Penosi v. United States, 13637.
| Decision Date | 14 August 1953 |
| Docket Number | No. 13637.,13637. |
| Citation | 206 F.2d 529 |
| Parties | PENOSI v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Frank Desimone, Beverly Hills, Cal., for appellant.
Walter S. Binns, U. S. Atty., Ray H. Kinnison, George M. Treister, Manuel L. Real, Asst. U. S. Attys., Los Angeles, Cal., for appellee.
Before MATHEWS, HEALY and ORR, Circuit Judges.
Appellant was tried by the Court sitting without a jury and convicted on two counts of an indictment charging him and a co-defendant, Louis A. Salerno, with the crime of receiving, concealing and facilitating the transportation of narcotics in violation of 21 U.S.C.A. § 174, and conspiring to commit that offense in violation of 18 U.S.C.A. § 371. He was sentenced to imprisonment for three years on each of the two counts and a fine of $1,000 on the substantive count, the sentences of imprisonment to run concurrently.1
Appellant challenges the judgment primarily on the ground that the evidence is insufficient to sustain the judgment. We summarize the pertinent portions of the evidence.
On November 1, 1951, Federal Narcotic Agent Charles Van Natter and a government informer met co-defendant Louis A. Salerno in a bar in Hollywood, California. During the course of their conversation reference was made to narcotics. At Salerno's request, the three men met again on November 3, 1951, at the same bar and the sale of narcotics was discussed. Salerno told the government men that if they wished to buy 20 ounces of heroin he would send a telegram to New York and have the heroin delivered by plane to Hollywood at a price of $250.00 per ounce. Until the shipment arrived from New York Salerno said he would supply the agent with a smaller quantity of heroin.
At or near 12 M. of November 4th, Salerno sent the following telegram to appellant in New York signed with the fictitious name, "Louis Ricco": "Finish Work Need 20 More Let Me Know When You'll Be Here."
On the afternoon of November 5th, the government men met Salerno at his motel room pursuant to an appointment made the previous evening. Salerno then and there sold agent Van Natter four ounces of heroin at an agreed price of $1,000, payment being made in marked government funds. During a conversation had at the time of this sale, Salerno stated that he expected delivery of the larger amount of narcotics from New York within the next two days. The parties made an appointment to meet again at 10:00 p. m. the same night, November 5th, to discuss the sale of the 20 ounces of heroin.
At 7:51 p. m. Los Angeles time, November 5th, appellant dispatched from New York the following telegram to Salerno addressed to "Louis Rico": "Arriving 8:20 P.M. Tuesday American Airlines Flight 609." Salerno admitted the receipt of appellant's telegram.
The two government men and Salerno met at the bar at approximately 10:00 p. m., November 5th, pursuant to an agreement entered into earlier that day. Salerno then stated that he had wired one of his men in New York to bring the heroin and that he expected him to arrive late the following night, November 6th. Salerno arranged a meeting the following night at 10:00 p. m. to effect the sale of the 20 ounces of heroin.
The flight referred to in appellant's telegram to Salerno was scheduled to arrive in Los Angeles at 8:20 p. m., November 6th, but due to weather conditions appellant did not arrive until the early morning of November 7th, at 12:38 a.m. The government agents went to the bar on the night of November 6th, as arranged, but Salerno did not appear. A few minutes after midnight they received a phone call from Salerno postponing the meeting until 10:00 a. m., November 7th.
Appellant arrived in Los Angeles the morning of November 7th...
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...States, 169 F.2d 787, 791 (9th Cir. 1948); McCoy v. United States, 169 F.2d 776, 784 (9th Cir. 1948); see also Penosi v. United States, 206 F.2d 529, 530 (9th Cir. 1953). Thus the trial court properly instructed the jury that "the law makes no distinction between direct and circumstantial e......
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...contrary indication, that the trial court in its ultimate determination considered only the relevant evidence. Penosi v. United States, 206 F.2d 529, 531 (9th Cir., 1953); Pasadena Research Laboratories v. United States, 169 F.2d 375, 385 (9th Cir., 1948) cert. denied 335 U.S. 853, 69 S.Ct.......
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