United States v. Agueci

• Decision Date: 08 November 1962
• Docket Number: No. 99,Docket 27466.,99
• Citation: 310 F.2d 817
• Parties: UNITED STATES of America, Appellee. v. Vito AGUECI, Filippo Cottone, Robert Guippone, Luigi Lo Bue, Matthew Palmieri, Anthony Porcelli, Charles Shiffman, Rocco Scopellitti, Charles Tandler and Joseph Valachi, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

310 F.2d 817 (1962)

UNITED STATES of America, Appellee. v. Vito AGUECI, Filippo Cottone, Robert Guippone, Luigi Lo Bue, Matthew Palmieri, Anthony Porcelli, Charles Shiffman, Rocco Scopellitti, Charles Tandler and Joseph Valachi, Defendants-Appellants.

No. 99, Docket 27466.

United States Court of Appeals Second Circuit.

Argued October 4, 1962.

Decided November 8, 1962.

COPYRIGHT MATERIAL OMITTED

Julian C. Tepper, Brooklyn, for Vito Agueci, appellant.

Jerome Lewis, New York City (Theodore Krieger, New York City, on the brief), for Filippo Cottone, appellant.

Lawrence A. Kobrin, New York City, for Rocco Scopellitti, appellant.

Menahem Stim, New York City, for Joseph Valachi, appellant.

Frances Kahn, New York City, for Luigi Lo Bue, appellant.

Albert J. Krieger, New York City, for Charles Shiffman and Charles Tandler, appellants.

Theodore Krieger, New York City, for Robert Guippone, Anthony Porcelli and Matthew Palmieri, appellants.

T. F. Gilroy Daly, Asst. U. S. Atty., Southern District of New York, New York City (Vincent L. Broderick, U. S. Atty., Sheldon H. Elsen, Arnold N. Enker, Michael F. Armstrong, Peter K. Leisure, Asst. U. S. Attys., on the brief), for appellee.

Before LUMBARD, Chief Judge, and FRIENDLY and KAUFMAN, Circuit Judges.

KAUFMAN, Circuit Judge.

The ten defendants before us appeal their convictions for violation of the federal narcotics laws, 21 U.S.C. §§ 173, 174. The defendants were sentenced to imprisonment for periods ranging from five years to twenty-five years,¹ after a two-month trial before a jury in the Southern District of New York. The indictment, filed on May 22, 1961, contained thirty counts. The first count charged all of the appellants and several others with conspiracy to violate the narcotics laws, commencing in September 1958 and continuing until May 1961; counts two through thirty separately charged various defendants with substantive violations. Several individuals were named in the indictment as coconspirators but not as defendants² and other coconspirators named as defendants were not tried below for various reasons.³ Michael Maiello was also convicted but died while his appeal was pending.

At the trial, the Government's case depended principally upon the testimony of two witnesses, Salvatore Rinaldo and Matteo Palmeri, who had not been named as defendants in the indictment but had been charged with participation in the conspiracy. Their testimony was offered to establish that the appellants and numerous other persons had engaged in a single conspiracy to import from Italy large quantities of heroin, which they adulterated, packaged, distributed, and sold in the United States. The conspiracy, defined generally, involved the importation of narcotics into this country by concealed packages hidden in valises or false-bottom trunks, most of which were unwittingly brought to New York piers by Italian immigrants. These immigrants were requested to bring the trunks and valises to this country by a travel agent in Italy, purportedly as a favor to some friends here. Whenever this method proved for some reason unsatisfactory, one of the appellants would travel abroad in order personally to assure the success of the venture. For convenience, we may refer to the small body of coconspirators who initated the various importations and the subsequent distributions and sales of the narcotics as the "executive group." The Government's witnesses established that the members of this group were Albert Agueci,⁴ Frank Caruso, Vincent Mauro, and John Papalia, none of whom are appellants, and Vito Agueci, Luigi Lo Bue, and Joseph Valachi, appellants here. In addition to these men, appellant Rocco Scopellitti was also implicated in the importation scheme, for he was alleged to have personally imported heroin into this country in August 1960.

Upon ascertaining the precise dates of the arrival in New York of the narcotics being imported, one of the members of the executive group would contact Matteo Palmeri, the Government witness, who ran a bakery in Brooklyn.⁵ Palmeri, using his bakery truck, would drive to Pier 84 in Manhattan, seek out the immigrant who was bringing the trunk or valise containing the narcotics and identify himself as a friend of the Italian travel agent, and return with the trunk or valise to his bakery. On one occasion, when Palmeri's truck was out of order, he enlisted the aid of appellant Filippo Cottone. Palmeri was often assisted by Salvatore Rinaldo, the other chief witness for the Government. Rinaldo would perform a test on the white powder contained in the hidden packages to assure that it was heroin. The packages of narcotics were at first hidden in Palmeri's bakery, and later in Rinaldo's home in Mount Vernon.

