U.S. v. Bommarito

• Citation: 524 F.2d 140
• Decision Date: 08 October 1975
• Docket Number: D,No. 214,214
• Parties: UNITED STATES of America, Appellee, v. John Paul BOMMARITO, Defendant-Appellant. ocket 75-1219.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 140

524 F.2d 140

UNITED STATES of America, Appellee, v. John Paul BOMMARITO, Defendant-Appellant.

No. 214, Docket 75-1219.

United States Court of Appeals,

Second Circuit.

Submitted Sept. 3, 1975.

Decided Oct. 8, 1975.

Richard G. Chosid, West Bloomfield, Mich., for appellant.

Frederick T. Davis, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S. D. N. Y., John D. Gordan, III, Asst. U. S. Atty., New York City, of counsel), for appellee.

Before SMITH, MANSFIELD and OAKES, Circuit Judges.

MANSFIELD, Circuit Judge:

After a non-jury trial in the Southern District of New York before Richard Owen, Judge, appellant was convicted of one count of conspiring to distribute methamphetamine, and to possess it with intent to distribute it, and of one count of possession and sale of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. Appellant's principal contentions are that Wharton's Rule bars his conviction on the conspiracy count, that the evidence was insufficient to support conviction on either count, and that the Double Jeopardy Clause bars his conviction for conspiracy because he previously pleaded guilty to another narcotics conspiracy. Finding these and other arguments advanced by appellant to be without merit, we affirm.

The evidence presented at trial reveals that, in December 1973, one Luigi Ciraco flew to Miami to purchase methamphetamine for resale in the New York area. Through the efforts of one Louis Wolf, ¹ a meeting between Ciraco and appellant was arranged. Appellant informed Ciraco that he could provide up to 10 pounds of the drug, but Ciraco decided to purchase Shortly thereafter, the parties again met, and appellant gave the pound of methamphetamine to Ciraco. Upon returning to New York, Ciraco succeeded in selling about eight ounces of the drug to various purchasers. He remitted $1,500 of the proceeds to appellant in Miami, and kept the latter informed of the progress of his sales efforts. Those efforts soon ran into a major obstacle, however, as on March 8, 1974, Ciraco was arrested in Yonkers, N. Y., with eight ounces of the drug in his possession.

only one pound at a time because of his limited resources. Credit was arranged; the parties agreed that appellant would provide a pound of methamphetamine for a payment of $5,500 due after Ciraco resold the drug.

Ciraco then agreed to cooperate with agents of the Drug Enforcement Administration ("DEA"). On March 9, he telephoned appellant, and agreed to meet with him in Detroit to pay the rest of the money due for the pound of methamphetamine. The Detroit meeting took place on March 13. Ciraco was accompanied by DEA Group Supervisor Anthony Senneca, whom he introduced as a friend interested in purchasing drugs. The remaining $4,000 due on the pound of methamphetamine was paid to appellant, who then began negotiations with Senneca for sale of 10 pounds of the drug.

The following day an unidentified man delivered a pound of methamphetamine to the hotel room occupied by Ciraco and Senneca. At a further meeting between the pair and appellant, they agreed that the pound was to be the first installment of a sale of 10 pounds of methamphetamine to Senneca; the remaining nine pounds were to be delivered in New Jersey. After returning to New York Ciraco called a prearranged number in Detroit and left a message that the remaining nine pounds should not be delivered. On March 25, Ciraco flew to Miami in the company of a DEA agent, met appellant, and paid him $5,000 for the pound delivered in Detroit. At the trial Ciraco testified about all his meetings with appellant, and the DEA agents testified about the meetings in which they participated.

DISCUSSION

Appellant argues that his conviction on the conspiracy count is barred by Wharton's Rule, a doctrine of criminal law which, in its most recent formulation, provides that:

"An agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission." 1 Anderson, Wharton's Criminal Law and Procedure § 89, p. 191 (1957).

Appellant cannot be prosecuted for conspiring with Ciraco to sell drugs, the argument continues, since the cooperation of both parties was essential to complete the substantive offense: the sale of the drugs.

