared and that he was ready for the narcotics trial.

On October 8, 1968 a New Jersey attorney, Michael A. Querques, filed a notice of appearance for Arnold but Mr. Markowitz was designated therein as local counsel.

On November 20, 1968 Mr. Querques moved on behalf of Arnold to dismiss the indictment, Mr. Markowitz by affidavit still asserting Arnold's readiness to proceed to trial.

As early as October 1968 Mr. Querques (and undoubtedly his client) knew that the narcotics trial would be set for March 1969 in the Southern District of New York and on February 7, 1969 knew that March 3, 1969 was fixed for its commencement. And on February 27, 1969 Mr. Querques stated that he would be present.

The next day, Friday, February 28, 1969, however, in the late afternoon Mr. Querques notified Government counsel of a conflicting New Jersey trial engagement for the following Monday, March 3rd, which would require his services for at least a month. Despite telephonic communication between the New Jersey and New York judges, the New Jersey judge refused to yield and ordered Mr. Querques to remain in court in New Jersey, thus creating an irresistible force against an immovable body situation.

Having made all preparations months in advance for a multi-defendant narcotics conspiracy trial, the New York trial judge could scarcely allow the other defendants and their counsel to remain in idleness on the sidelines for a month or more if any reasonable solution protective of Arnold were available. He chose to find the solution in Mr. Markowitz, who had been prepared in April 1965 and whose preparedness had been reasserted at least through November 1968.

Without impugning Mr. Querques' position or belittling the dilemma in which he found himself, this court must try to put itself in the trial court's shoes. The reasons given by Arnold and Mr. Markowitz were scarcely reassuring. The trial court had to take some immediate action. There were several possibilities. It could allow Arnold to represent himself as Arnold requested. Such a course might well have been made the basis for appellate argument of trial without counsel. The court could have assigned Mr. Markowitz for all purposes but, had it done so, this Circuit's decisions of the constitutional right of pro se representation might have caused future difficulties. Rather than founder on the shores of a Scylla or Charybdis, the Court chose a middle course, thus giving Arnold as much of himself and as much of Mr. Markowitz as he might wish to take. It directed Mr. Markowitz to sit with, and be available to, Arnold throughout the trial so that Arnold was enabled to proceed pro se with the added advantage and protection of counsel — for four years at least of his own choice.

The in terrorem argument of the 7,000 pages of the April 1965 trial record which Mr. Markowitz claims he would not have had time to read is not impressive. Experienced trial counsel could have culled the essential portions of that record within the allotted time.

The trial record before us convincingly discloses that Arnold, short of disrupting the trial to wait for Mr. Querques, was given every opportunity to examine and cross-examine pro se or by counsel and to participate in argument or to remain mute. Any action that the trial court could have taken (except delay) would have been subject to the claim of error. Moreover, Arnold's failure to take full advantage of Mr. Markowitz' talents was of his own choosing. We find that he was not deprived of any constitutional right to counsel on the record presented to us and that the trial court was entitled to rely on our opinion in United States v. Bentvena, 319 F.2d 916, 936 (2d Cir.), cert. denied sub nom., ...

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