United States v. Masullo

• Decision Date: 26 November 1973
• Docket Number: 300,73-1907.,No. 200,224,Dockets 73-1733,73-1772,200
• Citation: 489 F.2d 217
• Parties: UNITED STATES of America, Appellee, v. Frank MASULLO et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

489 F.2d 217 (1973)

UNITED STATES of America, Appellee, v. Frank MASULLO et al., Defendants-Appellants.

Nos. 200, 224, 300, Dockets 73-1733, 73-1772, 73-1907.

United States Court of Appeals, Second Circuit.

Argued October 10, 1973.

Decided November 26, 1973.

COPYRIGHT MATERIAL OMITTED

Michael B. Mukasey, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty. for the Southern District of New York, John D. Gordan III and John W. Nields, Jr., Asst. U. S. Attys., of counsel), for appellee.

Abraham Glasser, New York City (Jacob P. Lefkowitz, New York City, on the brief), for defendant-appellant Masullo.

Gilbert Epstein, Theodore Krieger, New York City, for defendant-appellant Edelman.

Before FRIENDLY, ANDERSON and MULLIGAN, Circuit Judges.

MULLIGAN, Circuit Judge:

This is an appeal by Frank Masullo, Ambrose Pare and Michael Edelman from judgments of conviction which were entered on May 7, 1973 in the United States District Court for the Southern District of New York. Appellants were all convicted of conspiracy to distribute and to possess with intent to distribute a Schedule II controlled substance (methamphetamine hydrochloride —popularly known as "speed") in violation of 21 U.S.C. §§ 812, 841(a) (1), 841(b) (1)(B) and 846, after a jury trial before Hon. Arnold Bauman, United States District Court Judge, which commenced on April 3, 1973 and ended on April 10, 1973. The jury did not reach a verdict on a substantive count of distribution of speed as to which Judge Bauman declared a mistrial. On May 7th Masullo was sentenced to a five-year prison term and a special parole period of two years, and Pare was sentenced to a prison term of two years. Sentence was suspended on Pare who was placed on probation for three years. Judgments affirmed.

In view of the character of the arguments raised on appeal, no elaborate discussion of the facts is necessary. The evidence of the Government established that an undercover agent, Nicholas Alleva, with the assistance of an informant, Joseph Swiatek, conducted negotiations with Pare for the purchase of pure amphetamine. After the usual furtive negotiations and meetings which characterize this business, the sale of about a half pound of amphetamine for $4500 was made on August 17, 1972 in Pare's apartment at 41 West 35th Street in New York City. All three of the defendants were present in addition to Alleva and Swiatek. Also present, but not named as a defendant was fellow conspirator Charles Velasquez. The supplier was Masullo who was observed to take $4000 of the payment which was in marked bills. Pare's share was $500. Masullo had been the subject of a two-year investigation by the Bureau of Narcotics and Dangerous Drugs (BNDD) as a major supplier of speed. Edelman was a henchman of Masullo, who on the afternoon of the sale told Swiatek that he had been sent ahead by Masullo to count the money before the package was delivered. Swiatek vehemently insisted that the deal had to be made directly with Masullo and not with his underling.

Agents who were surveilling Masullo observed him arriving with Edelman at a hotel near Pare's apartment carrying a brown paper bag. Edelman was then observed entering 41 West 35th Street carrying the same brown paper bag. Masullo soon followed and the sale was then consummated as described. Masullo and Pare were arrested on August 29, 1972. Masullo still had in his possession $1700 in the marked currency employed in the sale. Neither Masullo nor Edelman presented any defense.

I

On appeal Edelman urges that there was insufficient evidence upon which to base his conspiracy conviction. Looking at the evidence in the light most favorable to the Government as we must (Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Tutino, 269 F.2d 488, 490 (2d Cir. 1959)), there is no doubt that Edelman, although not a figure of major importance, was nonetheless an active participant in the conspiracy charged in the indictment. The uncontradicted evidence established that Edelman was a trusted lieutenant of the major figure of the conspiracy, Masullo. He was sent out to make sure that everything was in readiness for the transaction including the payoff; he was observed carrying the inevitable brown paper bag which the jury could reasonably infer contained the speed which was eventually sold to the agents. He was not only present at the sale, but extolled the quality of the merchandise. There was clearly sufficient evidence to support the jury's determination that Edelman was part and parcel of the criminal enterprise and not an innocent bystander. See United States v. Martinez, 479 F.2d 824, 829 (1st Cir. 1973); United States v. Garguilo, 310 F.2d 249, 253-254 (2d Cir. 1962).

