Fiano v. United States, 16176.

• Decision Date: 07 December 1959
• Docket Number: No. 16176.,16176.
• Parties: Louis FIANO, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

271 F.2d 883 (1959)

Louis FIANO, Appellant, v. UNITED STATES of America, Appellee.

No. 16176.

United States Court of Appeals Ninth Circuit.

October 22, 1959.

Rehearing Denied December 7, 1959.

William Strong, Beverly Hills, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Ronald S. Rosen, Robert John Jensen, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before STEPHENS, MARIS and BARNES, Circuit Judges.

STEPHENS, Circuit Judge.

Louis Fiano, whose family name is Louis Friedman, was convicted in the United States District Court of violating the Federal Narcotics Act (Title 21 U.S. C.A. § 174). The conviction is based upon an indictment charging Fiano with knowingly and unlawfully selling and facilitating the sale of heroin to Stephen F. Giorgio, a government under-cover agent. The agent was operating under the assumed name of Louis Di Stephano. Fiano is appealing from the conviction and judgment.

The agent and Fiano became acquainted in a Los Angeles restaurant called "Lucy's", where Fiano was an employee in charge of a part of the restaurant. It is agreed that the two met in the establishment many times and the government claimed through the agent's testimony, which was denied by Fiano, that they talked in a guarded and round-about manner and later more directly about a deal between them wherein the agent agreed to buy and Fiano agreed to sell the agent a comparatively large amount of heroin for the sum of Seventy-Five Hundred Dollars ($7500.00). That later the sum was delivered by the agent to Fiano who told the agent that the heroin would be delivered later. According to the agent, in due time Fiano telephoned a cryptic message to him to go to Lucy's. There, still according to the agent, the two met and the following took place:

Fiano said that his people would use the agent's car for a few minutes. The car was parked in the restaurant parking lot. The agent said, "You will need the keys," and Fiano said he would not need them. At this time, two of the agent's assistants were stationed in hiding places on the lot. One of the assistants testified that he saw the agent and Fiano come from the back of the restaurant and Fiano walked toward agent's car. He was in such a position that he lost sight of Fiano for about two minutes. Fiano then rejoined the agent.

At this point the agent testified that Fiano told him the heroin was under the driver's seat of his car. The car was not taken from the parking place where the agent had left it. The agent then drove his car to his apartment where he discovered a package under the seat and that the package contained heroin. The arrest and indictment followed. We hold that the evidence supported the verdict of guilty.

One of the points on appeal relates to a ruling by the trial court refusing to admit two documents into evidence tendered by the defense, upon the ground that it had not been established that the witness, who had the documents in his immediate possession, had been shown to be their legal custodian, or that the documents were records regularly kept by a Las Vegas hotel. It was claimed by the defense that one of the documents was a hotel bill and the other was a hotel registration card. Each, it was claimed, indicated...