United States v. Iacullo

• Citation: 226 F.2d 788
• Decision Date: 25 November 1955
• Docket Number: No. 11496.,11496.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph IACULLO, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

226 F.2d 788 (1955)

UNITED STATES of America, Plaintiff-Appellee, v. Joseph IACULLO, Defendant-Appellant.

No. 11496.

United States Court of Appeals Seventh Circuit.

November 4, 1955.

Rehearing Denied November 25, 1955.

COPYRIGHT MATERIAL OMITTED

Maurice J. Walsh, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., Edward J. Calihan, Jr., John Peter Lulinski, Anna R. Lavin, Asst. U. S. Attys., Chicago, Ill., of counsel, for appellee.

Before DUFFY, Chief Judge, and FINNEGAN and SCHNACKENBERG, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

Defendant Joseph Iacullo has appealed to this court from a judgment based upon a finding of guilty in a case tried without a jury. He was sentenced to 5 years on each count in which he was named in an indictment, to run concurrently, and fined $100.

The indictment also named Anthony Schullo, Anthony Sperna and Anthony Ponzi, as defendants. Iacullo, with Sperna, is charged in counts 7, 8 and 9, with illegal purchase, sale, and receiving, concealing, buying and facilitating the transportation, of narcotics, on July 23, 1953, and, in counts 13, 14 and 15, only Iacullo is charged with similar unlawful acts on December 9, 1953. In count 16, Iacullo, Schullo, Sperna and Ponzi are charged with conspiring with Frank Coduto and Anthony Pape, then deceased, and with unknown persons, to commit offenses against the United States, to wit: unlawful purchase of narcotic drugs, unlawful sale to Harry V. Mattera of quantities of a narcotic drug, and unlawful receipt, concealment, buying and facilitation of transportation and concealment of narcotic drugs, and the commission of the offenses set forth in the first fifteen counts of the indictment, including the six counts naming Iacullo, the conspiracy being alleged to have commenced on or about July 16, 1953, and to have continued to on or about March 16, 1954.

Ponzi was granted a severance, Schullo pleaded guilty as to three counts and was dismissed as to the others in which he is named, and Sperna pleaded guilty to count 9 and was dismissed as to the other counts naming him.

Before us, Iacullo contends that the total evidence does not sustain his conviction, that the district court erred in admitting and considering certain evidence and that mere association is not a basis for conviction.

There is evidence, some of it contradicted and some of it uncontradicted, tending to prove facts which we now set forth chronologically.

Harry V. Mattera, an agent of the Federal Bureau of Narcotics, on July 23, 1953, parked a Cadillac automobile in a parking lot at the southeast corner of Van Buren and Paulina Streets, in Chicago. At about 6:30 p. m. Mattera met Coduto at said street intersection and told him that he desired to purchase two ounces of heroin and that he had $800 which Coduto said was necessary to pay for it. Coduto told Mattera to accompany him to the corner drug store, known as the College Pharmacy, where Coduto said, "I'll have to give the fellows a call." Mattera gave Coduto $800, whereupon Coduto went to the rear of the store and made a telephone call. Coduto thereupon left the store with Mattera. Coduto told Mattera that the delivery would be made about 8:30 p. m. Mattera waited in a tavern until that time and then rejoined Coduto on the street. Coduto said the delivery would be made shortly. A few minutes later he pointed to Mattera's automobile and said, "There they are now." A 1949 Plymouth car was entering the parking lot. It pulled up parallel to the Cadillac. Sperna, the driver, threw a package into or through the Cadillac. Iacullo was seated next to the driver. The Plymouth was driven out of the lot and around the immediate vicinity, and south to Congress Parkway, thence into a dead end street, where Sperna turned the car around and drove again to Van Buren and Paulina Streets and then north. Mattera walked into the parking lot, looked inside the Cadillac, then got out of the car and bent over and picked up a small package which was wrapped in newspaper and had two manila containers inside it containing heroin hydrochloride, a derivative of opium. Neither the containers nor the newspapers contained federal tax stamps and Mattera did not give an order form for the purchase of narcotics.

On August 13, 1953, Mattera told Coduto that he desired to purchase two more ounces of heroin, but Coduto said that the order could not be filled "because the fellows were out of town." Mattera asked what fellows he meant and Coduto said, "The fellows that were in the car the other day, the other time."

