Migliore v. United States
| Decision Date | 18 June 1969 |
| Docket Number | No. 25477,25830.,25477 |
| Parties | Richard John MIGLIORE, Appellant, v. UNITED STATES of America, Appellee. Jacqueline MINGO, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Phillip A. Hubbart, Miami, Fla., for appellant Migliore.
Harry W. Prebish, Richard M. Gale, Miami, Fla., for appellant Mingo.
J. V. Eskenazi, Asst. U. S. Atty., William A. Meadows, Jr., U. S. Atty., by Neal R. Sonnett, Asst. U. S. Atty., Miami, Fla., for appellee.
Before BELL and MORGAN, Circuit Judges, and GUNN, District Judge.
Both appellants were tried jointly, despite motions for severance, and were convicted by a jury of selling a narcotic drug, not in the original stamped package, in violation of 26 U.S.C. § 4704(a). This is an appeal from those convictions.
Both appellants present the issue of whether they were entitled to separate trials where each appellant's non-testimonial statements implicated the other appellant, notwithstanding the fact that the jury was instructed that the statements were admissible only against the party making them.
On September 22, 1966, an undercover agent for the Federal Bureau of Narcotics, named Nicholas Navarro, was introduced to the appellant Richard John Migliore. On two occasions shortly thereafter, Migliore attempted to obtain narcotics for the agent, but was unsuccessful in both his attempts.
On November 2, 1966, the agent telephoned Migliore and was told that a contract for $100.00 worth of heroin had been arranged. This represented ten capsules of heroin at $10.00 per capsule. The agent met Migliore and they drove to the apartment of the appellant Jacqueline Mingo. Migliore entered the apartment with $100.00, and returned to the car approximately ten minutes later, saying that Mingo had gone to get the heroin. Some time later, Migliore went back to the apartment, leaving the agent in the car. The door was opened by a then unidentified woman; Migliore entered; and in two minutes both Migliore and Mingo came out of the apartment. Migliore returned to the car and handed the agent a tissue paper containing eight capsules which were later identified as heroin.
On November 4, 1966, Migliore took the agent to Mingo's apartment again. After the agent and Mingo were introduced, Mingo asked the agent, out of the hearing of Migliore, how he had liked the heroin he had gotten previously. The agent complained that the heroin was weak and that he had gotten only eight capsules instead of ten. Mingo told him, . Mingo then asked the agent if he wanted her to get him some more heroin, and the agent said that he did. Mingo left the apartment and later returned with another ten capsules which she sold to the agent. These capsules did not contain any narcotic drug, but rather contained quinine and sugar.
On September 26, 1967, the appellants were tried jointly, despite motions by both of them for severance which were denied, in the District Court, and were found guilty by a jury. At this trial the agent testified to all the previously mentioned evidence, including the conversations with the appellants. Mingo maintains on appeal that the admission of the testimony of the agent as to the conversations with Migliore on November 2, 1966, in which Migliore implicated Mingo was an error on the part of the lower court. Mingo objected to the admission of this testimony at the trial. Migliore maintains on appeal that the admission of the testimony of the agent as to the conversations with Mingo on November 4, 1966, in which Mingo implicated Migliore was an error on the part of the lower court. However, Migliore did not object to the...
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