Poliafico v. United States, No. 12476-12484.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtSIMONS, , and ALLEN and McALLISTER, Circuit
Citation237 F.2d 97
Docket NumberNo. 12476-12484.
Decision Date26 November 1956
PartiesSylvester POLIAFICO, alias Sam Polo, Appellant, v. UNITED STATES of America, Appellee. Salvatore LAZZARO, alias Sal, alias Trippo, Appellant, v. UNITED STATES of America, Appellee. Nunzio ROMANO, alias Nunzie, Appellant, v. UNITED STATES of America, Appellee. Ben YOSLOVITZ, alias Benny Farmer, Appellant, v. UNITED STATES of America, Appellee. Anthony CRISCI, alias Tony Crish, Appellant, v. UNITED STATES of America, Appellee. Harry RICCOBENE, alias Anthony DiMarco, Appellant, v. UNITED STATES of America, Appellee. Salvatore PIERI, alias Sam Pieri, Appellant, v. UNITED STATES of America, Appellee. Michael ERRA, Appellant, v. UNITED STATES of America, Appellee. Anthony NASELLI, Appellant, v. UNITED STATES of America, Appellee.

237 F.2d 97 (1956)

Sylvester POLIAFICO, alias Sam Polo, Appellant,
v.
UNITED STATES of America, Appellee.

Salvatore LAZZARO, alias Sal, alias Trippo, Appellant,
v.
UNITED STATES of America, Appellee.

Nunzio ROMANO, alias Nunzie, Appellant,
v.
UNITED STATES of America, Appellee.

Ben YOSLOVITZ, alias Benny Farmer, Appellant,
v.
UNITED STATES of America, Appellee.

Anthony CRISCI, alias Tony Crish, Appellant,
v.
UNITED STATES of America, Appellee.

Harry RICCOBENE, alias Anthony DiMarco, Appellant,
v.
UNITED STATES of America, Appellee.

Salvatore PIERI, alias Sam Pieri, Appellant,
v.
UNITED STATES of America, Appellee.

Michael ERRA, Appellant,
v.
UNITED STATES of America, Appellee.

Anthony NASELLI, Appellant,
v.
UNITED STATES of America, Appellee.

Nos. 12476-12484.

United States Court of Appeals Sixth Circuit.

August 31, 1956.

As Amended November 26, 1956.


237 F.2d 98
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237 F.2d 99
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237 F.2d 100
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237 F.2d 101
Henry C. Lavine, Cleveland, Ohio, William D. O'Neill and Nathan D. Seeberg, Buffalo, N. Y., on the brief, for Sylvester Poliafico and Anthony Naselli

Jacob W. Friedman, New York City, for Salvatore Lazzaro and Nunzio Romano.

Frank Steel, Akron, Ohio, for Ben Yoslovitz.

George J. Todaro, New York City, for Anthony Crisci.

William J. Dammarell, Cincinnati, Ohio, Jacob Kossman, Philadelphia, Pa., on the brief, for Harry Riccobene.

William D. O'Neill, Buffalo, N. Y., Henry Lavine, Cleveland, Ohio, and Nathan D. Seeberg, Buffalo, N. Y., on the brief, for Salvatore Pieri and Michael Erra.

Eben H. Cockley, Cleveland, Ohio, Sumner Canary, Cleveland Ohio, on the brief, for United States.

Before SIMONS, Chief Judge, and ALLEN and McALLISTER, Circuit Judges.

McALLISTER, Circuit Judge.

All of the appellants were indicted for conspiracy to violate the narcotic laws,1 and a number of them were also charged with various substantive offenses involving

237 F.2d 102
violations of the same laws. The conspiracy was, as claimed by the government, widespread and long continued, involving many persons. Eighteen of the twenty defendants actually went to trial. An order of severance was made as to one defendant, because of his illness; one pleaded guilty before trial; the district court dismissed the case against another; and the jury found one defendant not guilty. The remaining defendants, including all of the appellants, were found guilty of conspiracy. Four of the appellants were also found guilty of the substantive offenses charged

On their nine separate appeals, the convicted defendants raise numerous claims of error. They contend that the evidence was insufficient to sustain the convictions; that the trial court erred in both admitting and excluding testimony and in its instructions to the jury; that the grand and petit juries were improperly constituted; that there was improper venue as to certain of the defendants; and that the closing argument of the district attorney was prejudicial and constituted reversible error.

The primary contention of the majority of the appellants is that, while the government charged a single conspiracy, its evidence only purported to disclose, instead, a number of different conspiracies; that the parties alleged to be in one of the conspiracies were not proved to be in the other conspiracies; and that, accordingly, there was a fatal variance between the indictment and the proof. The foregoing claim requires some consideration of the relationship between the appellants, as well as the acts claimed to have been committed by them.

