United States v. Cardi

• Decision Date: 16 April 1973
• Docket Number: 72-1167 and 72-1159.,No. 72-1005,72-1005
• Citation: 478 F.2d 1362
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Chris CARDI and Virgil Cimmino, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

478 F.2d 1362 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Chris CARDI and Virgil Cimmino, Defendants-Appellants.

Nos. 72-1005, 72-1167 and 72-1159.

United States Court of Appeals, Seventh Circuit.

Argued November 1, 1972.

Decided April 16, 1973.

Rehearing Denied July 2, 1973.

COPYRIGHT MATERIAL OMITTED

Albert E. Jenner, Jr., Thomas P. Sullivan, Alan L. Metz, Robert S. Bailey, Chicago, Ill., for defendants-appellants.

James R. Thompson, U. S. Atty., William T. Huyck, Asst. U. S. Atty., Chicago, Ill., Sidney M. Glazer, Kirby W. Patterson, Criminal Division, U. S. Department of Justice, Washington, D. C., for plaintiff-appellee.

Before SWYGERT, Chief Judge, CASTLE, Senior Circuit Judge, and PELL, Circuit Judge.

Rehearing Denied No. 72-1005. July 2, 1973.

SWYGERT, Chief Judge.

Appellants Cardi and Cimmino appeal their convictions of conspiracy to conceal, buy and sell narcotic drugs known to have been unlawfully imported and of three substantive counts charging the unlawful sale of such drugs.¹ Although separate appeals were filed by each defendant, on motion of the Government they were consolidated for purposes of oral argument and will be treated together for purposes of this opinion.

The Government's evidence consisted primarily of testimony by two witnesses, Paul Moore, a law school student and paid informer for the Bureau of Narcotics, and Federal Narcotics Agent Saul Weinstein. According to their testimony, Moore and Weinstein conceived the idea that they might infiltrate certain groups which they believed to be dealing in the Chicago area narcotics traffic by posing as partners trying to establish a narcotics business in the various college communities. Pursuant to that plan on September 13, 1970 Moore asked Micelli, a fellow employee at a restaurant where Moore worked part-time, if Micelli could provide a source for the sale of hard drugs to Moore and an unnamed partner who wanted to get in the campus drug business. Micelli referred Moore to his nephew, Virgil Cimmino, who he said could take care of him.

Subsequently on September 14, 1970 Moore went to Chris Cardi's house where he explained his plans to Cimmino and requested that Cimmino get certain prices on heroin and cocaine from his sources. A meeting between Cimmino, Moore and Weinstein was set for September 16. Cimmino failed to keep the appointment. Moore located Cimmino at Cardi's home on September 19 and asked him why he had not met them. Cimmino responded by saying that his sources had been out of town. Another meeting was arranged for the following evening. Weinstein failed to make that meeting, and Moore and Cimmino arranged another for the following evening. Cimmino again failed to appear and this time both Moore and Weinstein went to Cardi's house to find Cimmino. When they arrived they found Cimmino and Cardi standing beside Cimmino's car talking together. Moore introduced Weinstein to Cimmino and the three discussed the plan to enter the narcotics business with Cimmino as the supplier. During this conversation, Cardi was leaning against Cimmino's car and also walking on the lawn. There is no evidence, however, that he took part in the discussion.

Moore and Weinstein next met Cimmino in Elmwood Park, Illinois, where Cimmino gave them a bag which he said contained four ounces of heroin. In exchange Moore gave him $4400. Upon testing the substance at a later time, Weinstein discovered that it was flour instead of heroin. Moore and Weinstein immediately began searching for Cimmino, but were unable to locate him. The next day they drove to Cardi's house where Moore told Cardi about the bogus sale. Moore and Weinstein both testified that Cardi responded, "If it was anybody but you, I wouldn't talk about the stuff. But I will check into it and do whatever can be done. . . . You'll get it."

Two hours later Cimmino reached Moore by phone, saying: "Are you trying to get me killed? . . . You're going to get your stuff. Dickie Cardi's nickname is on my back. He slapped me around and I lost my job collecting. I had five or six stops and I was making $150 a week." Weinstein demanded that Cimmino produce real heroin or return the money. The next day Cimmino met Moore and Weinstein and gave them four ounces of heroin. This sale was the basis of Count III of the indictment.