On September 18, 1953, about 7:30 p. m., Mattera had another conversation with Coduto in the same drug store¹ and there gave Coduto $800. Mattera went to a restaurant at Ogden Avenue and Madison Street where he saw Anthony Schullo about 11:15 p. m. Schullo made a phone call and left the restaurant. About 11:30 p. m. Coduto entered the restaurant and gave Mattera a Chicago newspaper dated September 19, 1953 in the folds of which Mattera found an envelope containing heroin, but bearing no tax stamps. William J. Sheehan, a special investigator for the government, found one fingerprint on the newspaper that agreed with an impression of the right index finger of Iacullo taken by Sheehan when Iacullo was brought to the Narcotics Bureau under arrest on March 16, 1954.

On October 13, 1953, Mattera was seated in a booth in the College Pharmacy with Coduto and Schullo. Mattera told Coduto that he was dissatisfied with his methods of transacting business and that he refused to do any further business with him. Schullo said to Mattera "Well, don't bother, from here on in, I will take care of you, — I will take care of your needs." Mattera told Schullo that he wished to purchase some narcotics and Schullo made a telephone call from the rear of the store, whereupon he returned and told Mattera that "his connection" would be there about 9 o'clock. The first time that Mattera had seen Anthony Pape was about 8:45 p. m. when Pape was going through the revolving door into the street. Schullo then left Mattera's presence for about 5 or 10 minutes.

On October 14, 1953, about 9 a. m., Mattera met Schullo and Coduto in the College Pharmacy and Mattera then gave Schullo $800. Mattera and Coduto entered Mattera's automobile. Narcotics Bureau agent Durham, in his car, followed by Schullo in a 1949 Plymouth sedan, took a position behind Mattera's car and the three automobiles proceeded to the Ogden Avenue and Jackson Boulevard service station into which Mattera and Coduto turned. Schullo continued west on Jackson Boulevard for a short distance and Durham continued driving west, ahead of Schullo. In his rear view mirror, Durham saw Schullo make a U-turn and drive back east to the service station. Durham made a U-turn. Schullo drove into the station beside Mattera's car. Schullo left his car and joined Mattera and Coduto after which Mattera entered the men's room, where he obtained a package containing narcotics, which was secreted under a wash basin in the station. He then left the station alone in his car. Coduto and Schullo entered Schullo's car and drove to Van Buren and Paulina Streets where the car was parked. Coduto left the car and Schullo was then joined by Iacullo. They sat in Schullo's car for 2 or 3 minutes after which Schullo drove the car south on Paulina Street and turned east into Taylor Street where the car was again parked. Schullo and Iacullo talked in the car for 10 or 15 minutes after which Sperna walked along the street from his nearby home. Iacullo then left the car and approached Sperna and a conversation took place. Iacullo waved his hand to Schullo after which the latter drove his car away. Iacullo remained with Sperna. They went to a luncheonette at Ashland Avenue and Taylor Street. They had on numerous occasions visited this luncheonette where they conversed with each other and Iacullo talked to many other persons there.

The first time Mattera spoke with Pape was on November 28, 1953 in a tavern. On December 9, 1953, they talked on the telephone and at 8 p. m. that day they met near Ferdinand and Hamlin Streets, where Mattera received a package containing narcotics from Pape and gave him $1,650. The outer wrapping of the package was a half sheet of a newspaper wrapped around two envelopes, and encircled by a rubber band. This half sheet of newspaper contained two fingerprints of Iacullo identical with his prints later taken on March 16, 1954.

None of the packages which Mattera obtained in any of the transactions referred to herein bore federal tax stamps.

On February 18, 1954, about 9 a. m., an automobile driven by Sperna stopped near the premises at 1620 Roosevelt Road and Iacullo got out of the car, entered said premises, reappeared in five or ten minutes, entered Sperna's car and left. Ten or fifteen minutes thereafter Pape came out of said building, entered a car and left the vicinity. Mrs. Pape, the mother of Anthony Pape, lived in the second floor apartment, the mail box for which bore the name of James Pape. The telephone there was registered in the same name. The building had other entrances under different street numbers.

There is a dispute in the evidence as to what occurred at the Bureau of Narcotics when Iacullo's fingerprints were taken by Sheehan on March 16, 1954, following his arrest. Iacullo testified that he asked why he was under arrest and stated that he did not want his "prints" taken. He was told that "it is customary when you are under arrest." He said that the United States marshal read the charge to him the next morning. Government witnesses testified that a warrant had been issued for the arrest of Iacullo but that it was not in the possession of the agents when the arrest was made. There was no physical force used to procure Iacullo's fingerprints. Sheehan testified that Iacullo made no objection when asked to come to the stand for fingerprinting. Agent Cass testified that when brought in to...