James Mandanici, named as one of the co-conspirators in the indictment, and Frank Consolo, who pleaded guilty to the conspiracy count, were two of the chief witnesses for the government. According to their evidence, appellant Poliafico was the organizer and ringleader of the conspiracy which had its principal base of operations in Cleveland, Ohio. It was Poliafico who first solicited Mandanici and Consolo, both government witnesses, as above mentioned, to distribute the narcotics — which were to be delivered to him at a later date — at a salary of $100 a week; and it was through the negotiations of Poliafico that appellants Riccobene and Crisci came to Cleveland from New York City, bringing the first half kilo of pure heroin which Riccobene carried in a cigar box. Upon his arrival, Riccobene explained to Poliafico and Consolo that they needed a scale, cellophane bags, and milk sugar in order to mix, weigh, and package the heroin, and told them that he wanted to show the others how to mix it. When the required articles were procured by Crisci and Poliafico, Riccobene dumped the half kilo of heroin on a table and mixed it with the milk sugar, and Poliafico and Crisci weighed it and poured it into one-ounce packages.

After they were through mixing the heroin, Riccobene discussed with Poliafico, Crisci, and Consolo the cost of the first half kilo of heroin, and the fact that it was on consignment; and the agreement that after it had been sold to addicts, and paid for, they would receive the second half kilo. The heroin in question was subsequently distributed and sold, in a mixture with milk sugar, or quinine, in one-ounce packages. The first half kilo was thereafter paid for by Poliafico and his associates, and further shipments of heroin continued to be delivered to them by various of the alleged co-conspirators, and sold in the small ounce packages to individual drug addicts. Money collected from the sales was paid to Crisci. On a subsequent occasion, Crisci mixed up the remainder of the heroin, when the supply was getting low. Thereafter, on several occasions, Crisci came to Cleveland to collect money in payment for heroin from the Poliafico group.

Evidence introduced on behalf of the government, in addition to the proofs concerning the activities of appellants Poliafico, Riccobene, and Crisci, and the government witnesses Mandanici and Consolo, shows that appellant Naselli, pursuant to arrangements with Crisci

237 F.2d 103
and subsequent to the initial delivery by Riccobene, brought heroin from New York and delivered it to Poliafico and Mandanici at a point on the outskirts of Cleveland; and that Naselli made collection of payments for the heroin at various times when he made other deliveries

The government's proofs further show that appellant Erra carried on successful negotiations in New York to secure additional heroin for Poliafico and his associates in Cleveland, and made arrangements for the delivery of the narcotics that were afterward carried out; that appellant Yoslovitz, on one occasion, was present at the "Spanish Village" with Erra and Mandanici, when Poliafico stated that he had some heroin at Yoslovitz's apartment, and that they were all going over to pick it up; and that Yoslovitz then went to his apartment with Poliafico, Erra, and Mandanici, and there procured a half kilo of heroin, which he delivered to Mandanici and which he had previously secured from New York. Erra was living in the same apartment with Yoslovitz. Yoslovitz later accompanied Poliafico and Mandanici to Pennsylvania where they met appellant Pieri, from Buffalo, for the purpose of making arrangements to secure heroin from him. Pieri told them that he would let them know in a few days about the matter, and afterward delivered ten ounces of heroin to Poliafico and Mandanici.

As to appellant Lazzaro, the evidence of the government showed that pursuant to arrangements made in New York by Poliafico, who told Mandanici that more heroin would be brought to Cleveland in a day or two by a man named Lazzaro, Lazzaro came to Cleveland with a half kilo of heroin which he delivered to Mandanici who was acting for Poliafico in the matter. As to appellant Romano, Mandanici testified that the half kilo of heroin delivered by Yoslovitz came from Romano in New York. It appeared from the proofs that Poliafico had introduced Mandanici to Romano, informing him that Romano had come to Cleveland to collect the money for the half kilo of heroin; that when Poliafico and Mandanici had first met appellant Erra, he informed them that Romano was his partner, and, thereafter, would let Poliafico know in advance whenever Romano was going to come to Cleveland. After several of their transactions in heroin, Poliafico and Mandanici met Erra and Romano in New York and discussed certain indictments for violation of the narcotic laws that had been returned in Cleveland against other parties, not involved in this case. Poliafico and Mandanici told them not to expect money so fast in payment for the heroin, as they were going to "lay dead" for awhile because of the indictments that had just been announced in the newspapers; and that, in reply, Romano and Erra had said: "All right."

