United States v. De Angelis

• Decision Date: 15 January 1974
• Docket Number: Docket 73-2314.,No. 444,444
• Parties: UNITED STATES of America, Appellee, v. James M. De ANGELIS, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

490 F.2d 1004 (1974)

UNITED STATES of America, Appellee, v. James M. De ANGELIS, Appellant.

No. 444, Docket 73-2314.

United States Court of Appeals, Second Circuit.

Argued November 21, 1973.

Decided January 15, 1974.

Certiorari Denied April 22, 1974.

David A. Depetris, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E. D. New York, and Paul B. Bergman, Asst. U. S. Atty., on the brief), for appellee.

Henry J. Boitel, New York City (Frank Santo, New York City, on the brief), for appellant.

Before LUMBARD, MANSFIELD and MULLIGAN, Circuit Judges.

Certiorari Denied April 22, 1974. See 94 S.Ct. 1970.

LUMBARD, Circuit Judge:

James M. De Angelis appeals from a judgment of conviction in the district court for the Eastern District (Judd, J.), entered July 27, 1973, after a jury convicted him on a four count indictment charging possession of cocaine with intent to distribute it and also the subsequent distribution of the same, each on two separate occasions, in violation of 21 USC sec. 841(a) (1) and 18 USC sec. 2. The appellant was sentenced to concurrent terms of imprisonment of five years on each of the four counts, plus a parole term of seven years.

On June 7, 1973, the first day of the trial, a co-defendant, Joseph Matranga, pled guilty to all four counts of the indictment and thereafter testified at trial as a witness for the defense. Matranga was sentenced at the same time as the appellant to concurrent terms of imprisonment of three years on each count, plus a parole term of five years.

In challenging his conviction, the appellant contends: (1) that the government prosecutor made an unwarranted and prejudicial argument to the jury concerning Matranga's credibility; (2) that the trial court abused its discretion by allowing the principal government witness to remain in the courtroom during the trial; (3) that the court also abused its discretion in allowing the government to cross-examine the appellant concerning a prior conviction; (4) that the court's charge to the jury was prejudicial to the appellant; and (5) that it was error for the trial court to have denied the appellant's request for a hearing to inquire into the government's failure to produce a known informant.

We find the appellant's contentions without merit and accordingly affirm the conviction.

I.

The government's case at trial consisted primarily of the testimony of five agents of the Bureau of Narcotics. The agents' testimony was that on two occasions, April 13, 1972, and May 12, 1972, the appellant and Matranga participated in transactions involving the sale of cocaine to Special Agent Jordison, an undercover agent of the Bureau and the government's principal witness at trial.

Jordison testified that on April 12, 1972, he was introduced to Matranga at the latter's apartment in Brooklyn by an informant, Marilyn Masick. Jordison expressed his interest on that occasion in purchasing cocaine. The sale of an ounce of cocaine for the following day was later arranged between Matranga and Jordison by telephone, the price to be $800. The sale was completed the next afternoon, as agreed upon. According to Jordison, the appellant brought the cocaine to Matranga's apartment shortly after Jordison's arrival, transferred it to Matranga, who sold it in turn to Jordison. The appellant left upon the completion of the transaction, remarking that all was "cool" (i. e. no police undercover activity), that the quality of the merchandise was "good", and that he hoped more business could be done with Jordison in the future. The appellant's automobile and his arrival and departure at Matranga's apartment building were observed and photographed by a surveillance team of narcotics agents.

Jordison kept in touch with Matranga over the ensuing weeks, expressing his continued interest in cocaine. The surveillance of Matranga's apartment building was also maintained. On May 10, 1972, the appellant was again observed and photographed entering and leaving the building. He also drove the same car as in April. The same day Jordison arranged with Matranga by telephone a larger purchase of cocaine, tentatively to take place on the 11th.

On the evening of the 11th, the appellant was again observed at Matranga's building, but no photographs were taken since it was after dark. Jordison also went to Matranga's apartment, where Matranga showed him an eighth of a kilogram of cocaine, and gave him a sample (later tested to be 60.5% pure). The price was to be $2600. Jordison delayed the purchase until the following day, and was told by Matranga that he would be provided an eighth of a kilogram of like quality. Jordison did not encounter the appellant at Matranga's apartment on the 11th.