On September 30 Cimmino agreed to procure an additional eight ounces of heroin for Moore. The following day, October 1, he delivered a sock containing the heroin to Moore and Weinstein at a restaurant in Chicago. Moore paid Cimmino $8800 for the heroin and asked Cimmino to arrange for a further sale of eight ounces of cocaine for $8000. This order was confirmed by a telephone conversation between Cimmino and Moore on October 13. The delivery was made on October 15 when Cimmino delivered the drugs in a black sock and received the $8000. The October 1 sale was charged in Count V of the indictment and the October 15 sale in Count VII. Both Cardi and Cimmino were found guilty of Counts III, V and VII.

Although the October 15 sale was the last actual sale, Moore and Cimmino continued to have telephone conversations concerning possible future sales. Moore's attempt to arrange a meeting with Cimmino's source was unsuccessful, but he did manage to tape a phone conversation in which Cimmino made numerous references to Cardi. Over the defendants' objection, that recording was played for the jury and they were given written copies to follow while it was being played.²

The remaining Government evidence consisted of testimony by two narcotics agents that on November 25 they observed Cimmino and Micelli drive to Cardi's house and go inside. Shortly thereafter Cardi and Cimmino left the house and returned half an hour later accompanied by Micelli. The three defendants remained in the house for approximately thirty minutes before Cimmino and Micelli left and drove home.

Cimmino, testifying in his own behalf, related a different version of the facts. Cardi, who did not testify, relies heavily on Cimmino's testimony. According to Cimmino, the plan to sell narcotics was conceived by Moore and forced upon him. Cimmino stated that he owed Moore money and that he had feared Moore because he believed that Moore had been responsible for a gunshot wound he had received from a passing car in 1968. Nevertheless, Cimmino admitted that in 1970 he had been spending considerable time with Moore on a social basis. It was during this time, according to Cimmino, Moore proposed that they "screw" a rich person that he knew. Moore suggested that they do this by selling him flour instead of heroin. Cimmino told Moore that he wanted no part of it and he intentionally failed to show up for several meetings which Moore arranged. Under mounting pressure from Moore, Cimmino finally agreed and did in fact give Weinstein four ounces of flour in exchange for $4400 which he was to split with Moore. Cimmino stated that he was puzzled when Moore and Weinstein came looking for him and that he tried to call Moore to find out what was wrong. When Cimmino finally reached Moore, after Moore and Weinstein had talked to Cardi, Moore gave the phone to Weinstein who threatened to kill Cimmino if he failed to deliver the real heroin. Cimmino testified that he later called Moore and complained to him about Weinstein's threat and that Moore apologized, but said that the phony heroin deal hadn't worked, and that he should produce real heroin. Cimmino admitted that, out of fear for his life and the lives of his family, he had sold heroin to Moore and Weinstein.

I

Cimmino, who was convicted on all seven counts of the indictment, raises two questions in his appeal. The defense of entrapment as a matter of law was urged upon the trial court and is reasserted here. Cimmino also argues that he was sentenced under the wrong statute. Because appellant Cardi raises the same issue, we reserve the sentencing question for discussion at the end of this opinion.

Concerning the entrapment defense, we hold that the trial judge properly submitted the question to the jury. The Supreme Court ruled in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), that where the evidence of entrapment is controverted "the issue of whether a defendant has been entrapped is for the jury as part of its function of determining the guilt or innocence of the accused." Sherman, 356 U.S. at 377, 78 S.Ct. at 823.

Cimmino argues that although the "issue of entrapment is generally a question of fact for the jury," the evidence in this case was of such a nature as to require a court determination that Cimmino was entrapped as a matter of law. Relying on Sherman, where the Supreme Court did find the entrapment as a matter of law existed, Cimmino argues that it was error to give the issue to the jury. We do not agree.

In Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), the Supreme Court drew the crucial distinction in entrapment cases between ensnaring an innocent citizen in a government conceived and instigated plan for the perpetration of an illegal act and "merely affording opportunities and facilities" for the criminally predisposed to act. Sorrells, 287 U.S. at 441, 53 S.Ct. 210. See also United States v. Haden, 397 F.2d 460, 466 (7th Cir.1968). Predisposition is the determinative factor where, as here, it is conceded by the Government that the criminal scheme originated with its agents. As is often the case, proof relative to the predisposition question was contradictory and in the final analysis reduced itself to a question of witness credibility. That in turn must be weighed and resolved by the jury.

Appellant's reliance on Sherman for the proposition that the trial court committed error in not finding entrapment as a matter of law is clearly misplaced. The Court carefully pointed out in Sherman:

In so holding, we are not choosing between conflicting witnesses, nor judging credibility. . . . We

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