United States v. Cole

• Decision Date: 19 September 1966
• Docket Number: 14737 and 14861.,14722,14723,No. 14714,14714
• Citation: 365 F.2d 57
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Opal COLE et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

365 F.2d 57 (1966)

UNITED STATES of America, Plaintiff-Appellee, v. Opal COLE et al., Defendants-Appellants.

Nos. 14714, 14722, 14723, 14737 and 14861.

United States Court of Appeals Seventh Circuit.

August 10, 1966.

Rehearing Denied September 7, 1966, and September 15, 1966.

Rehearing Denied September 19, 1966.

Charles A. Bellows, Doris A. Coonrod, Jason E. Bellows, Sherman C. Magidson, Chicago, Ill., for defendant-appellant, Michael De Maro.

R. Eugene Pincham, William R. Ming, Jr., Charles B. Evins, Earl E. Strayhorn, Chicago, Ill., for defendants-appellants Americo De Pietto, Charles Cole and Jesse Cowan.

Edward V. Hanrahan, U. S. Atty., John Peter Lulinski, John Powers Crowley, Robert S. Bailey, Richard J. Phelan, Gerald M. Werksman, Asst. U. S. Attys., Chicago, Ill., for appellee, Lawrence Jay Weiner, Asst. U. S. Atty., of counsel.

Richard F. LeFevour, Oak Park, Ill., for defendants-appellants Cameron, Spencer and Isaacson.

Before SCHNACKENBERG, KNOCH and KILEY, Circuit Judges.

Rehearing Denied in No. 14714, September 7, 1966, and September 15, 1966.

Rehearing Denied in Nos. 14722, 14723 and 14861 September 19, 1966.

SCHNACKENBERG, Circuit Judge.

Opal Cole and several other defendants¹ have appealed from a judgment of conviction entered by the district court on the verdict of a jury, after a trial on a 40-count indictment which named them and other persons as co-conspirators.

The theory of the government has been that the numerous defendants named were members of a conspiracy trafficking in narcotics, and that the conspiracy operated on three levels — suppliers, distributors and salesmen.

From our analysis of the voluminous trial record, we have come to the conclusion that there was evidence introduced which supports the theory of the government that defendants Di Pietto, De Maro, Ted De Rose, Battiato and Passini were suppliers of heroin who made available to defendants named as distributors large amounts of that drug. The suppliers allocated territories, consigned quantities of the drug, packaged wholesale amounts, and collected money from the distributors. The evidence tended to show that on the south side of Chicago defendants Opal and Charles Cole, together with Nolan Mack (who met death four days prior to the return of the indictment), were distributors.² Defendant LaFauncie Johnson was a seller and messenger for the Coles.

On December 12, 1961, about 11 P.M. Opal Cole was arrested by agent Hughes, who took her to her apartment, using her key for entrance. Finding Johnson in the living room, he arrested him. Incidental to the arrest of Johnson, a search was made and Opal Cole's notebooks were seized. Because of entries therein, they were clearly admissible as instrumentalities used in the crime charged in the indictment.

On October 25, 1963, De Maro and Battiato had a talk on a street corner at about 7:30 P.M. and an hour later, Mack picked up Battiato at the corner and drove to a building at 533 Belden, where Battiato lived and which he entered, returning a minute later to the car. He then gave Mack a package and Battiato went into his apartment and counted several bundles of money.

Mack met his death in an automobile on the same evening (October 25, 1963), as he was pursued by federal narcotics agents on a main highway through Chicago. During the chase he was shot by his pursuers and heroin was then found in his car. These circumstances were relevant to explain the condition of the heroin and the absence of the container in which Mack originally received the heroin.

1. Counsel for defendant De Maro, following the examination of Beulah Greenlaw, a government witness, requested the trial court to examine her testimony before the grand jury to determine whether the grand jury's minutes of that testimony should be turned over to counsel for use on cross-examination. The court examined the minutes and refused to turn them over to De Maro's counsel.

Defense counsel stated to the court that he believed that he was entitled to any minutes or notes taken during the course of the hearing of testimony before the grand jury, adding:

"Judge, I think there will be conflicting testimony between anything which she stated before the Grand Jury and she has presently told this Court and Jury."

Government counsel admitted that the witness had testified before the grand jury. Defense counsel stated:

"There is no way I can tell if there is any inconsistency between the Grand Jury testimony of the witness and that which she might have testified to here."

Government counsel handed the grand jury minutes to the court, which examined them but refused to turn them over to defense counsel.

