United States v. LaSorsa

• Decision Date: 11 June 1973
• Docket Number: No. 795,Docket 73-1210.,795
• Parties: UNITED STATES of America, Appellee, v. Nicholas LaSORSA and Salvatore Caio, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

480 F.2d 522 (1973)

UNITED STATES of America, Appellee, v. Nicholas LaSORSA and Salvatore Caio, Defendants-Appellants.

No. 795, Docket 73-1210.

United States Court of Appeals, Second Circuit.

Argued April 17, 1973.

Decided June 11, 1973.

Arthur J. Viviani, Franklin Velie, Richard J. Davis, John W. Nields, Jr., Asst. U. S. Attys., Whitney North Seymour, Jr., U. S. Atty., for appellee.

Jay Goldberg, New York City, for defendant-appellant LaSorsa.

H. Elliot Wales, New York City, for defendant-appellant Caio.

Before CLARK, Associate Justice,^* and WATERMAN and FEINBERG, Circuit Judges.

WATERMAN, Circuit Judge:

After a five day jury trial in the United States District Court for the Southern District of New York, the defendants-appellants, Nicholas LaSorsa and Salvatore Caio, charged in a one-count indictment, were convicted of conspiracy to sell heroin without the buyer's written order form in violation of Title 26, United States Code, Sections 4705(a) and 7237(b), and were sentenced to mandatory prison terms of five years each.¹ At the trial, the Government, in seeking to establish the defendants' guilt, rested its case primarily on the testimony of its star witness, James Brown, a convicted felon then out on parole from a seven year prison term imposed on him by a New York state court for robbery and conspiracy to kidnap. Brown was named in the indictment as a co-conspirator of the defendants although he was not charged as a codefendant. Upon taking the stand as the Government's key witness, Brown testified that from May 1968, to April 1969, he was employed on a commission basis by the defendants to sell heroin on the defendants' account at prices ranging from $26,000 to $30,000 per kilo. He stated that during this period he was able to arrange a number of transactions in New York City and that for each kilo he sold he received from the defendants a $1,000 sales commission. He also testified that at his initial introductory meeting with the defendants he was instructed by them that whenever he had a buyer who wanted heroin he was to contact the defendants by calling LaSorsa at LaSorsa's place of business, Dale Oldsmobile, and asking for a Mr. Clark. At this first introductory meeting, after LaSorsa had instructed him to call Dale whenever he had a purchaser, LaSorsa also handed him a business card with LaSorsa's private telephone number at Dale handwritten on the card, and this card was introduced into evidence as a government exhibit. He further stated that during the course of his subsequent business relationship with the defendants he had called LaSorsa at Dale many times to inform him that he had set up buys and that he had even visited Dale on about thirty occasions to meet with LaSorsa personally. Brown concluded his testimony by detailing the ways in which he had brokered large quantities of heroin for the defendants during his 11 months of association with them. During this part of his testimony he spoke at length, and apparently convincingly, about the details of his many transactions, and especially about his sales to two retailers of heroin, "Goldfinger," his Harlem connection, and Luther Hazel, the Government's next witness.

Hazel had been named in one of the overt acts listed in the indictment as furthering the alleged conspiracy, as having received heroin from Brown, and, in the bill of particulars the Government furnished the defense, was characterized as one who "might be considered" a co-conspirator. Hazel's testimony related to an incident which occurred after he had made his first, and only, purchase from Brown. As Hazel's workers had been unable to resell the drugs on the street quickly enough to raise sufficient cash to pay the purchase price of $30,000 he did not make his payment to the defendants on the day it was due. Shortly thereafter he met with Brown and the defendants in an automobile, and while Caio held him at gunpoint in the car LaSorsa demanded payment and, to drive the point home, hit him in the face several times. Eventually Hazel paid $23,500 on account, leaving unpaid a balance of $6,500, plus $2,000 or so borrowed to pay Hazel's packaging helpers. LaSorsa told Brown to forget this balance.

