United States v. Dichiarinte, 15549

• Decision Date: 07 November 1967
• Docket Number: No. 15549,15550.,15549
• Citation: 385 F.2d 333
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony J. DICHIARINTE and Spartico Mastro, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

385 F.2d 333 (1967)

UNITED STATES of America, Plaintiff-Appellee, v. Anthony J. DICHIARINTE and Spartico Mastro, Defendants-Appellants.

Nos. 15549, 15550.

United States Court of Appeals Seventh Circuit.

October 2, 1967.

Rehearing Denied November 7, 1967.

Raymond J. Smith, R. Eugene Pincham, Chicago, Ill., for appellants.

Edward V. Hanrahan, U. S. Atty., Gerald M. Werksman, Chicago, Ill., for appellee, John Peter Lulinski, Asst. U. S. Atty., of counsel.

Before SCHNACKENBERG, SWYGERT and FAIRCHILD, Circuit Judges.

Rehearing Denied in No. 15550 November 7, 1967.

FAIRCHILD, Circuit Judge.

On October 7, 1965, Anthony J. Dichiarinte and Spartico Mastro were convicted by a jury of narcotics offenses occurring August 8, 1959. The indictment charged (1) that they received, concealed and facilitated the transportation and concealment of unlawfully imported heroin (21 U.S.C., sec. 174) and (2) that they sold the same to Salvatore Pisano (since deceased) without an appropriate written order (26 U.S.C., sec. 4705(a)). A third count, charging that they conspired with Pisano to violate 21 U.S.C., sec. 174, was dismissed at the trial.

The "action" occurred in and near a fruit stand, operated by Pisano, on the northwest corner of Pulaski Road and 47th street, in Chicago. According to government testimony, at about 10:50 p. m. a black 1957 Oldsmobile, occupied only by the driver, moved east on 46th to Pulaski, stopped for the stop sign, moved south on Pulaski to 47th. The driver handed a package through the right hand window to a man wearing a yellow shirt. The man handed the package to Pisano in the 47th street doorway of the fruit stand; Pisano carried it inside and handed it to Wesley Lewis, a government informant, who handed money to Pisano. Informant Lewis (also deceased at the time of trial) left the Pulaski Road entrance of the fruit stand with Arthur Lewis, a government agent. The package was later found to contain about half a pound of heroin. There was evidence that informant Lewis paid Pisano $6,000 in government funds, $3,000 at the time of delivery, just described, and $1,500 in each of two later instalments.

The degree of illumination in the area was not established except as it may be inferred from the agents' accounts of what they saw, the fact that the fruit stand was open for business, and that a filling station occupied the northeast corner of the intersection.

Although we do not have the benefit of informant Lewis' testimony, it is clearly to be inferred from the record that arrangements had been made with Pisano for a purchase, and that several agents were in the area, anticipating it. The man in the yellow shirt was seen in the area from time to time, beginning about 6:15 p. m.

Agents testified at the trial that Dichiarinte was the driver of the Oldsmobile and Mastro was the man in the yellow shirt. Mastro testified that he was not present, and produced character witnesses, and testimony of his wife and daughter tending to show that he must have been at home or with them in the late afternoon and the evening. He produced evidence that he had been at work that afternoon and had been in his employer's office from 4:00 to 4:30. Several of Dichiarinte's relatives testified that he had been present all evening at a family gathering. This was a celebration of his father's release from a hospital, and the hospital records verified the release on that day.

Sufficiency of the evidence.

Defendants (more particularly Dichiarinte) challenge the sufficiency of the identification testimony to establish guilt beyond a reasonable doubt. This testimony is outlined as follows:

As to Dichiarinte. Agents Schnettler and Morris were in a car parked on the south side of 46th street facing east and close to Pulaski. The 1957 Oldsmobile stopped near them, and the driver turned toward and took a good look at the agents. Both agents identified Dichiarinte at the trial as the driver.

Agent Waltz was in a car parked on the west side of Pulaski between 46th and 47th, facing south. He received a radio communication from Schnettler, looked toward the side and rear as the Oldsmobile approached and passed, and looked closely at the driver. He testified that Dichiarinte was the driver. He followed the Oldsmobile south on Pulaski, stopped at that corner because the light had changed, but looked to the west and saw the delivery of the package.

