Ferrari v. United States, 15282.
| Decision Date | 18 June 1957 |
| Docket Number | No. 15282.,15282. |
| Citation | 244 F.2d 132 |
| Parties | Renaldo FERRARI, John Orman Knight, Jack Cherpakov and Lester Darneille, Appellants, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Harry P. Glassman, San Francisco, Cal., for appellant Ferrari.
B. Michael Lewton, San Francisco, Cal., for appellant Cherpakov.
Lester Darneille and John Orman Knight, in pro. per.
Lloyd H. Burke, U. S. Atty., John Lockley, Asst. U. S. Atty., San Francisco, Cal., for appellee.
Before LEMMON, FEE, and CHAMBERS, Circuit Judges.
In a gumshoe and cloak-and-dagger atmosphere, the record in this case discloses the devious machinations of those who traffic in the dried juice of the poppy.
A Federal agent posing as an investment broker, who used a New York gangster as a reference, and who was warned that if he "did wrong by Red" he would "end up in an alley"; 3 a.m. breakfasts in the G-man's apartment, which was wired for sound — with two ladies of San Francisco's night life, endowed with the rhythmic names of "June and Jyrene", as pickup guests; and, finally, during the early hours of an unlucky August 13, delivery of an unlucky thirteen ounces of narcotics in a paper bag holding six rubber containers, in "the fourth drawer down" of a bureau in a motel cabin — these are some of the intriguing details disclosed by the record in this case.
On February 23, 1956, there was returned against the appellants and others an indictment consisting of sixteen counts and fifteen overt acts, and charging violation of the Harrison Narcotic Act (26 U.S.C.A. §§ 4704 and 7237 1954 Ed.); the Jones-Miller Act (21 U.S.C.A. § 174); and a conspiracy to violate those acts (18 U.S.C.A. § 371).
All appellants were included among the defendants on the sixteenth count, which charged a conspiracy to violate the other two statutes, supra. In addition, the appellant Darneille was charged with violation of the Harrison Act in Count 1, and with violation of the Jones-Miller Act in Count 2. The remaining thirteen counts related solely to co-defendant Charles Garcia, Sr., who with Charles Garcia, Jr., pleaded guilty to certain of the charges prior to the commencement of the trial. Charles Garcia, Jr., was named in Counts 1 and 2, together with his father and Darneille.1
After a jury trial all the four appellants were found guilty as charged on Count 16. Darneille was also found guilty on Count 1 and not guilty on Count 2.
Each appellant was sentenced to a term of five years' imprisonment and was fined $1 on Count 16. In addition, Darneille was sentenced to five years' imprisonment and was fined $1 on Count 1, his sentences of imprisonment on Counts 1 and 16 to run concurrently. From judgment imposing these sentences, the present appeal has been taken.
After testimony by two chemists for the Treasury Department regarding the seized heroin, Ira Charles Feldman, an agent of the Bureau of Narcotics, testified that he first met the appellant Ferrari in Ciro's Bar, 645 Geary Street, San Francisco, on July 6, 1955, where Ferrari was "tending bar". Feldman told Ferrari that he was "an investment broker from the East", and that he "bought and sold things, small things, something that he could put in his pocket, carry around, and turn over for a fast buck."
Ferrari replied that he knew what Feldman wanted, but things were "pretty tight", and that he himself hadn't "been paid in the last two months".
On the evening of July 8, 1955, Feldman was introduced by appellant Ferrari to appellant Knight, who was also behind the bar.
On July 17, 1955, Feldman invited Ferrari to his apartment, saying that he thought they could "make a deal". Ferrari replied that he couldn't make it that evening, but that he was sure that in a few days he "could come up and he would be very happy to talk". Feldman told Ferrari what he wanted to talk about.
On July 20, 1955, again at Ciro's Bar, Feldman met Ferrari and Knight and invited them to his apartment. Ferrari again said that he "couldn't make it, but that Knight could make it. Ferrari departed shortly afterward, but Feldman remained. By prearrangement with Feldman, Janet Jones, alias Janet Howard, a special employee of the Bureau of Narcotics, came up to the bar, and Knight was introduced to her. Since "business was not very good", Knight joined Miss Jones and Feldman in a back booth.
Knight said that he would "be happy" to go up to Feldman's apartment that night, and said that he would like to take his "lady friend" after the bar was closed.
