U.S. v. Mariani

Decision Date12 January 1984
Docket NumberD,No. 344,344
Citation725 F.2d 862
PartiesUNITED STATES of America, Appellant, v. Francis MARIANI, Defendant-Appellee, Louis Fargnoli, Francis Mariani, and Daniel Miller, Defendants. ocket 83-1221.
CourtU.S. Court of Appeals — Second Circuit

Gregory A. West, Sp. Atty., U.S. Dept. of Justice, Organized Crime and Racketeering Section, Syracuse, N.Y. (Frederick J. Scullin, Jr., U.S. Atty., N.D.N.Y., Syracuse, N.Y., of counsel), for appellant.

John E. DeFrancisco, Syracuse, N.Y., for defendant-appellee.

Before VAN GRAAFEILAND and MESKILL, Circuit Judges, and BONSAL, District Judge. *

MESKILL, Circuit Judge:

The government appeals from a judgment of acquittal in favor of appellee Mariani entered in the United States District Court for the Northern District of New York pursuant to Fed.R.Crim.P. 29(c). Judge McCurn granted the Rule 29(c) motion and set aside the guilty verdict against appellee for conspiring to steal money of the United States in violation of 18 U.S.C. Sec. 641 (1982). The government claimed that defendant planned to sell to Drug Enforcement We reverse the judgment and remand with instructions to reinstate the jury verdict and for further proceedings.

Administration (DEA) agents what was purported to be, but was not in fact, a controlled substance. The charge against Mariani was included in a six count superseding indictment against Louis Fargnoli and Daniel Miller who, in addition to being charged with one count of conspiracy to violate 18 U.S.C. Sec. 641, were also charged with one count of unlawfully conspiring to possess and distribute methamphetamine in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1982), two counts of unlawfully possessing with intent to distribute methamphetamine in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 (1982), and two counts of unlawfully distributing methamphetamine in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 (1982). Mariani made a motion to sever which was denied. The defendants were found guilty on all counts charged, except for Fargnoli who was acquitted on the section 641 count. Mariani was found guilty of conspiring to steal money of the United States, the only charge filed against him.

BACKGROUND

The jury had before it the following evidence. Mariani owned an auto repair shop at which Daniel Miller was an employee. James Horney, an informant for the DEA, contacted Miller at Mariani's shop on several occasions to arrange drug purchases. Horney arranged for two DEA undercover agents to purchase from Miller one pound of methamphetamine for $22,000. The transaction was to take place on December 1, 1982 at a Howard Johnson's restaurant in Binghamton, New York.

Miller and Mariani left the auto repair shop separately on the afternoon of December 1. Miller was later dropped off at the restaurant by an unidentified person driving a blue Lincoln automobile. Miller entered the restaurant and told the agents and Horney that "my man" did not want to consummate the transaction there and that they would have to go to a nearby Burger King to conclude the deal. The DEA agents agreed to the change of plans and all four men departed with Miller riding in Horney's car followed by the DEA agents in another car. Horney patted Miller's chest once while en route to the Burger King and did not detect any package on his person.

When the group arrived at the Burger King parking lot, Mariani was sitting in a blue Lincoln parked in an isolated area. Horney drove in first, parked near the restaurant building and was followed by the DEA agents who parked in front of the Lincoln. The agents observed that the Lincoln's parking lights were on as they drove in and that the headlights were turned on when they approached the car.

Miller, with his jacket unzipped, got out of Horney's car and walked over to the agents' vehicle. Miller pointed to the Lincoln and said "my man's sitting over there" and "you wait here, I've got to go over there and get the package." Miller then walked to the Lincoln and spoke to Mariani through the window on the driver's side. Miller got into the Lincoln through the door on the passenger's side and remained in the car for a short time. When he got out, his jacket was zipped and he cradled his arms against his body.

Miller then walked back to the DEA agents' car, got in and handed a package to the agents. Miller was immediately arrested. Surveillance agents then arrested Mariani, who was seated in the front seat of the Lincoln. When arrested, Mariani stated that, "All I did was give a friend a ride."