Were the appellants engaged in the same conspiracy? Poliafico was the man who organized and promoted the enterprise of buying heroin in large, unadulterated quantities and reselling it, at a profit, in small, adulterated quantities. He and certain appellants carried on negotiations for the purchase of heroin from other appellants, and bought it from them. He arranged with other appellants to adulterate the heroin so purchased and to sell it to drug addicts. All of the appellants were either selling heroin to Poliafico and his associates, or reselling it for them, or carrying on negotiations for such sales, or making payments therefor, or delivering heroin for resale, or reselling it. The purchase of heroin and the resale of heroin, in this case, was concerned with one enterprise, which could be called the Poliafico deal, in the parlance of the underworld. The over-all conspiracy was the plan, conceived by Poliafico and his associates, to buy and sell heroin at a profit. The suppliers knew that the purchases were for resale and they also knew that several conspirators were involved in the purchases. The fact that one such supplier did not have...

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99 practice notes
  • United States v. Agueci, No. 99
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 8 Noviembre 1962
    ...separate and apart from the crime of importation, purchase, sale, and transportation of narcotics." Poliafico v. United States, 237 F.2d 97, 105 (6th Cir., 1956), cert. denied, 352 U.S. 1025, 77 S.Ct. 590, 1 L.Ed.2d 597 (1957). Cf. Braverman v. United States, 317 U.S. 49, 54, 63 S.Ct. ......
  • United States v. Jacobs, No. 30019.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 28 Febrero 1972
    ...v. United States, 10 Cir., 121 F.2d 245, 249. 9 Pinkerton v. United States, 5 Cir., 151 F.2d 499, 501; Poliafico v. United States, 6 Cir., 237 F.2d 97, 106; Brady v. United States, 8 Cir., 24 F.2d 405, 407; Carbo v. United States, 9 Cir., 314 F.2d 718, 10 Callanan v. United States, 364 U.S.......
  • U.S. v. Huezo, Docket No. 07-0031-cr.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 14 Octubre 2008
    ...Cir. 1969).4 See Marrapese, 486 F.2d at 921. Bradford said "only slight additional evidence," citing Poliafico v. United States, 237 F.2d 97, 104 (6th Cir.1956). See Bradford, 413 F.2d at 469. Poliafico said "slight evidence may be sufficient," citing United States v. Co......
  • United States v. Marchisio, No. 170
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 9 Abril 1965
    ...proven, each defendant's connection may be shown by acts which, viewed alone, are of relatively slight import. Poliafico v. United States, 237 F.2d 97, 104 (6 Cir. 1956), cert. den. 352 U.S. 1025, 77 S.Ct. 590, 1 L.Ed.2d 597 (1957). Here the evidence connecting each defendant was The fact t......
  • Request a trial to view additional results
95 cases
  • United States v. Marchisio, No. 170
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 9 Abril 1965
    ...proven, each defendant's connection may be shown by acts which, viewed alone, are of relatively slight import. Poliafico v. United States, 237 F.2d 97, 104 (6 Cir. 1956), cert. den. 352 U.S. 1025, 77 S.Ct. 590, 1 L.Ed.2d 597 (1957). Here the evidence connecting each defendant was The fact t......
  • United States v. Gilboy, Crim. No. 12880.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • 6 Febrero 1958
    ...1941, 121 F.2d 930, at page 933; Lefco v. United States, 3 Cir., 1934, 74 F.2d 66, at page 68; Poliafico v. United States, 6 Cir., 1956, 237 F.2d 97, at pages 103, 106; that all contribute alike either to the making of the scheme or its fulfillment. It is enough if at some time during the c......
  • Sweetwater Valley Farm, Inc. v. Dean Foods Co. (In re Southeastern Milk Antitrust Litig.), Master File No. 2:08–MD–1000.
    • United States
    • United States District Courts. 6th Circuit. Eastern District of Tennessee
    • 14 Julio 2011
    ...did not personally commit the acts. United States v. Murphy, 937 F.2d 1032, 1041 (6th Cir.1991) (citing Poliafico v. United States, 237 F.2d 97, 104 (6th Cir.1956) (Engle, J., dissenting)). It is not necessary that each conspirator know all the details of the conspiracy or all the participa......
  • U.S. v. Philip Morris USA, Inc., No. CIV.A. 99-2496(GK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 17 Agosto 2006
    ...or the withdrawal of old ones from it does not change the status of the other conspirators.") (quoting Poliafico v. United States, 237 F.2d 97, 104 (6th Cir.1956)); United States v. Shorter, 54 F.3d 1248 (7th Cir.1995). In addition, even if one conspirator did not participate in, or was una......
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