United States v. Carminati, 386

• Decision Date: 23 August 1957
• Docket Number: No. 386,Docket 24570.,386
• Citation: 247 F.2d 640
• Parties: UNITED STATES of America, Appellee, v. Anthony CARMINATI, William McKenney, Jr., and Michael Galgano, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

247 F.2d 640 (1957)

UNITED STATES of America, Appellee, v. Anthony CARMINATI, William McKenney, Jr., and Michael Galgano, Appellants.

No. 386, Docket 24570.

United States Court of Appeals Second Circuit.

Argued June 7, 1957.

Decided August 23, 1957.

Writ of Certiorari Denied November 25, 1957.

Paul W. Williams, U. S. Atty., Southern District of New York, New York City (Jerome J. Londin, Robert Kirtland, Asst. U. S. Attys., New York Ciy, of counsel), for appellee.

Jacob W. Friedman, New York City, for appellants Carminati and McKenney.

Curran, Mahoney, Cohn & Stim, New York City (Menahem Stim, Allen S. Stim, Otto F. Fusco, New York City, of counsel), for appellant Galgano.

Before MEDINA, LUMBARD and WATERMAN, Circuit Judges.

Writ of Certiorari Denied November 25, 1957. See 78 S.Ct. 150.

WATERMAN, Circuit Judge.

Appellants were convicted upon an indictment charging them with a conspiracy in violation of 18 U.S.C. § 371 to receive, possess, and sell heroin in violation of the federal narcotics laws. 21 U.S.C.A. §§ 173, 174; 26 U.S.C. §§ 4701, 4703, 4704(a), 4724(c), 4771(a). Each appellant contends that the evidence as to him was insufficient to prove his participation in the conspiracy and each assigns as error certain rulings made by the trial court as to the admissibility of evidence. In addition to these contentions appellants Carminati and McKenney also contend the trial court erred in curtailing the cross-examination of two government witnesses, with respect to certain portions of the instructions to the jury, and in refusing the jury a full transcript of the stenographic minutes of the trial.

A conspiracy to violate the narcotics laws was conclusively proved. Ample evidence was introduced at the trial from which the jury could find the existence of a conspiracy at the center of which were Ralph and Salvatore Russano,¹ who were shown to be middlemen in a system of narcotics distribution involving more than 20 persons. In May 1955 Ralph Russano and one Michael Botto² (named in the indictment as a codefendant and co-conspirator with the Russanos, the appellants, and a number of others) began dealing in heroin together. Shortly thereafter, the appellant McKenney, a cousin of Russano, joined their operation and the profits of the enterprise were then divided among the three of them. Botto later left this partnership and went into business for himself, although he continued to obtain his supply of heroin from Russano. In September or October of 1955, during the course of a discussion in which Botto complained to Russano of the quality of the heroin with which the latter had been supplying him, Russano said that he had a supplier from whom a better quality of heroin might be obtained. In response to an inquiry from Botto, Russano stated that Galgano was the supplier to whom he had referred. Subsequently, in October of 1956, Botto had a discussion with Galgano, whom he had testified to having met twice previously. During the course of this discussion, Galgano admitted supplying Russano with substantial amounts of heroin.³ A month later Galgano was arrested in his home where the arresting officers discovered twelve Bankers Trust Company envelopes of the same type that had elsewhere been taken by government agents from the possession of other members of the conspiracy and that had been shown to have been used by these persons to deliver heroin.

David Oglesby, named in the indictment as a co-conspirator, implicated McKenney. He testified that in August of 1956 he called Ralph Russano to make arrangements for a purchase of heroin on behalf of a government agent. Russano said that he was unable to make the delivery but would send McKenney. Later that day McKenney kept the appointment with Oglesby which had been arranged by Russano.

Botto also implicated McKenney. In addition to his testimony concerning the partnership between Russano, McKenney, and himself during the summer of 1955, Botto testified that on October 18, 1956, McKenney participated in a discussion, which took place in a federal building, in which arrangements were made for the sale of heroin. Later that day Botto and a government agent met McKenney and several others, at which time McKenney told them that he had just refused to make a sale because the purchaser did not have enough money.⁴ This testimony was confirmed by the government agent who was with Botto.