Miller and Mariani were transported together to the Binghamton Public Safety Building. While en route, Miller asked the agents why he had been arrested and was told that the charge was selling a controlled substance. Miller stated that the agents should check the package because it did not contain controlled substances. Mariani was taken to Syracuse later that evening. During the trip he remarked that "you guys don't have what you think you got." A subsequent laboratory analysis revealed The jury found Mariani guilty of violating 18 U.S.C. Sec. 641. 1 However, the district court concluded that a reasonable jury could not find him guilty of conspiracy beyond a reasonable doubt and granted Mariani's Rule 29(c) motion for acquittal. That decision appeared to be partly premised on the court's questioning its own earlier ruling denying Mariani's motion for a severance. Judge McCurn stated his belief that evidence introduced against defendants Miller and Fargnoli on the other five counts "spilled over" onto Mariani despite a jury instruction to the contrary. This appeal by the government followed.

that the package contained no traces of methamphetamine.

DISCUSSION

When a defendant moves for a judgment of acquittal, the Court

must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If [it] concludes that upon the evidence there must be such a doubt in a reasonable mind, [it] must grant the motion; or, to state it another way, if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt, the motion must be granted. If [it] concludes that either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, [it] must let the jury decide the matter. (footnotes omitted).

United States v. Taylor, 464 F.2d 240, 243 (2d Cir.1972) (quoting Curley v. United States, 160 F.2d 229, 232-33 (D.C.Cir.), cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947)). Accord United States v. Lieberman, 637 F.2d 95, 104-05 (2d Cir.1980). See Jackson v. Virginia, 443 U.S. 307, 318-19 n. 11, 99 S.Ct. 2781, 2788 n. 11, 61 L.Ed.2d 560 (1979). A reasonable mind must be able to conclude guilt on each and every element of the charged offense. See United States v. Macklin, 671 F.2d 60, 65 (2d Cir.1982) (citing In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 323 (1970)). However, "all reasonable inferences are to be resolved in favor of the prosecution and the trial court is required to view the evidence in the light most favorable to the Government with respect to each element of the offense." United States v. Rodriguez, 702 F.2d 38, 41 (2d Cir.1983) (quoting United States v. Artuso, 618 F.2d 192, 195 (2d Cir.), cert. denied, 449 U.S. 861, 101 S.Ct. 164, 66 L.Ed.2d 77 (1980)). The evidence is to be viewed "not in isolation but in conjunction." United States v. Geaney, 417 F.2d 1116, 1121 (2d Cir.1969), cert. denied, 397 U.S. 1028, 90 S.Ct. 1276, 25 L.Ed.2d 539 (1970). These strict rules are necessary to avoid judicial usurpation of the jury function. The court should not substitute its own determination of the credibility of witnesses, the weight of the evidence and the reasonable inferences to be drawn for that of the jury. Rodriguez, 702 F.2d at 41 (citations omitted).

Mariani was charged with conspiracy to steal money of the United States. 18 U.S.C. Sec. 641 (1982). To convict him the jury had to find beyond a reasonable doubt that he participated in the conspiracy rather than merely associated with the conspirators. See United States v. Terry, 702 F.2d 299, 320 (2d Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 2095, 77 L.Ed.2d 304 (1983); United States v. Ragland, 375 F.2d 471, 477 (2d Cir.1967), cert. denied, 390 U.S. 925, 88 S.Ct. 860, 19 L.Ed.2d 987 (1968) ("illicit association"). Conspiracy can be proven circumstantially; direct evidence is not crucial. See United States v. Barnes, 604 F.2d 121, 156 (2d Cir.1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980). Seemingly innocent acts taken individually may indicate complicity when viewed collectively and with reference to the circumstances in general. See United States v. Carson, 702 F.2d 351, 362 (2d Cir.), cert. denied, --- U.S....

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