U.S. v. Lubrano, No. 254

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore MOORE, MULLIGAN and VAN GRAAFEILAND; MOORE
Citation529 F.2d 633
Docket NumberD,No. 254
Decision Date30 December 1975
PartiesUNITED STATES of America, Appellee, v. Philip LUBRANO, Appellant. ocket 75--1158.

Page 633

529 F.2d 633
UNITED STATES of America, Appellee,
v.
Philip LUBRANO, Appellant.
No. 254, Docket 75--1158.
United States Court of Appeals,
Second Circuit.
Argued Sept. 26, 1975.
Decided Dec. 30, 1975.

Page 635

Lawrence Hochheiser, Brooklyn, N.Y. (Hochheiser & Cohen, Brooklyn, N.Y., of counsel, Kenneth J. Aronson, Brooklyn, on the brief), for appellant.

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

Before MOORE, MULLIGAN and VAN GRAAFEILAND, Circuit Judges.

MOORE, Circuit Judge:

The indictment charged in count one that Philip Lubrano ('Lubrano') and co-defendants Anthony Rizzo ('Rizzo') and Victor Vitale ('Vitale') conspired to distribute narcotics, in violation of 21 U.S.C. § 846; count two charged that Vitale distributed 102 grams of cocaine on May 11, 1973; and count three charged that Lubrano distributed approximately 112.2 grams of cocaine on August 20, 1973, both in violation of 21 U.S.C. § 841. The jury convicted Vitale of counts one and two, convicted Rizzo of count one, and convicted Lubrano of count one but acquitted him of count three. Appellant Lubrano was sentenced to five years imprisonment and three years special parole and was enlarged on bail pending this appeal.

Appellant asserts that evidentiary errors, improper communication with jurors during the trial, and insufficient evidence require reversal. In order to properly assess the latter argument, we first review the evidence that was presented to the jury, viewing it as we must, in a light most favorable to the government. United States v. McCarthy, 473 F.2d 300, at 302 (2d Cir. 1972).

On May 1, 1973, Tony Finn ('Finn'), a government informant, talked with Rizzo and Vitale and later bought an ounce of cocaine from Vitale for $800, which amount law enforcement officers had previously given Finn. In the middle of May, Finn consummated another purchase from Vitale. During the negotiations Vitale told Finn that he would go 'uptown' to obtain the narcotic, and in fact, Vitale drove north and entered Lubrano's store on East 56th Street. During Vitale's visit he briefly left the store several times to place calls from a phone in the nearby Gion Bar.

Against this background of initially limited interaction the principal evidence inculpating Lubrano stands in sharp relief. On August 20, 1973, after government agents gave Finn $3,750, he drove to and entered the Gion Bar where he spoke with Rizzo. Shortly afterward, Lubrano entered the bar and Rizzo introduced him to Finn. Minutes later Lubrano and Finn left the bar, walked around the corner to the Gaiety East Luncheonette and entered it together. Although there is no direct evidence of what happened once they were inside, when Finn left the luncheonette three to five minutes later, there was a bulge in the left front pocket of his clothing, and he later gave government agents a package containing 112.2 grams of cocaine.

Finally, on October 4, 1973, Lubrano entered an apartment building near his jewelry store and Finn followed shortly thereafter. Fifteen to twenty minutes later, Finn left the building and at a predetermined spot met with government agents who gave him $6,400 and told him to purchase a quarter kilogram of cocaine. Finn returned and re-entered the apartment building. His subsequent rendezvous with and search by government agents disclosed that after leaving the building he had the cocaine but no longer the money he had earlier received.

SUFFICIENCY OF EVIDENCE

Appellant, placing particular emphasis on United States v. Vilhotti, 452 F.2d 1186 (2d Cir. 1971); cert. denied, 406 U.S. 947, 92 S.Ct. 2051, 32 L.Ed.2d 335 (1972); and United States v. Cimino, 321 F.2d 509 (2d Cir. 1963); cert. denied, 375 U.S. 974, 84 S.Ct. 491, 11 L.Ed.2d 418 (1964), argues that the evidence is insufficient as a matter of law because, at best, it proves only that he was associated with the co-conspirators or merely present at the scene of their crimes.

Page 636

Finn, the key participant, was no longer living at the time of the trial and therefore, most of the evidence adduced against Lubrano was circumstantial. However, after reviewing the facts and permissible inferences therefrom, we conclude that the evidence was sufficient for a jury to find appellant guilty beyond a reasonable doubt. The events of any particular day in isolation from all the rest may be inconclusive, but taken together, the jury could properly have found that Rizzo led Finn to Vitale, who supplied him with cocaine, that Vitale obtained the cocaine from Lubrano, and that Lubrano dealt directly with Finn on August 20th and October 4th.

