United States v. Cerrito

• Decision Date: 10 September 1969
• Docket Number: No. 17148.,17148.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert CERRITO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

413 F.2d 1270 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Robert CERRITO, Defendant-Appellant.

No. 17148.

United States Court of Appeals Seventh Circuit.

July 25, 1969.

As Corrected on Denial of Rehearing September 10, 1969.

Julius Lucius Echeles, Chicago, Ill., for appellant.

Thomas A. Foran, U. S. Atty., Chicago, Ill., John Peter Lulinski, Michael B. Nash, Michael P. Stavelis, Asst. U. S. Attys., of counsel, for appellee.

Before MAJOR, Senior Circuit Judge, and KILEY and SWYGERT, Circuit Judges.

KILEY, Circuit Judge.

Defendant Cerrito appeals from his conviction by the district court, without a jury of conspiring unlawfully¹ to sell amphetamine tablets, with intent to defraud by dispensing counterfeit drugs.² We affirm.

In substance, Cerrito is charged with conspiracy with Baldino, Scala, Fisher and Gertz, in violation of 18 U.S.C. § 371, to possess, sell and deliver amphetamine tablets, offenses under the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 331(q) (2), and (3), with intent to defraud and mislead by dispensing counterfeit tablets held for sale, an offense under 21 U.S.C. § 331(i) (3).

Cerrito contends mainly that there is no evidence sufficient to connect him with the alleged conspiracy; and that Subchapter III, "Prohibited Acts and Penalties of the Food and Drug Act," is unconstitutional under the Tenth Amendment as applied to him because there is no evidence that the acts were done in interstate commerce. We see no merit in either contention.

We turn first to the constitutional contention. Generally speaking the power of Congress to regulate commerce extends to intrastate activities which affect interstate commerce. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964). Specifically, Congress in adopting the parts of the Food and Drug Act before us found that "illicit traffic in depressant and stimulant drugs" affects interstate commerce because of danger to public health and safety on interstate as well as intrastate highways, and because of the necessity for effective regulation of drug traffic due to difficulties in determining place of origin. 21 U.S.C. § 360a.³

The Congressional findings furnish a basis for determining that the challenged statutes are constitutional. Whalen v. United States, 398 F.2d 286 (8th Cir.1968); Deyo v. United States, 396 F.2d 595 (9th Cir.1968); White v. United States, 395 F.2d 5 (1st Cir. 1968); United States v. Freeman, 275 F.Supp. 803 (N.D.Ill.1967). We hold that the statutes are not unconstitutional as applied to Cerrito.

It is Cerrito's contention that the evidence taken favorably to the government shows the conspiracy charged against him and others was completed by January 11, 1967, before he "came into the picture" on January 18, and therefore cannot sustain his conviction.

Count 1 of the indictment charges a conspiracy beginning December 13, 1966, and continuing until the indictment was filed March 30, 1967; and that part of the conspiracy was sales of drugs to LaBree, a government agent, with intent to defraud, on December 15, 1966, January 11 and 18, and February 28, 1967.

LaBree testified to the following events: On December 13, 1966, he discussed with Baldino and Scala the purchase of one million amphetamine tablets for $23,000. On January 11, 1967, he met Baldino and Fisher and purchased 50,000 which Fisher had "on hand" for $1,100. Later, on January 11 and 12 he reported to Baldino the pills were counterfeit. On January 13 he met with agents Doyle and Gallagher, posing as "juice racketeers from Indiana," and Scala, Baldino and Gertz. Prior to this meeting he explained to Baldino that he had borrowed the $1,100 purchase money from the pseudo Indiana racketeers. Baldino — pretending to be a "Spangola" — and Scala promised the agents to return the money, and on the 15th Baldino called LaBree and set up a meeting for the next day. Cerrito was present at the meeting the next day where he was introduced by Baldino as "My man John." Cerrito used the analogy of a sale of shirts with borrowed money to explain LaBree's claimed predicament vis-a-vis the pseudo "juice racketeer." One of the "racketeers" entered and told Baldino he was responsible for the money. "Look," Cerrito replied, "he is no more responsible than I am for that." The next day Fisher gave LaBree the $1,100. On January 18 Baldino called LaBree for the pills and LaBree replied the "racketeer" had taken them. Baldino then said Cerrito was going to kill LaBree. On the 19th Cerrito threatened LaBree's life. Agent Doyle testified that he asked Cerrito what his stake in the transaction was and Cerrito replied that he had as much to say as Baldino and Fisher. Cerrito denied the statements the agents attributed to him and denied treatening LaBree.

We think all of this testimony furnishes a sufficient basis for the finding beyond a reasonable doubt...