Oglesby was also the government's chief witness against the appellant Carminati. He testified to numerous transactions in which Carminati participated, only several of which need to be related. In the middle of October 1955, at which time Oglesby had made a purchase from the Russanos, Ralph Russano identified Carminati as one of his suppliers. A month later, when Oglesby again contacted Russano about making a purchase, he was told that he would have to wait a while. After a discussion with Carminati, Russano told Oglesby that he was unable to obtain heroin for him at that time. In December of 1955, Russano informed Oglesby that if he wanted heroin he would have to take it "cut." When Oglesby objected, Russano made a telephone call and shortly thereafter Carminati came in. After a short discussion Carminati told Oglesby, "you will have to take seven ounces of cut stuff, which is the best we can do." Oglesby testified that he again had contact with Carminati in January of 1956 when he approached Russano about making a sale to him on consignment. Russano called Carminati, and after the latter advised him not to enter into the transaction, Russano told Oglesby, "I am sorry. Nothing can be done. I can't do anything." In addition, Oglesby testified to several other transactions in which Carminati was involved, and a government agent gave other evidence tending to prove Carminati's participation in the conspiracy.

This evidence adduced against each appellant, if competent as to him, was clearly sufficient to enable the jury to find that each of the appellants participated in the conspiracy charged by the Government in the indictment. Both Carminati and McKenney were shown to have participated actively in transactions between Russano and his customers. In addition, there was ample evidence from which the jury could believe that Carminati and Galgano each supplied heroin to the Russanos on more than one occasion. The circumstances, therefore, are unlike those in United States v. Reina, 2 Cir., 1957, 242 F.2d 302, where evidence of a single sale by one Valachi was held insufficient to justify an inference that Valachi knew the sale was in execution of the larger venture which made up the conspiracy. Cf. United States v. Ah Kee Eng, 2 Cir., 1957, 241 F.2d 157. In the present case, the evidence established that Carminati knew the Russanos intended to resell the heroin. There was other evidence, consisting of Galgano's admission to Botto that he supplied substantial quantities of heroin to Russano, which justified an inference that Galgano also knew that Russano intended to resell the heroin which he obtained from Galgano.⁵

In United States v. Tramaglino, 2 Cir., 1952, 197 F.2d 928, 930, a similar case, we stated:

"Here then we have evidence of several sales, at different periods, by Rosario and Tramaglino, of marihuana to the same group of buyers with knowledge on the part of the two suppliers that several conspirators were involved in the purchases and that the purchases were for resale. This was enough, we think, to show that each appellant, as supplier, participated in, and acted to further the ends of, the conspiracy. It did not matter that neither had dealings with one another; each performed the same role at successive stages for the same ends. The overall conspiracy was the plan conceived by the intermediary group * * * to buy and resell marihuana at a profit. Both Rosario and Tramaglino knew and participated in this plan by furnishing the essential ingredient — the marihuana. In United States v. Bruno, 2 Cir., 105 F.2d 921, 922, a case quite similar to this one, we said, in confirming a conviction of smugglers, middlemen, and retailers, for a single conspiracy to import and distribute narcotics illegally: `* * * the smugglers knew that the middlemen must sell to the 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 the part with which he was immediately concerned, was dependent upon the success of the whole.\'"

Since the evidence we have reviewed is sufficient to sustain the jury's verdict, we turn to the several contentions of the appellants that portions of that evidence were improperly admitted and that other errors occurred during the course of the trial.

The statement made by Galgano to Botto in October 1956, that he had supplied Ralph Russano with heroin, was admitted only against Galgano; and was properly so received as an admission by Galgano of his role in the conspiracy. 4 Wigmore on Evidence § 1048 (3d Ed. 1940). Galgano, however, contends that the admission was not corroborated as required by Opper v. United States, 1954, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101. We think that, with respect to Galgano, Russano's disclosure to Botto that Galgano was his supplier (provided this conversation is admissible), together with the Bankers Trust Company envelopes found in Galgano's possession, constitute sufficient independent evidence of...