Until October 21, 1960, when they were arrested, Palmeri and Rinaldo were the primary distributing agents for the conspiracy. They would be contacted by one of the members of the executive group and instructed to deliver a specified quantity of narcotics to a specified individual at a specified time. Thus, in the month of July 1959, Caruso told Rinaldo to meet with appellant Matthew Palmieri in order to consummate a sale. In December 1959, Valachi introduced appellant Anthony Porcelli to Rinaldo for a like purpose, and in April 1960, Porcelli introduced Rinaldo to another appellant, Ralph Guippone. The three coconspirators — Rinaldo, Porcelli, and Guippone — would adulterate the heroin in Rinaldo's home, sell the product to other individuals named in the indictment but not here on appeal, and share in the proceeds of the sale. In May of 1960, at a racetrack rendezvous, and at the instructions of Caruso, Rinaldo met with appellant Charles Shiffman who was later instrumental in arranging sales of narcotics from Rinaldo to appellant Charles Tandler.

This, in skeleton outline, is the manner in which the alleged conspiracy operated and the manner in which each of the appellants was implicated. This information will be helpful in giving form to the narrative of specific events, which follows.

The indictment charges a continuing conspiracy from September 1958 until the date of its filing, May 22, 1961. The testimony of Government witnesses Palmeri and Rinaldo establishes the sequence of events through October 21, 1960, when both were arrested. In October of 1958, Matteo Palmeri met Albert Agueci, one of the members of the executive group, in Brooklyn; in response to questioning Palmeri indicated that he would be interested in participating in a plan to smuggle diamonds. The following month, appellant Luigi LoBue appeared at Palmeri's bakery in Brooklyn, and he informed Palmeri that he was aware of his interest in diamond smuggling, which information had been conveyed by Albert Agueci. In May of 1959, LoBue again contacted Palmeri, telling him to go to Pier 84 in order to pick up a valise from a named passenger and to identify himself (Palmeri) as a friend of Salvatore Valenti, the Italian travel agent who was allegedly responsible for "planting" the valises with Italian immigrants. Palmeri did so and delivered the valise into LoBue's hands at the bakery. Some days later, LoBue returned to the bakery with five packages which he gave to Palmeri to be hidden. Soon after, Palmeri brought those packages, on LoBue's instructions, to Vincent Mauro, who, along with LoBue, is alleged to have been a member of the executive group. Mauro, over the course of a few days, paid $15,000. to Palmeri, who in turn passed the money on to LoBue; Palmeri was rewarded for his efforts with $300.

In July 1959, LoBue told Palmeri that he had received a letter from Italy and that Palmeri should report to the pier and meet the passenger named in the letter, procure the valise, and return to the bakery. Palmeri did so, and upon observing LoBue remove a blanket from the valise, cut it open and withdraw packages of white powder, Palmeri was told by LoBue that they were dealing not in diamonds but in narcotics. Again, Palmeri was requested to hide the packages, and he again made another sale at Mauro's direction, receiving $15,000. That month, Palmeri was introduced to Salvator Rinaldo, the other chief Government witness, and from that time Palmeri delivered heroin to Rinaldo, in order to facilitate the latter's sales. The first such sale was from Rinaldo to defendant Matthew Palmieri, in exchange for $8500., which money Rinaldo transmitted to Caruso. This incident occurred in July 1959. Another sale on precisely the same terms was carried out between Rinaldo and appellant Palmieri on March 21, 1960.

Rinaldo's position as central distributor became even more secure when, in December 1959, Mauro, of the executive group, told appellant Valachi, another member of that group, that narcotics were to be picked up from Rinaldo. Valachi met with Rinaldo that month, and introduced him to appellant Anthony Porcelli; Valachi said that Porcelli was working for him and that it would be Porcelli who would pick up narcotics from Rinaldo in the future. The next morning, with Valachi standing nearby, Rinaldo delivered a package of heroin to Porcelli, which was paid for over the course of two or three weeks. Rinaldo turned over the proceeds of the sale to Caruso. In January of 1960, Rinaldo was introduced to two additional contacts⁶ to whom further sales were made.

In late January, LoBue notified Palmeri, the baker, that a third shipment of narcotics was arriving in a valise carried by a named Italian immigrant on March 7, 1960. Palmeri performed his usual function, retrieved the valise with the hidden packages of narcotics, and passed these on to Rinaldo, who tested a sample of the substance from each of the packages. He found it to be heroin. Soon thereafter, on March 19, Rinaldo met with appellant Valachi, who informed him that "he was going away", and that in his absence, Rinaldo should deal with appellant Porcelli and with one Michael Maiello. Valachi said that although he was going away,...