We do not believe that appellant can thus rely on Wharton's Rule to bar his conviction for conspiring to violate the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 Et seq. (the "Act" herein). After an extensive analysis of the history and policies underlying Wharton's Rule, the Supreme Court has recently concluded that the rule is merely "an exception to the general principle that a conspiracy and the substantive offense that is its immediate end do not merge upon proof of the latter" and that it "has current vitality only as a judicial presumption, to be applied in the absence of legislative intent to the contrary." Iannelli v. United States, 420 U.S. 770, 782, 95 S.Ct. 1284, 1292, 43 L.Ed.2d 616 (1975). ² The structure and legislative history of the drug abuse act provide persuasive evidence that, because of the special dangers which conspiracies to distribute controlled drugs pose to society, ³ Congress did intend that a conspiracy to violate the Act should constitute a separate crime in addition to the substantive offense.

Section 406 of the Act, 21 U.S.C. § 846, supplements the general federal conspiracy statute, and makes it a crime to conspire "to commit Any offense defined in this subchapter." (Emphasis added). The all-inclusive language of § 846 is not accidental but rather is consistent with the Act's overall aim of strengthening remedies available against organized traffic in drugs while lessening penalties for possession of drugs for personal use. See H.R. Rep. 91-1444, 91st Cong., 2d Sess., pt. 1, 10-11 (1970), U.S. Code Cong. & Admin. News, 1970, p. 4566. Allowing prosecution for conspiracy under § 846 without the limitations imposed by Wharton's Rule is warranted by the Act's expressed purposes of "providing more effective means for law enforcement aspects of drug abuse prevention and control" and "providing for an overall balanced scheme of criminal penalties for offenses involving drugs." Id. at 1, U.S. Code Cong. & Admin. News, 1970, p. 4567. In view of Congress' obvious concern with the dangers posed by organized schemes to distribute drugs, ⁴ and the careful consideration it gave to the Act's scheme of penalties, we believe that if it had intended to restrict the scope of § 846 through the application of Wharton's Rule, it would have done so explicitly.

Moreover, even if § 846 were subject to Wharton's Rule, the facts of this case would still not bring appellant within the scope of the rule's protection. The indictment charged that appellant and Ciraco participated in the conspiracy along with other unnamed co-conspirators, and there was ample evidence at trial to support the conclusion that, for example, the persons who made the actual deliveries of the methamphetamine sold by appellant were participants in the conspiracy. ⁵ Thus a basis exists for invocation of the "third party exception" to the rule. See Iannelli v. United States,supra, p. 775, 95 S.Ct. p. 1289. Since the conspiracy would encompass a greater number than the two persons required to complete the substantive offense of selling methamphetamine, Wharton's Rule would not bar the conviction. United States v. Becker, 461 F.2d 230, 234 (2d Cir. 1972), Vacated and remanded on other grounds, 417 U.S. 903, 94 S.Ct. 2597, 41 L.Ed.2d 208 (1974); United States v. Benter, 457 F.2d 1174, 1178 (2d Cir. 1972), Cert. denied, 409 U.S. 842, 93 S.Ct. 41, 34 L.Ed.2d 42 (1973). In addition, since the offenses which appellant was convicted of conspiring to commit included Possession of a controlled substance with intent to sell it, 21 U.S.C. § 841(a)(1), an offense which patently requires only one person for its commission, even a conspiracy consisting solely of appellant and Ciraco would include more people than those required to commit the substantive offense, and Wharton's Rule would not prohibit the conviction. Lastly, as we explain in more detail below, the scope of the conspiracy, which contemplated an ongoing relationship in which there would be additional sales, extended beyond the one pound of methamphetamine which was the subject of the substantive count.

Appellant next argues that the evidence was insufficient to support a conviction on the conspiracy count. Relying chiefly on United States v. Peoni, 100 F.2d 401 (2d Cir. 1938), he argues that the evidence shows only one simple sale from himself to Ciraco, not any agreement between them to further Ciraco's resale of the drugs in New York. However, the record clearly supports the conclusion that, from their first meeting in Miami, appellant and Ciraco had agreed to participate in an ongoing drug distribution venture. Appellant originally offered to sell 10 pounds of methamphetamine to Ciraco, but the latter decided to take it "only a pound at a time." Before Ciraco left Miami with the initial pound, appellant insisted that Ciraco "keep in touch and let me know what is happening." After Ciraco returned to New York, appellant questioned him over the telephone about the progress of the sales, and asked when he would receive the money still due on the pound. In short, unlike the seller of counterfeit bonds in United States v. Peoni, supra, who merely knew in a general way that the bonds might pass from his buyer into a third party's hands, appellant remained actively interested in Ciraco's resale of the drugs, received money from those resales, and obviously planned to provide Ciraco with more merchandise for sale in the future. He was thus properly found guilty of conspiring with him to possess the drugs with intent to distribute and to resell the drugs. See ...