United States v. Coduto

Decision Date18 January 1961
Docket NumberNo. 12847.,12847.
Citation284 F.2d 464
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Fred CODUTO, Howard Frye and Coyit Baker, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Charles A. Bellows, Jason Ernest Bellows, Chicago, Ill., (Sherman C. Magidson, Chicago, Ill., of counsel), for Fred Coduto. John J. Cogan, Chicago, Ill., for appellants, Howard Frye and Coyit Baker.

Robert Tieken, U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., for appellee.

Before HASTINGS, Chief Judge, and KNOCH and CASTLE, Circuit Judges.

Rehearing Denied, En Banc, January 17, 1961.

Rehearing Denied, Panel, January 18, 1961.

CASTLE, Circuit Judge.

The defendants Fred Coduto, Howard Frye and Coyit Baker were indicted in a nine count indictment. The indictment charged violations of Section 4705(a), Title 26 and Section 174, Title 21 U.S. C.A. Five of the counts were applicable to Coduto and charged him with unlawful sale of narcotic drugs, unlawful receipt, concealment, and facilitation of the transportation and concealment of narcotic drugs, and with conspiracy to violate the narcotic drug laws. The indictment embraced four alleged sales of heroin. Coduto was charged with two of the sales. Frye and Baker were charged with all four sales and named in all nine counts. Each of the defendants was found guilty by a jury of all counts applicable to him. Coduto was sentenced to a period of twenty years on each count; the sentence on count 7 to be consecutive to that on count 5. Frye and Baker were sentenced for a period of twenty years on each count, to run concurrently. All defendants appealed.

Coduto contends that the District Court erred in denying his motions for judgment of acquittal because of insufficiency of identification, in overruling objections to cross-examination of defendant concerning his financial affairs, in demonstrating antagonism toward defendant which prejudiced him with the jury, in failing to conduct a hearing to determine whether certain newspaper items had prejudiced jurors, in failing to give requested instructions, in denying a motion for inspection of grand jury minutes of an informer's testimony, and that the sentence imposed is cruel, unusual, harsh and excessive. Frye and Baker contend that the District Court erred in denying their motions for acquittal because of the unreliability of the informer's testimony, in refusing to give a requested instruction on informer's testimony, overruling objections to the cross-examination of Baker as to the drug addiction and prison record of an acquaintance, in failing to conduct an examination into the question of juror prejudice resulting from certain newspaper articles, and in denying inspection of the grand jury minutes of the informer's testimony. Baker contends, in addition, that the court erred in denying his motion to suppress evidence taken from him.

The main contested issues are:

1. Does the evidence viewed in a light most favorable to the Government support the verdict below?

2. Was the cross-examination of the defendants Coduto and Baker proper and not prejudicial?

3. Did the newspaper articles complained of require allowance of the motion for mistrial?

4. Can allegedly prejudicial newspaper accounts not theretofore called to the attention of the court be raised for the first time by motion for a new trial?

5. Did the court properly deny the application for inspection of the grand jury minutes?

6. Were the statements and conduct of the court below prejudicial?

7. Was the sentence imposed upon defendant Coduto cruel and unusual?

8. Did probable cause and reasonable ground exist under the Fourth Amendment and under 26 U.S.C. § 7607 for the arrest and incidental search of the defendant Baker?

Frye and Baker attack the sufficiency of the evidence to sustain their convictions on the ground of lack of credibility of the informer witness, an exconvict and admitted seller of narcotics over a fifteen year period, who, at the time of the events he testified to, was charged with the violation of State narcotic laws. Coduto, in addition, attacks the sufficiency of the informer's testimony identifying him as the person who delivered a package, later ascertained to contain heroin, to the informer on the night of August 18, 1958 while seated in a parked car and to whom the informer, McNeal, handed the money in payment; and who, McNeal testified, on the following night picked up Frye in a car which stopped at a street intersection within the view of McNeal who was seated three or four feet from the window of a bar located on the corner. McNeal also testified that Coduto was the person who, about 12:30 A.M. on August 20, 1958, delivered narcotics to Baker from a parked car about thirty yards from where McNeal was seated in a car in which Baker had driven him to the location.

In our review of defendants' convictions we must view the evidence in a light most favorable to the government on the issue as to whether the case was properly submitted to the jury. United States v. Pinna, 7 Cir., 229 F.2d 216. This is not a case where the informer's testimony is without corroboration. The situation here is unlike that in Panci v. United States, 5 Cir., 256 F.2d 308, relied upon by defendants, and the credibility of the informer witness was a matter for the jury and is not here open for our consideration. United States v. Taylor, 7 Cir., 266 F.2d 310. In United States v. Anderson, 7 Cir., 101 F.2d 325, 331 we said:

"* * * Much is said by appellants about incredible witnesses and untrustworthy evidence, but counsel must know that with these questions we are not permitted to concern ourselves."

The identification of Coduto was corroborated by the testimony of investigator, Turnbou, who identified Coduto as the person who picked up Frye on the night of August 19th at the intersection. The record further discloses that the money furnished the informer to pay for the narcotics purchased was dusted with a fluorescent powder and the serial numbers of the bills recorded. Other witnesses who examined each of the defendants after their arrest under ultraviolet light testified to the presence of luminescence from fluorescent material on the fingers and knuckles and over the front of Frye's shirt and on the cuticles of the fingers and on the outer right palm of Baker's hand and that fluorescent material was present in Coduto's ears, on his legs and underclothing, and in his wallet. Two fifty-dollar bills found in Baker's wallet matched the serial numbers of the money given to McNeal.

We believe it would serve no useful purpose to attempt to set forth or summarize the testimony of the various witnesses concerning the meetings between McNeal and Frye and Baker, the contacts with Coduto, the transaction of each of the four sales alleged and the surveillance of the informer and his movements by the investigators. We have carefully reviewed the record and find that there was more than ample evidence to substantiate the verdict of the jury. No question exists as to the identification of Frye and Baker and what we have said above adequately disposes of the issue of credibility and of the issue of identification as to Coduto.

The record establishes that Coduto was the head man of the operation and that in the short period involved, August 9 to 19, 1958, the volume of trafficking in narcotics with one customer, McNeal, involved the sum of $4700.00. Coduto testified that he was a loader on a city garbage truck. In our opinion a foundation existed for examination as to the financial affairs of Coduto and that the District Court properly exercised its discretion in affording wide latitude in cross-examination on the subject to probe the credibility of the witness. United States v. Lawinski, 7 Cir., 195 F.2d 1, 7. Defendant's reliance on Williams v. United States, 168 U.S. 382, 18 S.Ct. 92, 42 L.Ed. 509, is misplaced. United States v. Jackskion, 2 Cir., 102 F.2d 683, 684, 123 A.L.R. 116, certiorari...

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