United States v. Gernie

• Decision Date: 13 February 1958
• Docket Number: No. 173,Docket 24634.,173
• Citation: 252 F.2d 664
• Parties: UNITED STATES of America, Appellee, v. Joseph GERNIE and Edward Ogull, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

252 F.2d 664 (1958)

UNITED STATES of America, Appellee, v. Joseph GERNIE and Edward Ogull, Defendants-Appellants.

No. 173, Docket 24634.

United States Court of Appeals Second Circuit.

Argued November 18, 1957.

Decided February 13, 1958.

Writ of Certiorari Denied May 26, 1958.

Jacob W. Friedman, New York City, for defendants-appellants.

Jerome J. Londin and Robert B. Fiske, Jr., Asst. U. S. Attys., Southern District of New York, New York City (Paul W. Williams, U. S. Atty., Southern District of New York, New York City, on the brief), for appellee.

Before HAND, MEDINA and LUMBARD, Circuit Judges.

Writ of Certiorari Denied May 26, 1958. See 78 S.Ct. 1006.

LUMBARD, Circuit Judge.

The four principal questions on appeal are (1) whether there was sufficient evidence to support Joseph Gernie's conviction, (2) whether the court erred in denying defense motion to dismiss the indictment against Ogull because of entrapment, (3) whether the court erroneously restricted cross-examination of narcotic agent Wurms regarding the whereabouts of the government's former special employee, Max Berner, who was not produced as a witness, and (4) whether it was error to call Benjamin Harell to testify in view of his claim of Fifth Amendment privilege.

Gernie and Ogull were charged, with Philip Buzzeo and Michael Mayer, with conspiracy to violate the narcotic laws during the period April 1, 1956-October 19, 1956 (Count 7). They were also charged with the sale of heroin: Ogull and Buzzeo on April 14, 1956 (Count 1), all four defendants on June 4, 1956 (Count 2), Gernie, Ogull and Buzzeo on July 12, 1956 (Count 3), Gernie and Mayer on August 2, 1956 (Count 4), and Gernie and Mayer on August 6, 1956 (Count 5). In addition, Gernie and Mayer were charged with possession of heroin on September 18, 1956 (Count 6), 21 U.S.C.A. §§ 173, 174; 18 U.S.C.A. § 371.

Buzzeo and Mayer pleaded guilty to all the charges against them and were sentenced respectively to 5 years in prison and a fine of $5,000, and 5 years, 6 months in prison.

At the end of a six day trial the jury found Gernie and Ogull guilty as charged on all counts, except Count 4 which had been withdrawn by the government at the end of its case.

On February 19, 1957, Judge Palmieri sentenced Gernie¹ to 10 years imprisonment and fined him $5,000, and Ogull to 5 years imprisonment on Counts 1, 2, 3 and 7, to be served concurrently.

A narrative of the evidence concerning the clandestine operations of the four defendants over a period of several months discloses an abundance of evidence both direct and circumstantial to support the jury's verdict of guilty.

On April 13, 1956 government agents first made contact with the defendants when special employee Max Berner introduced agent Wurms to Edward Ogull in King's Diner at 360 Twelfth Avenue, New York. Ogull summoned Buzzeo by telephone. Finally Wurms, Buzzeo and Berner talked in a parked automobile and Wurms arranged to buy a quarter kilogram of 85% pure heroin from Buzzeo that night for $2,750. The delivery did not take place that night as scheduled as Buzzeo was cautious, and, after visiting several places with Wurms, he told Wurms that his people were satisfied and he would have to return the following evening to the Ship Ahoy Restaurant at 101 West 66th Street. On April 14 they went to a bar at 200 West 70th Street and from there to a Cadillac parked at 72nd Street and Riverside Drive. While they were driving east in the Cadillac Buzzeo handed Wurms a paper bag containing the heroin and Wurms paid him $2,750. As Wurms got out Buzzeo said if he wanted some more heroin he should contact Eddie, meaning Ogull.

Wurms, with Max Berner, again met Ogull on April 20 at McGinnis' Bar, 304 West 40th Street, and when Wurms complained of the "merry-go-round" he had gone on for the heroin, Ogull said he would not be put to such trouble in the future.

A week later, on April 27, Wurms and Berner went to the Scarlet Patch Bar, 403 East 57th Street and Wurms talked privately with Ogull who wanted to sell him cocaine. According to the government's case, Berner had no contacts with the defendants after April 27.

Wurms next telephoned Ogull on May 3 at Pier 74 at a number given him by Max Berner and Wurms and Ogull met later at the Scarlet Patch. Subsequent calls by Wurms on May 7, 10 and 11 were unproductive as Ogull said he was unable to reach "Bob," referring to Buzzeo. At another meeting at the Scarlet Patch on May 22 Ogull rebuffed Wurms' suggestion that he be introduced to a new source of supply.

After a telephone call and meeting with Ogull, on June 1, Wurms met Buzzeo at the Ship Ahoy at 5:00 P.M. on June 2 where arrangements were made to deliver a quarter kilogram at the same place at 9:30 P.M. two days later.

