U.S. v. Magnano

• Decision Date: 07 September 1976
• Docket Number: Nos.1011,76-1064 and 76-1137,76-1062,76-1058,s.1011
• Citation: 543 F.2d 431
• Parties: UNITED STATES of America, Appellee, v. Joseph MAGNANO, a/k/a "Joe the Grind", et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

Page 431

543 F.2d 431

UNITED STATES of America, Appellee, v. Joseph MAGNANO, a/k/a "Joe the Grind", et al., Defendants-Appellants.

Nos.1011, 76-1058, 76-1062, 76-1064 and 76-1137.

United States Court of Appeals Second Circuit.

Argued May 5, 1976.

Decided Sept. 7, 1976.

Gretchen White Oberman, New York City, for defendants-appellants Magnano and Pallatta.

Gilbert Epstein, New York City (Stokamer & Epstein, New York City, on the brief), for defendant-appellant Bollella.

H. Richard Uviller, New York City, for defendant-appellant De Lutro.

Robert Blossner, New York City, for defendant-appellant Soldano.

Jeffrey C. Hoffman, New York City (Steven Duke and John L. Pollok, New York City, of counsel), for defendant-appellant Lucas.

Dominic F. Amorosa, Asst. U.S. Atty., New York City (Robert B. Fiske, Jr., U.S. Atty., S.D.N.Y., New York City, Nathaniel H. Akerman, Federico E. Virella, Jr., Howard S. Sussman, Lawrence B. Pedowitz and John C. Sabetta, Asst. U.S. Attys., New York City, of counsel), for appellee.

Before HAYS and MULLIGAN, Circuit Judges, and PALMIERI, District Judge. ^*

HAYS, Circuit Judge:

Defendants-Appellants, asserting a host of alleged errors below, appeal from judgments of conviction for conspiring to traffic in narcotics and substantive violations of the narcotics laws. Only six of appellants' many arguments warrant discussion in this opinion. We have carefully considered each of the numerous claimed infirmities in their convictions and find none to be meritorious.

The facts adduced at trial evidenced a narcotics conspiracy network not dissimilar, except perhaps in the quantities involved, from many such conspiracies this Court has been called upon to review. The conspiracy, in broad outline, assumed the customary structure of suppliers, distributors, and retailers. Some members of the conspiracy, depending on their functional level, dealt only with a few other members above or below them while other members transacted business up and down the chain. The evidence at trial, as found by the jury, proved that appellants Pallatta, Magnano, Bollella, De Lutro and Soldano individually and/or collectively sold heroin to the partnership of Ernest Malizia, Mario Perna and Anthony Verzino ("the distributors" or "the core group"). Malizia is a fugitive; Perna and Verzino were unindicted coconspirators who testified for the Government. Appellant Lucas, a retailer, was the distributor's largest customer and, controlling his own large street level distribution network, purchased in excess of 100 pounds of heroin during the conspiracy.

I. Single Conspiracy

As is usual in narcotics conspiracy cases the allegation is here made that although the defendants were indicted and convicted as members of a single conspiracy the proof at trial showed multiple conspiracies. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Thus, while Magnano, Bollella and Pallatta jointly supplied the distributors, it is claimed that they formed no part of a conspiracy involving the other two suppliers, De Lutro and Soldano, each of whom also sold narcotics to the distributors. The appellants claim the existence of at least three distinct conspiracies with each conspiracy defined by the supplier. In support of this claim appellants rely on the distinguishing facts that the distributors bought from De Lutro and from Soldano only once. Both these transactions were for pure heroin on a cash basis. In contrast, the transactions with the Magnano-Bollella-Pallatta partnership were numerous, generally credit exchanges and for diluted heroin.

We find the multiple conspiracy argument pressed by appellants with their particular emphasis on the single act doctrine singularly unpersuasive. Precedent within this Circuit abounds for the proposition that one who deals in large quantities of narcotics may be presumed to know that he is a part of a venture which extends beyond his individual participation. United States v. Ortega-Alvarez, 506 F.2d 455, 457 (2d Cir. 1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1559, 43 L.Ed.2d 775 (1975); United States v. Mallah, 503 F.2d 971, 983-84 (2d Cir. 1974), cert. denied, 420 U.S. 995, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1975); United States v. Sisca, 503 F.2d 1337, 1345 (2d Cir.), cert. denied, 419 U.S. 1008, 95 S.Ct. 328, 42 L.Ed.2d 283 (1974); United States v. Arroyo, 494 F.2d 1316, 1319 (2d Cir.), cert. denied, 419 U.S. 827, 95 S.Ct. 46, 42 L.Ed.2d 51 (1974); United States v. Bynum, 485 F.2d 490, 495-96 (2d Cir. 1973), vacated and remanded on other grounds, 417 U.S. 903, 94 S.Ct. 2598, 41 L.Ed.2d 209 (1974). The nature of the enterprise determines whether this presumption or inference of knowledge of broader scope and participation in a single conspiracy is justified. United States v. Agueci, 310 F.2d 817, 827 (2d Cir. 1962), cert. denied, 372 U.S. 959, 83 S.Ct. 1013, 10 L.Ed.2d 11 (1963). The suppliers in the instant conspiracy, each of whom dealt directly with a member or members of the distribution core group of Perna, Malizia and Verzino, provided that group with approximately 140 pounds of heroin. By virtue of this quantity the vertical nature of the conspiracy was known to the suppliers and customers. As expressed in United States v. Bruno, 105 F.2d 921, 922 (2d Cir.), rev'd on other grounds, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257 (1939):

