United States v. Mazzochi, 260.
| Decision Date | 04 February 1935 |
| Docket Number | No. 260.,260. |
| Parties | UNITED STATES v. MAZZOCHI et al. |
| Court | U.S. Court of Appeals — Second Circuit |
David Paley, of New York City (Jay Cohen, of New York City, of counsel), for appellants.
Martin Conboy, U. S. Atty., of New York City (Charles T. Murphy, Asst. U. S. Atty., of New York City, of counsel), for the United States.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
The defendants Mazzochi and Millinan, with seven others, were twice indicted in the District Court; each indictment being in four counts, the fourth being for conspiracy. At the trial the prosecution moved to consolidate the two indictments, which was done, and upon the third day Mazzochi and Millinan pleaded guilty; the trial continuing against the others, whom this appeal does not concern. At its conclusion the court sentenced Mazzochi and Millinan to two years' imprisonment on each conspiracy count, to be served consecutively, and to two fines of $10,000 each, thus duplicating the maximum sentence. The only question on this appeal is whether the two counts laid separate crimes. No bill of exceptions was prepared, and of course none would have been possible upon a plea of guilty, since the evidence had nothing to do with these defendants. Each count was the same except for its concluding clause; each alleged that all the defendants from the 1st of January until April 9th, when the indictment was filed, conspired with other persons unknown to the grand jury in the vicinity of the corner of Twenty-Fourth street and Seventh avenue, 90 Bowery and 277 Grand street, to buy and sell heroin, cocaine, "and divers forms of drugs to the grand jurors unknown," after such drugs had been unlawfully imported into the United States. In pursuance of this general scheme, one defendant was to lease a specified apartment where the drugs were to be kept, four other defendants at 90 Bowery and at 277 Grand street were to solicit orders on the telephone for the sale of the drugs, and Mazzochi and Millinan were to deliver them pursuant to the orders so secured. So far the counts are verbatim and literatim identical, but their conclusions differed. In one it was alleged that on March 30th Mazzochi and Millinan and three of the other defendants were to meet near 220 West Twenty-Fourth street in order to sell to one Harris between two and three ounces of heroin. In the other it was alleged that on that day Mazzochi and Millinan and two other defendants were to meet near 220 West Twenty-Fourth street and attempt to sell to two other persons sixty-two grains of smoking opium. The overt acts were identical.
Thus these two alleged conspiracies were precisely alike in content and personnel up to the point where the two sales which...
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