Quercia v. United States

• Decision Date: 18 May 1934
• Docket Number: No. 2898.,2898.
• Citation: 70 F.2d 997
• Parties: QUERCIA v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

70 F.2d 997 (1934)

QUERCIA v. UNITED STATES.

No. 2898.

Circuit Court of Appeals, First Circuit.

May 18, 1934.

Essex S. Abbott, of Boston, Mass. (Joseph V. Carroll, of Boston, Mass., on the brief), for appellant.

Joseph J. Hurley, Asst. U. S. Atty., of Boston, Mass. (Francis J. W. Ford, U. S. Atty., of Boston, Mass., on the brief), for the United States.

Before BINGHAM, WILSON, and MORTON, Circuit Judges.

WILSON, Circuit Judge.

The appellant, Angelo Quercia, was jointly indicted in the District Court of Massachusetts with one Joseph A. Brogna under the so-called Harrison Act (26 USCA §§ 211, 691 et seq.) for the unlawful sale and distribution of narcotics. Brogna pleaded guilty.

Quercia on his first trial was found guilty, but, by reason of a statement of the trial judge in his charge to the jury, the judgment of this court, 62 F.(2d) 746, affirming the judgment of the District Court, was reversed by the Supreme Court, 289 U. S. 466, 53 S. Ct. 698, 77 L. Ed. 1321, and the case was remanded to the District Court for further proceedings.

At the September term, 1933, of the District Court, Quercia was again set to the bar to be tried. In the course of the trial a government witness testified that in July or August, 1931, he was investigating the drug traffic in the vicinity of Boston and came in contact with Brogna; that he had bought drugs of him; that later a dispute arose as to the price Brogna was charging the agent for morphine. As a result, Brogna said he would bring Quercia, who was the "main connection," with whom the agent could talk price. Brogna then went to the residence of Quercia and returned, accompanied by Quercia, whom he introduced as "the main connection," to which introduction Quercia made no objection.

The agent testified that he then had a conversation with Quercia and told him the price Brogna was charging him for the drug; that Quercia told him that a physician up in Maine was paying $110 an ounce without objection, but finally agreed that the price to the agent would be $75 an ounce, and that the agent could take it or leave it, and then said: "Give Joe (meaning Brogna) the money," and in the presence of Quercia the agent paid Brogna $225 for three ounces of morphine, which was later delivered to the agent by Brogna.

The agent further testified that during the conversation with Quercia, Quercia said that all future business the agent did with Quercia would have to be done through Brogna; that he did not want to have anything to do with the business. "You do all your business with Joe."

It is not contended by the appellant that the jury was not warranted in finding the appellant guilty of selling and distributing drugs on the day of September 9, 1931, under the first count in the indictment.

The government agent further testified that on September 13, 1931, with another agent, he again went to Brogna's residence and told Brogna that he wanted to buy more morphine. Prior to the admission of this evidence, Quercia's counsel objected to the admission of "anything said out of the defendant's (Quercia's) presence," in reply to which the court said:

"Let us see what we have by way of evidence in the case. We have testimony, haven't we, in substance that Brogna said in Quercia's presence, and that Quercia did not deny it, that Quercia was the principal or the `main connection.' Is that the way you remember the testimony, Mr. Carroll?

"Mr. Carroll. Yes.

"The Court. We have testimony from this witness as to Quercia stating that in the future the officer's dealings should be with Brogna, and under these circumstances I am compelled to admit the testimony. Your exception may be noted."

It may be well to note that up to this time in the course of the trial no denial had been made by either Brogna or Quercia of the agent's testimony as to what took place between him and Quercia on September 9.

The government agent further testified that on September 13, 1931, when he called on Brogna and said that he wanted to buy more morphine, Brogna went to a certain place in the city of Chelsea where the agent had further talk with Brogna and paid him $160. Brogna then went to Quercia's residence in Somerville and entered, and later came out with Quercia and a man by the name of Patterson. Brogna then returned to the place in Chelsea where the agent paid him the money and delivered to the agent two ounces of morphine.

Brogna was then arrested and taken to the police station. Later the officers visited Quercia's residence and found in a room claimed to be occupied by the man Patterson a quantity of drugs and scales for weighing. At the police station, while the officers were examining money found on the person of Brogna, Quercia voluntarily offered money in his possession for examination. Among the bills offered by Quercia for examination was found a marked $5 bill paid by the government agent...