On May 12th Jordison went again to Matranga's apartment. Once again the appellant brought the cocaine after Jordison's arrival. He transferred it to Matranga, who sold it to Jordison, after which Matranga gave a large although unspecified part of the purchase money to the appellant. Again the appellant's arrival and departure in the same car were observed by the surveillance team. The agents also trailed the appellant after he left and photographed him and the car when he stopped at a car wash. The eighth of a kilogram was later tested to be 47.3% pure.

Matranga was subsequently arrested on November 11, 1972, and the appellant on December 11, 1972. The government's reasons for the delay in the arrests were explained to be the hope to unveil further "connections" through Matranga, who had in the meantime changed apartments. As to the appellant, the agents knew him only as "Jimmy" and it was not until his car was later discovered that he was traced to his mother's home in Brooklyn.

The principal witnesses for the defense were the appellant and Matranga. In regard to the April 13th transaction, they testified that the appellant had come to Matranga's apartment in search of his girlfriend, whom he claimed he often found there. De Angelis denied any use of drugs or any trafficking in them, and specifically denied participation in any sale of cocaine on the 13th. Matranga's testimony supported this, as did that of Zohira Torres, who was one of two women who had been present in Matranga's apartment at the time.

In regard to the May 12th transaction, De Angelis testified that he was not in Brooklyn at the critical time but was on the way to eastern Long Island in the company of two friends, Art Doran and Anthony Palumbo, both of whom also testified in support of this alibi. Matranga also claimed, despite the disparity in purity percentage, that the one-eighth kilogram of cocaine purchased by Jordison on the 12th was the same that he had shown him the previous evening.

Matranga also testified that he had an alternate source of the cocaine sold to Jordison. The source was alleged to be two men, one also named "Jimmy" and the other called "Carlos", with whom he occasionally did business at a bar in Coney Island. Matranga stated that this trafficking on his part was almost entirely to obtain drugs to relieve his sciatic condition.

The appellant also placed in evidence the surveillance photographs which had been taken of him in April and May and which had been turned over to the defense prior to trial. Since no photograph had been taken of the appellant at Matranga's building on May 12th, these photographs presented a scenario consistent with the defense version of the events.

The jury ultimately rejected the defense and found De Angelis guilty on all counts.

II. A—The Prosecutor's Summation concerning the Coercion of Matranga

During the cross-examination of Matranga, the prosecutor established that Matranga had at one point subsequent to his arrest agreed to cooperate with narcotics agents in leading them to further "connections" in the drug trade, but that he had later backed out of the agreement because his source had threatened him and his family. On redirect examination, Matranga said that he had been threatened not by "Jimmy" De Angelis but by his alleged source in Coney Island, the "Jimmy" of "Jimmy" and "Carlos".

In summation, the prosecutor reviewed this evidence as follows:

And then ladies and gentlemen, Agent Jordison gets a call and Matranga says he can\'t cooperate because he has been threatened. Now ladies and gentlemen, it is true he was threatened and ladies and gentlemen it is true he was threatened by his source and ladies and gentlemen it is true he was threatened by his source Jimmy, but now he comes in here and testifies that it was a different Jimmy. Ask yourselves why would a man who has plead sic guilty to the whole thing, why would he do it? Why? Why would he come in and testify for this man? Ladies and gentlemen he was threatened by this man, James De Angelis. . . . Matranga was threatened, threatened by this man because this man was afraid Matranga would give him up.

Despite the fact that he made no objection to this language, or to the prosecutor's questions on cross-examination,¹ the appellant now claims that these remarks were prejudicial to him in that the prosecutor's credibility was thereby placed in conflict with Matranga's before the jury. In support of this contention, the appellant relies on United States v. Puco, 436 F.2d 761 (2nd Cir., 1971), and United States v. Block, 88 F. 2d 618 (2nd Cir., 1937). We do not find these cases in point.

In both Puco and Block, through the use of detailed leading questions on cross-examination, the prosecutor was able to place before the jury pretrial incriminating statements of the witness which were not in evidence and which the witness's own testimony on the stand flatly contradicted. Moreover, in each of those cases the witness, unlike Matranga, had denied his complicity in the alleged crime. Also in Puco it was to the trial prosecutor that the witness had made the prior inconsistent statement which the prosecutor had then spread before the jury.

Here Matranga had admitted his guilt. He admitted that he and...