The remainder of the Government's direct case was devoted to introducing evidence tending to support the testimony that had been given by Brown. In order to establish the fact that Caio had been involved with narcotics on other occasions, the Government introduced the testimony of Neil McMillan, a three time felon then serving a Virginia state sentence for his third conviction. McMillan stated that three times during 1968 and 1969 Caio, as part of a separate retailing business, had employed him at a salary of $5,000 a week to dilute and package heroin. Also, in order to verify a Brown statement that he and Tony LaSorsa, brother of Nicholas LaSorsa, had counted in the apartment of Audrey Flynn, Tony's girlfriend, money they had received from "Goldfinger," the government produced Flynn, who stated that she had indeed seen Brown and Tony counting money in her apartment.

Neither of the defendants testified in his own behalf, but the defense attempted to prove by other witnesses that the testimony of Brown and Hazel was not to be believed. The owner of Dale Oldsmobile and a current and a former employee of Dale (both of whom had worked at the telephone switchboard) established the fact that no one named Mr. Clark had ever worked at Dale and that, to their knowledge no one had ever called in and asked for a Mr. Clark. Although this testimony was meant to show that Brown was lying when he said he had called Dale many times and had asked for Mr. Clark, the prosecution established on cross-examination that LaSorsa had a private line at Dale and that calls from Brown to him probably would go through the private line noted on the card he gave Brown rather than through the main switchboard. The defense also attempted to prove that Brown's testimony was not to be believed because it differed from the story he had given to an FBI agent while Brown was an inmate at Sing Sing Prison. Although the defense was able to establish that Brown, when he first spoke to the agent at Sing Sing on July 9, 1970, made some statements that differed from portions of his trial testimony, the Government, on cross-examination of the agent, showed that in most respects the July 9 story was substantially the same as the testimony given at trial, and that, in any event, the story Brown gave at five subsequent meetings in Sing Sing with the same FBI agent was exactly the same story he gave at trial. In any event, the jury believed Brown's trial testimony, and, after one day of deliberation, reached a guilty verdict as to both defendants.

In urging a reversal of their convictions the defendants contend: (1) that the prosecutor's summation was prejudicial and denied the defendants a fair trial, for it unfairly placed the prestige of the United States Attorney and the United States Bureau of Narcotics behind the testimony of Brown; (2) that the lower court committed "plain error" in failing to charge the jury that accomplice testimony should be "scrutinized with care and caution"; (3) that the lower court erred when it restricted the efforts the defense was making in the cross-examination of Brown and Hazel to establish the bias of these co-conspirators against the defendants; and also erred when it permitted Brown to assert his privilege against self-incrimination at one point during his cross-examination; and (4) that the defendants' sixth amendment right to a jury trial was abrogated by the substitution without the defendants' prior consent of Judge Bauman for Judge Gagliardi as presiding judge on the final day of the trial.

Having carefully reviewed the trial record we find no merit in these contentions, and we affirm the convictions.

I

The defendants first claim that they were denied a fair trial because the prosecutor stated in his summation that the jury should acquit if it believed the Government "framed" the defendants. They claim that the argument was uncalled for by any defense argument and that it unfairly prejudiced the defense in that it bolstered the credibility of the Government's witnesses by placing the Government's prestige behind them. We agree with the defendants that a prosecutor should not bolster the Government's case by placing the prestige of the United States Government behind the witnesses for the prosecution. See United States v. Puco, 436 F.2d 761, 762 (2 Cir. 1971). Here, by structuring its argument in such a way as to suggest to the jury that if it should vote for acquittal it would be implicitly agreeing with the defendants' insinuations that the prosecution had "framed" the defendants, it is arguable that the prosecution did place its own prestige behind its witnesses.² If the strategy behind this approach was to introduce prejudicial new matter into the case by suggesting that the defense had made insinuations of prosecutorial misconduct that the defense had not really made, it might be that the prosecutor's conduct was prejudicially improper. However, here, it is manifest from even a casual reading of the jury arguments of defense counsel that the prosecution was only meeting the defense on a level of the defense's own choosing. The defense had, indeed, insinuated precisely the type of prosecutorial misconduct which the prosecutor was attempting to refute in his argument to the jury, so quite justifiably, he argued responsively that the Government had not "framed" the defendants and that, if the jury thought the Government had done so, it should acquit them. The defense arguments to the jury are replete with characterizations of the Government's witnesses as "stars of a little play," "creeps," "the gem of gems" (reference to Brown), and "what a beauty" (reference to Hazel) — all open insinuations that the Government had without justification, staged a framed prosecution....