On June 4, after a short talk at the Ship Ahoy, Wurms and Buzzeo drove in Buzzeo's Chevrolet to 76th Street where they parked near the Devonshire Garage just east of Broadway at 9:55 P.M. Wurms gave Buzzeo $3,000 in cash. Buzzeo left the car and entered the nearby Lighthouse Cafe where he made a telephone call. Five minutes later the defendant Gernie entered the cafe and joined Buzzeo at the bar. After a brief conversation, Gernie made a telephone call. Then both men went to the basement and returned to the bar a few minutes later. Gernie then went to the front window and looked out for about five minutes. At about 10:05 P.M. defendant Michael Mayer drove by in a 1955 Oldsmobile automobile usually driven by Gernie. Mayer proceeded to the Devonshire Garage where he parked and entered the garage office. When Mayer drove by the Lighthouse Cafe, Gernie turned abruptly, returned to Buzzeo at the bar and proceeded to the garage office where he met Mayer. Mayer then drove away in the Oldsmobile and Gernie returned to Buzzeo. They then left the cafe and proceeded to the garage office. Buzzeo remained in the office only a moment. Gernie watched him carefully as he returned to the car where Wurms was waiting. Wurms and Buzzeo drove off in Buzzeo's Chevrolet and, en route, Buzzeo handed Wurms a package containing the heroin.

Wurms next met with Ogull and Buzzeo on June 12 at Charlie's Diner, 394 Twelfth Avenue, where they discussed Wurms' complaint about the quality of the heroin purchased on June 4 and a reduction in price for the next purchase.

A July 11 meeting of Wurms and Buzzeo, arranged by Ogull, led to the sale of another quarter kilogram for $2,800 on July 12. Wurms and Buzzeo met at the Dolphin Cafe, 1975 Broadway at 9:30 P.M. and drove in Buzzeo's Chevrolet to the Devonshire Garage where they parked east of the office. Wurms gave Buzzeo $2,800 in bills the serial numbers of which he had recorded. A few minutes later Gernie drove into the garage entrance in the 1955 Oldsmobile. Gernie parked the car in the garage, met Buzzeo at the side door of the Lighthouse Cafe on 76th Street, they shook hands and went in and when they came out a few minutes later, Gernie was walking behind Buzzeo. They both went into the garage and Buzzeo got into Gernie's Oldsmobile, sat on the front seat for a moment with his feet remaining on the pavement, got out and spoke to Gernie, and then rejoined Wurms in the Chevrolet. Buzzeo then took a package from under his sport shirt and gave it to Wurms who later found that it contained heroin. When Gernie was arrested 68 days later on September 18, he had in his wallet one of the $100 bills which Wurms had given to Buzzeo on July 12.

Subsequent events in August further evidenced the business relationship of defendants Gernie and Mayer and the stealthy nature of their operations.

On August 2, 1956, two men, one of whom was Benjamin Harell, met Mayer at the West End Garage. Mayer immediately drove off in his Pontiac and went into 307 West 69th Street, where he lived. Gernie had already entered the building and his Oldsmobile was parked in the block at the time. Gernie came out of the building with Mayer and when Mayer drove off to a meeting with Harell, Gernie reentered 307 West 69th Street.

On August 6, 1956 Gernie drove up to 67th Street and Columbus Avenue, where he parked. Gernie walked over to Mayer's Pontiac and threw a dark package into it. He then entered the 67th Street Garage, where he met Mayer. Mayer immediately left the 67th Street Garage and drove off in the Pontiac to 307 West 69th Street which he entered. Gernie was joined in the 67th Street Garage by Harell, who, after a brief conversation, drove away. Narcotic agents arrested Harell at 102nd Street and the East River Drive and found over 2 ounces of heroin.

Mayer was arrested on September 18, 1956 in 307 West 69th Street. In his pocket the agents found two double glassine envelopes containing about 1½ ounces of heroin. In Mayer's apartment the agents found 56 ounces of heroin in a leatherette case, several brown paper bags, and under his daughter's bed a Speed stapling machine and miscellaneous assorted equipment for the weighing, cutting and packaging of narcotics. There was expert testimony to show that the Speed stapling machine found in Mayer's apartment was the machine which pressed the staples to seal: (1) the quarter kilogram of heroin purchased on July 12, 1956 by Wurms, when Buzzeo got it from Gernie's Oldsmobile, and (2) the 2 ounces of heroin seized from Harell on August 6, 1956 after his meeting with Gernie.

Gernie was also arrested on September 18 and, in addition to the $100 bill already mentioned, he had in his possession the registration to the Oldsmobile car, although he denied having anything to do with the car or that he drove a car. Ogull, when he was arrested on October 4, denied that he had ever seen agent Wurms.

The mere recital of the evidence answers Gernie's claim that the evidence against him was insufficient. It was quite ample to sustain his conviction.²

The second claim of error involves Ogull's defense of entrapment. Ogull took the stand and claimed that Max Berner and agent Wurms had entrapped...