"(T)he smugglers knew that the middlemen must sell to retailers, and the retailers knew that the middlemen must buy of importers of one sort or another. Thus the conspirators at one end of the chain knew that the unlawful business would not, and could not, stop with their buyers; and those at the other end knew that it had not begun with their sellers."

The quantities involved, moreover, permit the inference that the suppliers must have known their was a horizontal scope to the conspiracy such that others were similarly performing in the supply role. See United States v. Miley, 513 F.2d 1191, 1207 (2d Cir. 1975), cert. denied, 423 U.S. 842, 96 S.Ct. 74, 46 L.Ed.2d 67 (1976); United States v. Bynum, supra, 485 F.2d at 495-497. This inference of knowledge, furthermore, is buttressed by evidence that the Magnano-Bollella-Pallatta partnership had actual knowledge that the distributors were purchasing from another source with monies owed to the partnership from credit sales to the core group. ¹

For much the same reasons the fact that De Lutro and Soldano each only consummated one transaction with the core group does not render their participation insufficient to warrant their inclusion in the single conspiracy charged. The so-called single transaction rule, see, e. g., United States v. DeNoia, 451 F.2d 979, 981 (2d Cir. 1971) (per curiam); United States v. Aviles, 274 F.2d 179, 190 (2d Cir.), cert. denied, 362 U.S. 974, 80 S.Ct. 1057, 4 L.Ed.2d 1009 (1960); United States v. Stromberg, 268 F.2d 256, 267 (2d Cir.), cert. denied, 361 U.S. 863, 80 S.Ct. 119, 4 L.Ed.2d 102 (1959), recognizes that a single isolated act does not, per se, support an inference that a defendant had knowledge of, or acquiesced in, a larger conspiratorial scheme. It is only "when there is no independent evidence tending to prove that the defendant had some knowledge of the broader conspiracy and when the single transaction is not in itself one from which such knowledge might be inferred," United States v. Agueci, supra, 310 F.2d at 836, that the single act is an insufficient predicate upon which to link the actor to the overall conspiracy. See, United States v. Sperling, 506 F.2d 1323, 1342 (2d Cir. 1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439 (1975); United States v. Reina, 242 F.2d 302, 306 (2d Cir.), cert. denied, 354 U.S. 913, 77 S.Ct. 1294, 1 L.Ed.2d 1427 (1957). Each of the "single acts" here De Lutro's sale of five kilos pure heroin and Soldano's sale of three kilos was to core members of the conspiracy and of such a magnitude as to justify "an inference that each knew he was involved in a criminal enterprise of substantial scope." United States v. DeNoia, supra, 451 F.2d at 981. See, United States v. La Vecchia, 513 F.2d 1210, 1219 (2d Cir. 1975); United States v. Tramunti, 513 F.2d 1087, 1111-12 (2d Cir.), cert. denied, 419 U.S. 1079, 95 S.Ct. 667, 42 L.Ed.2d 673 (1975); United States v. Torres, 503 F.2d 1120, 1124 (2d Cir. 1974). ²

II. Prior Similar Crimes Evidence

Government witness Verzino was permitted to testify to narcotics dealings he had with appellants Pallatta, Magnano, De Lutro, Bollella and Lucas several years before the conspiracy charged in the indictment commenced. Appellants claim admission of this testimony was error. We disagree.

The prior similar crimes testimony was admitted to explain how Verzino, who had been incarcerated from 1966 through August, 1973, was able to become an accepted member of the conspiracy upon his release. Evidence of prior criminal acts is admissible unless offered solely to prove criminal character or disposition or the proffered evidence is of such a highly prejudicial nature as to overwhelm its probative value. United States v. Santiago, 528 F.2d 1130, 1134 (2d Cir.), cert. denied, 425 U.S. 972, 96 S.Ct. 2169, 48 L.Ed.2d 795 (1976). Here, as in United States v. Natale, 526 F.2d 1160, 1173-74 (2d Cir.), cert. denied, 425 U.S. 950, 96 S.Ct. 1724, 48 L.Ed.2d 193 (1976), the Government offered the prior crime evidence for the legitimate purpose of showing the background and development of the conspiracy, and the district judge, properly exercising his discretion, committed no error in allowing its admission.

III. The Charge to the Jury

Appellants have compiled an assortment of claimed errors in the trial court's instructions which they argue compel reversal. Reviewing the instructions as a whole, Cupp v. Naughton, 414 U.S. 141, 146-47, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973), we find these claims devoid of merit. We here address only the errors claimed in the court's instructions on...