U.S. v. Lubrano

• Decision Date: 30 December 1975
• Docket Number: D,No. 254,254
• Citation: 529 F.2d 633
• Parties: UNITED STATES of America, Appellee, v. Philip LUBRANO, Appellant. ocket 75--1158.
• Court: U.S. Court of Appeals — Second Circuit

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.

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.

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 saw anything pass from one to the other. Cimino's affirmance was predicated on the additional evidence of an admission by one of the defendants. But although no one saw or heard what was said or done by Lubrano or Finn inside the luncheonette and apartment building, there was evidence that cocaine had passed 'from one to the other'. When Finn left the luncheonette his left pocket was bulging, and there is no evidence that he placed anything in that pocket before reaching the predetermined rendezvous point where a search by government agents yielded cocaine. The same is true of the October 4th apartment building transaction. These facts in the context of the additional circumstantial proof render any innocent explanation fanciful. Even if an innocent explanation of Lubrano's actions was plausible, we note in passing the settled law in this circuit that, to be sufficient as a matter of law, circumstantial evidence need not exclude all possible inferences but those of guilt. United States v. Woodner, 317 F.2d 649, 651 (2d Cir.), cert. denied, 375 U.S. 903, 84 S.Ct. 192, 11 L.Ed.2d 144 (1963). Questions of sufficiency of the evidence are often sui generis. The appropriate determination varies with the particular facts sub judice. In this case those facts were sufficient as a matter of law for the jury to convict appellant of conspiracy to distribute narcotics. ¹

EVIDENTIARY RULINGS

Appellant also asserts as error several evidentiary rulings concerning the testimony of Government Agent Peterson, who supervised and directed Finn's activities. First, appellant argues that the reception of Peterson's testimony which contained his instructions ² to Appellant also contends that portions of Peterson's testimony should have been stricken on the grounds that Peterson lacked personal knowledge of the events in question and was acting as a conduit for inadmissible hearsay which he couched in narrative terms. In particular, appellant asserts that the reception of the following question and answer on re-direct was reversible error:

Finn was improper. These instructions frequently linked appellant with Finn's activities, and for this reason appellant asserts they were prejudicial. We disagree. The instructions by the principal, Peterson, to his agent, Finn, immediately preceding Finn's meeting with Lubrano and the other defendants were relevant to aid the jury in understanding the background events leading up to the crimes in question. United States v. Ruggiero, 472 F.2d 599, 607 (2d Cir.), cert. denied, 412 U.S. 939, 93 S.Ct. 2772, 37 L.Ed.2d 398 (1973); United States v. Manfredonia, 414 F.2d 760, 765 (2d Cir. 1969). Although they were inadmissible as proof of the matters asserted, if a limiting instruction had been requested, it might well have been given. Manfredonia, id.

'Q. Agent Peterson, what cocaine that has been introduced into evidence during this trial do you attribute to the defendant Lubrano?

'A. The May 10th and 11th transaction; the August 20th transaction, and the October 4th transaction.' (Tr. 466).

Appellant's previous cross-examination of Peterson demonstrated that Peterson's 'attribution' testimony was not based on firsthand observation of any sort. See, e.g., Tr. 279--280. Peterson's testimony resulted from hearsay of Finn, and as such it would have been inadmissible absent other factors. United States v. Borelli, 336 F.2d 376, 392 (2d Cir. 1964); cert. denied sub nom. Cinquegrano v. United States, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965); 2 Wigmore, Evidence, § 657(a) (1940 ed.). However, appellant opened the door to the reception of...