We cannot say that defense counsel laid a basis for the inspection of the grand jury proceedings by the trial court. The most that can be said is that the record reveals a hope by the defense attorney that something in the testimony of witness Greenlaw before the grand jury was inconsistent with her testimony upon the trial. This is not sufficient to cause us to override the position taken by the district court here.

In Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, at 398, 79 S.Ct. 1237, at 1240, 3 L.Ed.2d 1323 (1959), the court said:

"Petitioners concede, as they must, that any disclosure of grand jury minutes is covered by Fed.Rules Crim. Proc. 6(e) promulgated by this Court in 1946 after the approval of Congress. In fact, the federal trial courts as well as the Courts of Appeals have been nearly unanimous in regarding disclosure as committed to the discretion of the trial judge. Our cases announce the same principle, and Rule 6(e) is but declaratory of it. As recently as last Term we characterized cases where grand jury minutes are used `to impeach a witness, to refresh his recollection to test his credibility and the like\' as instances of `particularized need where the secrecy of the proceedings is lifted discretely and limitedly.\' United States v. Procter & Gamble, 356 U.S. 677, 683 78 S.Ct. 983, 987, 2 L.Ed.2d 1077 (1958).

"Petitioners argue, however, that the trial judge\'s discretion under Rule 6(e) must be exercised in accordance with the rationale of Jencks; namely, upon a showing on cross-examination that a trial witness testified before the grand jury — and nothing more — the defense has a `right\' to the delivery to it of the witness\' grand jury testimony.

"This conclusion, however, runs counter to `a long-established policy\' of secrecy, United States v. Procter & Gamble, supra, at 681 78 S.Ct. 983 older than our Nation itself. * * *"

2. Eighteen defendants went on trial. The indictment named twenty-two defendants and thirty-five unindicted co-conspirators.³ The structure of the conspiracy and connection of the defendants therewith are shown largely by the testimony of four government witnesses, Barbara Mitchell, Houston Garner, James Faris and Charles Sparkman.

The evidence showed that Mitchell bought heroin from the Coles, Di Pietto and De Maro at a meeting where the distribution of narcotics and Mack's participation were discussed, and also that Passini received $5,000 from Opal Cole in payment for narcotics.

According to his testimony, Garner bought heroin from Opal Cole which was delivered to Garner by LaFauncie Johnson. He also saw De Maro with Opal during negotiations for the purchase by Garner of a wholesale quantity of heroin.

Faris said he purchased heroin from Cowan. In fact he went with Cowan to a meeting attended by Carrioscia where distribution of narcotics was discussed.

Sparkman testified he bought heroin from Carrioscia.

The Coles, Carrioscia and Cowan were distributors from whom the four government witnesses testified they bought heroin. Mack was also a distributor. These persons all obtained heroin from Di Pietto's group which included De Maro, De Rose, Passini and Battiato.

We need not encumber this opinion with the details marking the day by day transactions beginning in the spring of 1961 in which these four government witnesses, according to their own testimony, and as corroborated by other facts and circumstances in evidence, became associated with other conspirators in carrying out the extensive trafficking in narcotics shown by the record before us.

We can sum it up in the words of government counsel who have said in their brief:

"In the instant case, the object of every conspirator was to sell the narcotics made available by the suppliers to the distributors so that the operation could continue. Just as the quality of the heroin was diluted by each on the way down, so the profits were skimmed by each on the way up."

Even though the contacts between the different conspirators as among themselves varied from day to day, if they were shown by the evidence to the satisfaction of the jury to have been engaged in a common plan to violate the narcotics acts, the evidence in the case at bar is sufficient to support a conviction on the indictment upon which defendants were tried. As was said in Poliafico v. United States, 6 Cir., 237 F.2d 97, 103 (1956), cert. denied 352 U.S. 1025, 77 S.Ct. 590, 1 L.Ed. 2d 597.

"* * * The fact that one such supplier did not have dealings with another supplier does not matter. If each performs the same role at successive stages for the same ends, and both know and participate in the plan of the others to buy and sell heroin at a profit, each is guilty as a conspirator. United States v. Tramaglino, 2 Cir., 197 F.2d 928. * * *"

Moreover, there having been competent proof of a conspiracy to violate the narcotics acts, none of the conspirators is in a position to object to the introduction into evidence of the acts of the co-conspirators, even though they were not all present on each occasion. Thus in United States v. Iacullo, 226 F.2d 788, 793 (7 Cir. 1955), cert. denied 350 U.S. 966, 76 S.Ct. 435, 100 L.Ed. 839, we said:

"As to the conspiracy count, proof of the September 18, 1853 offense was admissible as corroborative of

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