Appellant's argument that there could be no conviction of Edelman without proof that he was in actual or constructive possession of the amphetamine is not sound. Edelman was indicted for conspiracy to violate 21 U.S.C. § 841 (a) which involves not only possession but also, in the alternative, the distribution or dispensing of the contraband. The court made this point clear in its instructions to the jury. Even if the charge had been limited to conspiracy to possess there would have been no need of showing actual or constructive possession.¹ See United States v. Rappy, 157 F.2d 964, 966-967 (2d Cir. 1946), cert. denied, 329 U.S. 806, 67 S. Ct. 501, 91 L.Ed. 688 (1947).

II

The appellant Pare makes the argument that it was reversible error for the court to refuse to give the so-called "procuring agent charge," to wit:

If you find that the defendant, Pare, was asked by a federal agent or his special employee to buy drugs for him, and the defendant, Pare, then purchased from a third person with whom he was not associated in selling, then you must acquit Pare of the charges against him.

The procuring agent charge had validity where a defendant was charged with selling narcotics (United States v. Winfield, 341 F.2d 70 (2d Cir. 1965)), and there was evidence that he in fact was acting on behalf of a buyer rather than the seller. The legal theory is that as an agent for the buyer he is a principal in or is conspiring in the purchase rather than the sale of the contraband. United States v. Sawyer, 210 F.2d 169, 170 (3d Cir. 1954). See also Lewis v. United States, 119 U.S.App.D.C. 145, 337 F.2d 541, 543-544 (1964), cert. denied, 381 U.S. 920, 85 S.Ct. 1542, 14 L. Ed.2d 440 (1965).

It has no present application where the charge is not sale but rather distribution or possession with intent to distribute. The statute (21 U.S.C. §§ 802(10) & 802(11)) defines "dispense" and "distribute" to mean "deliver" and the term "deliver" is defined to mean "the actual, constructive, or attempted transfer of a controlled substance, whether or not there exists an agency relationship" (21 U.S.C. § 802 (8)). Under any view of the evidence, Pare was unquestionably actively seeking a transfer of the controlled substance and therefore the requested charge was properly refused. Other circuits have recently reached the same conclusion in cases which are directly in point. United States v. Miller, 483 F.2d 61, 62 (5th Cir. 1973); United States v. Johnson, 481 F.2d 645, 646-647 (5th Cir. 1973); United States v. Hernandez, 480 F.2d 1044, 1046 (9th Cir. 1973); United States v. Workopich, 479 F.2d 1142, 1147 (5th Cir. 1973); see United States v. Jackson, 482 F.2d 1264, 1267 (8th Cir. 1973).

III

The appellant Masullo argues that his conviction should be reversed because of the admission of testimony of BNDD agents to the effect that after his arrest Masullo admitted that he had delivered and sold about a half pound of speed to one Nick Alonzo (the undercover name of Alleva) on August 17th. He further objects to the testimony of a former Assistant United States Attorney that Masullo admitted at an interview not only the August 17th deal but conceded that he lived on the money he made selling speed. The admissions made were of course damaging and supported the direct testimony of Swiatek and Alleva as to the August 17th transaction. Masullo argues that the admission of his statements violated his Fifth and Sixth Amendment rights as well as the Canons of Professional Ethics.

With respect to his Fifth Amendment rights, we see no merit whatever in appellant's claims. Masullo was given Miranda warnings at the time of his arrest, at the time he was interrogated by BNDD agents in their office after his arrest, and finally at the interview before the Assistant United States Attorney where he admitted that his prior statements were given "freely and voluntarily." This question was the subject of a suppression hearing prior to trial at which Masullo did not testify or offer any evidence. A reading of the transcript of the hearing makes it clear beyond doubt that Masullo's admissions constituted a waiver of his right to remain silent. See United States v. Ramirez, 482 F.2d 807, 815 (2d Cir. 1973). There are no claims made of unnecessary, prolonged or harassing custodial interrogation. See United States v. Marrero, 450 F.2d 373 (2d Cir. 1971), cert. denied, 405 U.S. 933, 92 S.Ct. 991, 30 L.Ed.2d 808 (1972).

Appellant's Sixth Amendment argument rests on the failure of the agents to notify Masullo's attorney that he had been arrested and was presently in custody. On the morning of the day of his federal arrest, Masullo, who had previously been arrested by the New York City Police for another drug violation, appeared in a New York State proceeding at the New York Criminal Court Building, 100 Centre Street, New York City. Upon his departure he was observed taking a taxi to 299 Broadway, where he proceeded to the offices of Rubin, Gold and Geller, who had represented him in the past and in the existing New York State criminal action. Masullo was arrested across the street immediately after he left the building. He was taken to the BNDD office in Manhattan. Appellant's theory is that since the...