Agent Lewis was standing on the east curb of Pulaski and saw the Oldsmobile moving south. The driver looked at him. At the trial, he identified Dichiarinte as the driver. After seeing the Oldsmobile, he crossed the street to the Pulaski entrance of the fruit stand and met informant Lewis as he left with the heroin.

None of the agents had seen Dichiarinte before. Later that night, they looked at photographs at the Bureau of Narcotics. All except Morris testified they then recognized a photograph of Dichiarinte.

As to Mastro. Agent Lewis testified that as he crossed Pulaski toward the fruit stand he saw the man in the yellow shirt walking toward the south end of the fruit stand, with Pisano behind him. He was not asked whether he could identify him.

Agent Demarest had been present for several hours, but left the area before the time the Oldsmobile arrived. He was in the rear portion of a panel truck parked on the east side of Pulaski between 46th and 47th. He had binoculars and the truck was equipped with vents through which he could see.

For about two hours before 9 p. m. he saw a man he later learned was Mastro and another man walking back and forth on 47th street and on Pulaski Road near the fruit market. Mastro was wearing a yellow long-sleeved sport shirt. About 9:12 he saw Mastro walking south on Pulaski toward the fruit stand, carrying a brown package which he gave to Pisano. Mastro then left the area, walking west on 47th. Later Demarest drove away. He returned, after receiving a radio communication, but at about 11:10.

Demarest had not seen Mastro before. He saw him again September 23 at the Eatabite restaurant and learned his name shortly thereafter.

Agent Waltz had arrived about 5 p. m. and parked about a half block from 47th and Pulaski. He saw the man wearing the yellow shirt, whom he identified as Mastro, and the other man, walking about as described by Demarest. He testified that it was Mastro who later received the package of heroin from Dichiarinte, walked a few steps and handed it to Pisano. He saw Mastro again on September 16 and 22 at the Eatabite restaurant, with Dichiarinte.

It is true that the delivery of the heroin took place at night, that Dichiarinte was in a car, that each agent had only a brief look at his face. The four agents had been together when his picture was selected, and it is humanly possible each was originally uncertain but became certain by a process of agreement. There was no proof that a black Oldsmobile was available to Dichiarinte that night, and the license number was not observed. The agents who identified Mastro saw him from a considerable distance, apparently did not establish his identity for 6 weeks, and conceivably were influenced then by seeing him as a companion of Dichiarinte. All these factors went to the credibility and weight of the agents' testimony, but they did not render it inherently incredible or incapable of convincing beyond a reasonable doubt.

The evidence was sufficient to sustain conviction, although the possibility of mistake counsels specially careful analysis of the fairness of the trial.

One or both defendants assert several grounds for outright dismissal or a new trial. We discuss each as follows:

Claim of double jeopardy.

Defendants and Pisano were originally indicted March 9, 1960. Count I, later dismissed, charged unlawful sale by all three to informant Lewis and agent Lewis. Count II charged unlawful concealment, as now charged in Count I. Pisano died in 1962. Informant Lewis died and Count I was dismissed on government motion.

On April 1 and 2, 1963, the parties began to select a jury to try Count II before Judge Parsons. After eight jurors had been selected, it developed that the then government counsel had inquired at the county office where the father of one juror was employed concerning the father's political sponsorship. Judge Parsons evidently concluded that this inquiry created some danger of prejudice, and excused this juror and the other members of that four-juror panel. Later it developed that there were not enough additional veniremen available to fill up the jury and afford each side the appropriate numbers of peremptory challenges. Judge Parsons stated: "It is not a mistrial. There has been no jury selected. It is just that I am declaring the entire venire disqualified and setting the matter over for a new venire."

It is clear that the jury was not sworn. Jeopardy had not attached¹ and it is unnecessary to consider the merits of Judge Parsons' solution to the problem which had arisen.

Alleged denial of speedy trial. The proceedings in this case can scarcely be termed speedy.

The offense occurred August 8, 1959, and defendants were first indicted and arrested in March, 1960. The abortive jury selection took place in April, 1963, and on April 13, 1964, then government counsel moved for dismissal and told Judge Parsons the case had recently been assigned to himself and an associate, they had re-examined it, did "not think that there is a case here," and received permission from the department to dismiss. The motion was granted.

The present indictment was returned August 6, 1964. Defendants appeared at first by their original counsel, but a substitution became necessary. It should be noted, also, that government counsel changed from time to time.

Defendants did not ask for a prompt trial of either indictment, they did not object to continuances, and some of the continuances were granted at their request. Defendants made motions after the return of the second indictment which...