United States v. Armone

• Decision Date: 08 July 1966
• Docket Number: Docket 30135.,No. 240,240
• Citation: 363 F.2d 385
• Parties: UNITED STATES of America, Appellee, v. Joseph ARMONE, Stephen Grammauta, Vincent Pacelli, and Nicholas Viscardi, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

363 F.2d 385 (1966)

UNITED STATES of America, Appellee, v. Joseph ARMONE, Stephen Grammauta, Vincent Pacelli, and Nicholas Viscardi, Appellants.

No. 240, Docket 30135.

United States Court of Appeals Second Circuit.

Argued March 4, 1966.

Decided July 8, 1966.

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Jerome Lewis, Brooklyn, N. Y., for defendants-appellants Armone and Grammauta.

E. Barrett Prettyman, Jr., Washington, D. C. (Robert Kasanof and Albert J. Krieger, New York City, on the brief), for appellant Pacelli.

Edmund A. Rosner, New York City (Edward Cherney, New York City, on the brief), for defendant-appellant Viscardi.

Robert G. Morvillo, New York City (Robert M. Morgenthau, U. S. Atty. for Southern District of New York, Howard L. Jacobs, Otto G. Obermaier, John S. Allee, New York City, on the brief), for appellee.

Before LUMBARD, Chief Judge, KAUFMAN, Circuit Judge, and FEINBERG, Circuit Judge.^*

FEINBERG, Circuit Judge:

Four defendants appeal from convictions of violating the conspiracy provision of the federal narcotics laws, 21 U.S.C. §§ 173, 174. The single-count indictment named twenty-eight co-conspirators, twelve of whom were charged as defendants. The trial was originally scheduled to begin on April 27, 1965, with eight of the named defendants; the remaining four had not yet been apprehended. On that morning, two of the defendants became fugitives, requiring a one-week continuance. The trial of the other six defendants began on May 3, 1965 before Judge Bonsal and a jury.¹ On June 22, 1965, the jury convicted appellants Joseph Armone, Stephen Grammauta, Vincent Pacelli and Nicholas Viscardi, and acquitted Alfred Armone and Alexander Schoenfeld. On July 29, 1965, Judge Bonsal sentenced Joseph Armone to fifteen years, Grammauta to eight years, Pacelli to eighteen years, and Viscardi to five years.² We affirm the convictions as to all four appellants.

Since the main arguments in this court are not directed to the sufficiency of the evidence, the facts developed at the seven-week trial will not be outlined in detail.³ Viewing the government's case after a jury verdict of guilty in the light most favorable to the prosecution, as we must, it was, briefly, that appellants, together with the co-defendants and co-conspirators, conspired from 1956 through 1960 to import and distribute heroin in the United States. The drugs originated in France, and would be smuggled into this country with the aid of couriers, who usually travelled as part of their occupations. For example, Clarence Aspelund, a seaman, would transport heroin for exporter Marius Aranci in Marseilles, and Charles Bourbonnais, a flight purser, would bring in the drug for Felix Barnier in Paris. Mauricio Rosal, a Guatemalan ambassador, and Etienne Tarditti, a French businessman, also acted as couriers for Barnier.

The couriers initially delivered the drugs, once in this country, to Joseph Cahill, whose base of operations was New York City; eventually, Charles Hedges and Nicholas Calamaris took Cahill's role. Joseph Armone, one of the importers, would direct the eventual sale of the drugs to domestic wholesalers Vincent Pacelli and Michael Ricucci. Stephen Grammauta and Arnold Romano were also importers. Nicholas Viscardi acted as a storer of the narcotics pending delivery to wholesalers.

Many transactions were detailed at the trial. In 1956, Aspelund met Cahill in New York, and thereafter reported to his principal (Aranci) that Cahill had requested narcotics. A six or eight kilo delivery, by way of Norfolk (because of complications in the New York harbor), was the fruit of this meeting. For the next three years Aspelund would bring in heroin for Cahill about three times a year. Bourbonnais would also bring in narcotics for Cahill, several kilos at a time; both couriers were paid by Cahill. Hedges, meanwhile, became a domestic deliverer for the latter, and was introduced to the conspirators' rendezvous at the Amvets Club; he was eventually promoted to direct dealings with the couriers.

Heroin from Pierre Roulet, an airline steward, would be taken by Hedges at first to Cahill's apartment, and later on to his own, where it would be picked up by Viscardi. Hedges would also deliver to various automobiles under the control of conspirators. In 1958, Hedges was introduced to Pacelli, and arrangements were made for deliveries directly to him by Hedges. In November 1958, Hedges made a delivery to Grammauta, who drove off with Viscardi.

