United States v. Bruno, 339.
| Citation | 105 F.2d 921 |
| Decision Date | 10 July 1939 |
| Docket Number | No. 339.,339. |
| Parties | UNITED STATES v. BRUNO et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Herbert Zelenko, of New York City, for appellant Bruno.
Salvatore J. Iannucci, of New York City (M. Michael Edelstein, of New York City, of counsel), for appellant Iacono.
John T. Cahill, U. S. Atty., of New York City (Joseph P. Martin, Abel I. Smith, Jr., and William F. Young, Asst. U. S. Attys., all of New York City, of counsel), for the United States.
Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.
Bruno and Iacono were indicted along with 86 others for a conspiracy to import, sell and possess narcotics; some were acquitted; others, besides these two, were convicted, but they alone appealed. They complain, (1), that if the evidence proved anything, it proved a series of separate conspiracies, and not a single one, as alleged in the indictment; (2) that unlawful telephone "taps" were allowed in evidence against them; (3) that the judge refused to charge the jury properly as to the effect of their failure to take the stand; and (4) that there was not enough evidence to support the verdict.
The first point was made at the conclusion of the prosecution's case: the defendants then moved to dismiss the indictment on the ground that several conspiracies had been proved, and not the one alleged. The evidence allowed the jury to find that there had existed over a substantial period of time a conspiracy embracing a great number of persons, whose object was to smuggle narcotics into the Port of New York and distribute them to addicts both in this city and in Texas and Louisiana. This required the coöperation of four groups of persons; the smugglers who imported the drugs; the middlemen who paid the smugglers and distributed to retailers; and two groups of retailers — one in New York and one in Texas and Louisiana — who supplied the addicts. The defendants assert that there were, therefore, at least three separate conspiracies; one between the smugglers and the middlemen, and one between the middlemen and each group of retailers. The evidence did not disclose any coöperation or communication between the smugglers and either group of retailers, or between the two groups of retailers themselves; however, the 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. That being true, a jury might have found that all the accused were embarked upon a venture, in all parts of which each was a participant, and an abettor in the sense that the success of that part with which he was immediately concerned, was dependent upon the success of the whole. That distinguishes the situation from that in United States v. Peoni, 2 Cir., 100 F.2d 401, where Peoni, the accused, did not know that Regno, his buyer, was to sell the counterfeit bills to Dorsey, and had no interest in whether he did, since Regno might equally well have passed them to innocent persons himself. Rudner v. United States, 6 Cir., 281 F. 516, 519, 520; Jezewski v. United States, 6 Cir., 13 F.2d 599, 602. It might still be argued that there were two conspiracies; one including the smugglers, the middlemen and the New York group, and the other, the smugglers, the middlemen and the Texas & Louisiana group, for there was apparently no privity between the two groups of retailers. That too would be fallacious. Clearly, quoad the smugglers, there was but one conspiracy, for it was of no moment to them whether the middlemen sold to one or more groups of retailers, provided they had a market somewhere. So too of any retailer; he knew that he was a necessary link in a scheme of distribution, and the others, whom he knew to be convenient to its execution, were as much parts of a single undertaking or enterprise as two salesmen in the same shop. We think therefore that there was only one conspiracy, and it is not necessary to decide how far Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314, would independently have covered the situation, had there been more than one.
The next question concerns the admission of evidence alleged to have been incompetent, because derived through the unlawful tapping of a telephone. Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314. This consisted of the...
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TABLE OF CASES
...482, 483 Brown, State v., 931 P.2d 69 (N.M. 1996), 309 Brown, United States v., 823 F.2d 591 (D.C. Cir. 1987), 10 Bruno, United States v., 105 F.2d 921 (2d Cir. 1939), 420, 426 Brunson, State v., 905 P.2d 346 (Wash. 1995), 80 Bullock v. United States, 122 F.2d 213 (D.C. Cir. 1941), 482 Bull......
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§ 29.07 Parties to a Conspiracy
...in their region, but no more. --------Notes:[131] 328 U.S. 750 (1946).[132] 332 U.S. 539 (1947).[133] 100 F.2d 401 (2d Cir. 1938).[134] 105 F.2d 921 (2d Cir. 1939), rev'd on other grounds, 308 U.S. 287 (1939). [135] See § 30.08, infra.[136] Hearsay testimony is inadmissible because if it we......
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§ 29.07 PARTIES TO A CONSPIRACY
...region, but no more.--------Notes:[131] . 328 U.S. 750 (1946).[132] . 332 U.S. 539 (1947).[133] . 100 F.2d 401 (2d Cir. 1938).[134] . 105 F.2d 921 (2d Cir. 1939), rev'd on other grounds, 308 U.S. 287 (1939).[135] . See § 30.08, infra.[136] . Hearsay testimony is inadmissible because if it w......