At 2 a.m. on July 21, 1955 Knight closed the bar, and said that he would pick up his "girl". Feldman and Miss Jones went on ahead to Feldman's apartment, and at 2:45 a.m. were joined there by Knight and Marie Hagler, whose surname at first appears erroneously as "Heller".
While the girls were absent from the room, Knight asked Feldman, "What do you want, black or white?" Feldman asked him what he meant, and Knight replied, "Junk".
Feldman testified that "white" meant heroin, and "black" opium, while "junk" stood for the generic term, "narcotics".
Feldman told Knight that he wanted "white stuff". Knight said that one had to be careful in San Francisco, that the "feds" were "all over", and that he would contact Feldman on the following day.
On the evening of July 22, 1955, Feldman met Knight, Ferrari, and "Bones" Darneille, another of the appellants. He also met Dave Miflin, a defendant who was convicted, but as to whom a motion for acquittal was granted by the trial judge. The disposition of his case does not appear in the record.
This time Ferrari accepted an invitation to go to Feldman's apartment that night, after he closed up the bar. But once again Ferrari failed to show up. After waiting for him at Ciro's until approximately 2 a.m., July 23, 1955, Darneille, Miflin, Feldman, Miss Jones alias Howard, and two females that they picked up en route — who rejoiced in the alliterative names of "June" and "Jyrene" — went to Feldman's apartment.
How Ferrari managed to elude Feldman and his party at Ciro's is not explained.
In the absence of the "ladies", Darneille, Miflin, and Feldman conversed in the living room. Darneille admired Feldman's apartment, and said that after seeing how Feldman lived, he knew what Feldman did. He confessed that at first he hadn't trusted Feldman. He said that he thought they could get together, "and make a couple of grand apiece". Darneille said he wouldn't "move anything less than a pound and mostly kilos".2
Feldman told Darneille that on the previous night, he had "made a pitch to a guy about narcotics". Darneille replied: "I know about the pitch * * * Red Knight told me."
On the morning of July 23, 1955, Feldman received a telephone call from Knight, informing him that "Bones" Darneille still wanted to see Feldman and deal with him.
On the evening of July 26, 1955 and the morning of July 27, 1955, Feldman and Miss Jones met Darneille at Harold's Rebound Club, on Geary Street, and the three went to Feldman's apartment.
Darneille said that he knew "narcotics backwards and forwards, that he had fooled with narcotics for the last twenty-five years, that he smoked opium for the last fifteen years, and that he had "kicked" the habit "just three years ago". He added:
On the evening of July 27, 1955, at Harold's Rebound Club, which is "approximately cater-cornered from Ciro's" "on Geary Street between Leavenworth and Jones", Darneille introduced appellant Cherpakov to Feldman as "Jack Cherry". Later that night, Cherpakov said to Feldman:
At Feldman's apartment that night, Darneille said:
On July 28, 1955, Feldman noticed that Ciro's Bar, which was closed on July 22, 1955,3 by the State authorities because of a "legal beef", had been reopened. Ferrari was tending bar as of yore, and Darneille and Cherpakov were there too. Darneille informed Feldman that "We got the deal," which was "all set in a day or so." After Darneille and Cherpakov had left, Ferrari wanted to know whether Feldman "was going to do business with them". Feldman said "Yes."
Before Cherpakov left the bar, Feldman gave him the address and the telephone of a New York gangster as a reference.
On July 29, 1955, Feldman saw Darneille at Ciro's, while Ferrari was tending bar. Again Darneille said that "It's just a matter of a day or two." Once again, on July 30, 1955, at Ciro's Bar, Darneille said to Feldman: * * * "Any minute we got the deal."
Finally, on the night of July 31, 1955, while Ferrari and Darneille were at the bar, the latter said to Feldman, "Go to see Charlie Garcia and get the junk." Garcia was at the "Macombo" Bar on Grant Avenue.
At about 12:45 in the morning of August 1, 1955, Feldman introduced himself to Garcia, Sr., at the Macombo, where the latter was tending bar. Garcia had been expecting him, and knew where Feldman's apartment was. Garcia agreed to meet Feldman as soon as Garcia closed the bar.
About two hours later, Garcia, Sr., went to Feldman's apartment with another man, whom he introduced as his brother Bob, but who was subsequently identified at Charles Clarence Garcia, Jr., his son.
At that time Feldman brusquely told his visitors that all they had been asking for had been "references". He threw $20,000 down on the couch, and told them "to put up or shut up". The Garcias said that they would return Tuesday...
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