On occasion, Hedges would meet with Joseph Armone at the Amvets Club to discuss some aspect of the dealings with the exporters' couriers. Payments from wholesalers were often turned over to Armone or Grammauta by Hedges, as the latter became involved in sales by the importers. Pacelli would sometimes furnish an automobile for Hedges's transportation. Hedges would pick up heroin at Viscardi's apartment, where it had been stored, for delivery to wholesalers, and he became a liason between Armone and Pacelli. James Godwin, referred to in testimony quoted below in connection with the overt act problem, was Hedges's cousin; Godwin was often a witness to parts of the transactions involving Hedges and Pacelli.

During a lull in 1959-1960, Armone told Hedges that they would "get started" soon after a few things were "straightened out." Activity began again in February 1960, when Pacelli asked Hedges if he could obtain some heroin. Hedges relayed the request to Armone, who complained that Pacelli was not paying in advance, or a high enough price. Armone eventually relented and the transaction was consummated. A few months later, Hedges demanded more money from Armone for himself; the latter authorized an extra $50. In the fall of 1960, certain couriers were arrested; Hedges was convicted in the District of Connecticut in March 1961.⁴ Godwin saw Armone that month in an attempt to raise collateral for Hedges's appeal bond. Armone said that he had no money; a few months later Godwin pointed out that unless Hedges was given some help, as in raising bail, he might cooperate with the government. Armone said that another conspirator had gone to prison and "kept his mouth shut and Charlie could do the same." In September 1964, the indictment in the present case was filed, and Hedges became the prosecution's leading witness.

The four appellants make various contentions on appeal. Their arguments will be considered under the name of the defendant primarily pressing the point. Those points raised by defendant Pacelli will be dealt with first; thereafter, to the extent that they have not already been covered, the arguments of Armone and Grammauta, made jointly, and Viscardi will be considered.

I. PACELLI

§ 174 Inference

Pacelli first argues that the trial judge's handling of the statutory inference set forth in 21 U.S.C. § 174 violated his rights under the Fifth and Sixth Amendments. The words of the statute are:

Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.

This provision was held constitutional over forty years ago. Yee Hem v. United States, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904 (1925); see Orozco-Vasquez v. United States, 344 F.2d 827, 829 (9th Cir. 1965); United States v. Sorenson, 330 F.2d 1018, 1021 (2d Cir. 1964), cert. denied, 380 U.S. 945, 85 S.Ct. 1027, 13 L.Ed.2d 963 (1965). Referring to this section, Judge Bonsal told the jury that:

Section 174 further provides that if a defendant is shown to have had possession of the narcotic drug, such possession, unless the defendant explains the possession to your satisfaction, may be deemed by you sufficient evidence for you to infer his knowledge of the unlawful importation of the narcotic drug contrary to law.

* * * * * *

The government contends, and each of the defendants denies, that each defendant had knowledge of the illegal importation of the narcotic drug. The government contends that the evidence shows that each of the defendants except Alfred Armone was shown to have had actual or constructive possession of the narcotic drug and that they have not offered an explanation as to their possession. You will recall that Section 174 which I just referred to, provides that if a defendant has actual or constructive possession of the narcotic drug, you may infer that he knew the narcotics were illegally imported into the United States unless he has given you a satisfactory explanation of his possession.

Pacelli did not testify at the trial.⁵ He first claims that this charge was an adverse comment on his failure to take the stand, depriving him of his Fifth Amendment rights not to be compelled to be a witness against himself and of due process. Pacelli also argues that the charge created a presumption against him because he did not take the stand and thereby violated 18 U.S.C. § 3481.⁶ Appellant relies heavily on the recent Supreme Court decision in United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965). That case dealt with a provision in the Internal Revenue Code, which the Court recognized as similar to section 174. United States v. Gainey, supra at 64-65 n. 2, 85 S.Ct. 754. The Code provides that the presence of a defendant at a site where the business of a distiller is being carried on unlawfully is sufficient to authorize conviction "unless the defendant explains such presence to the satisfaction of the jury." Int.Rev.Code of 1954, § 5601(b) (2). In affirming the conviction of defendant Gainey, the Court upheld a charge similar to that given by Judge Bonsal and specifically rejected the contention that the charge could "be fairly understood as a comment on the petitioner's failure to testify." United States v. Gainey, supra at 70-71, 85 S.Ct. at 759. Similarly, in United...