We have examined the cases cited by appellant which discuss the sufficiency of evidence, but although we do not disagree with those decisions or their rationale, they are of little assistance. In Vilhotti the government argued that two defendants' mere presence in a garage containing stolen goods was sufficient to sustain their convictions of receiving and possessing stolen goods, and the court reversed. In the instant case, the jury could have found that appellant was not merely present, but was an active participant. Considering the events of August 20th and October 4th as a whole, the jury properly could have concluded beyond a reasonable doubt that Lubrano twice sold Finn cocaine.

Appellant also relies on Cimino for the proposition that a mere meeting is not evidence of a conspiracy where no witness overheard the defendants' conversations or...

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27 practice notes
  • U.S. v. Pedroza, Nos. 136
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 11, 1984
    ...explanation for such matters as the understanding or intent with which certain acts were performed. See, e.g., United States v. Lubrano, 529 F.2d 633, 637 (2d Cir.1975), cert. denied, 429 U.S. 818, 97 S.Ct. 61, 50 L.Ed.2d 78 (1976); United States v. Manfredonia, 414 F.2d 760, 765 (2d Cir.19......
  • U.S. v. Stoner, No. 94-6377
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • October 10, 1996
    ...the defendant was acquitted "in evaluating the sufficiency of the evidence as to the conspiracy count" (quoting United States v. Lubrano, 529 F.2d 633, 636 n. 1 (2d Cir.1975), cert. denied, 429 U.S. 818, 97 S.Ct. 61, 50 L.Ed.2d 78 3 In her insightful dissent, Judge Briscoe concludes that th......
  • U.S. v. Baker, No. 00-13083.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 13, 2005
    ...v. Hawkins, 905 F.2d 1489, 1495 (11th Cir.1990); United States v. Love, 767 F.2d 1052, 1063 (4th Cir.1985); United States v. Lubrano, 529 F.2d 633, 637 (2d 18. Appellants argue that Casas' statements concerning Williams' failure to speak with the police about the shooting constitute impermi......
  • Woods v. State, 5 Div. 393
    • United States
    • Alabama Court of Criminal Appeals
    • January 24, 1978
    ...United States v. Henderson, 404 F.2d 832 (9th Cir. 1968); Bacino v. United States, 316 F.2d 11 (10th Cir. 1963); United States v. Lubrano, 529 F.2d 633 (2nd Cir. The trial judge should consider the alleged misconduct on the basis of how it might affect or influence men of ordinary impressio......
  • Request a trial to view additional results
27 cases
  • U.S. v. Pedroza, Nos. 136
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 11, 1984
    ...explanation for such matters as the understanding or intent with which certain acts were performed. See, e.g., United States v. Lubrano, 529 F.2d 633, 637 (2d Cir.1975), cert. denied, 429 U.S. 818, 97 S.Ct. 61, 50 L.Ed.2d 78 (1976); United States v. Manfredonia, 414 F.2d 760, 765 (2d Cir.19......
  • U.S. v. Stoner, No. 94-6377
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • October 10, 1996
    ...the defendant was acquitted "in evaluating the sufficiency of the evidence as to the conspiracy count" (quoting United States v. Lubrano, 529 F.2d 633, 636 n. 1 (2d Cir.1975), cert. denied, 429 U.S. 818, 97 S.Ct. 61, 50 L.Ed.2d 78 3 In her insightful dissent, Judge Briscoe concludes that th......
  • U.S. v. Baker, No. 00-13083.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 13, 2005
    ...v. Hawkins, 905 F.2d 1489, 1495 (11th Cir.1990); United States v. Love, 767 F.2d 1052, 1063 (4th Cir.1985); United States v. Lubrano, 529 F.2d 633, 637 (2d 18. Appellants argue that Casas' statements concerning Williams' failure to speak with the police about the shooting constitute impermi......
  • Woods v. State, 5 Div. 393
    • United States
    • Alabama Court of Criminal Appeals
    • January 24, 1978
    ...United States v. Henderson, 404 F.2d 832 (9th Cir. 1968); Bacino v. United States, 316 F.2d 11 (10th Cir. 1963); United States v. Lubrano, 529 F.2d 633 (2nd Cir. The trial judge should consider the alleged misconduct on the basis of how it might affect or influence men of ordinary impressio......
  • Request a trial to view additional results

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