United States v. Monica

• Decision Date: 23 October 1961
• Docket Number: No. 8,Docket 26758.,8
• Citation: 295 F.2d 400
• Parties: UNITED STATES of America, Appellee, v. Michael MONICA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

295 F.2d 400 (1961)

UNITED STATES of America, Appellee, v. Michael MONICA, Defendant-Appellant.

No. 8, Docket 26758.

United States Court of Appeals Second Circuit.

Argued September 26, 1961.

Decided October 23, 1961.

Certiorari Denied January 8, 1962.

Allen S. Stim, New York City (Menahem Stim and Allen S. Stim, New York City, on brief), for appellant.

Joseph J. Marcheso, Brooklyn, N. Y. (Joseph P. Hoey, U. S. Atty., E.D.N.Y., Margaret E. Millus, Asst. U. S. Atty., Brooklyn, N. Y., on brief), for appellee.

Before LUMBARD, Chief Judge, and FRIENDLY and SMITH, Circuit Judges.

Certiorari Denied January 8, 1962. See 82 S.Ct. 395.

FRIENDLY, Circuit Judge.

Michael Monica appeals from a judgment of the District Court for the Eastern District of New York, rendered after a verdict convicting him of conspiracy to violate 21 U.S.C.A. § 174, which prohibits among other things the transportation or sale of illegally imported narcotics, and sentencing him to imprisonment for a term of eight years. The conspiracy count of the indictment named nine other defendants; eight of them pleaded guilty and the ninth was found so by another jury. The only points argued, or meriting argument, were the sufficiency of the evidence, both generally and in particular relation to the "possession" which the final sentence of § 174 makes "sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury," and the charge.

The Government presented ample evidence, not limited to that summarized below, to show a conspiracy in the spring of 1959, wherein orders for narcotics were accepted by defendant John Freeman at the Palm Florist Shop in Brooklyn; narcotics were ordered by Freeman from defendant Joseph Valachi, a resident of the Bronx; deliveries were made by Valachi or his associates to Freeman or Freeman's associate, defendant Horton; and deliveries to the customer were effected, or attempted, by Horton or other associates of Freeman.

The first issue is whether there was sufficient evidence to link Monica with this conspiracy. The Government's evidence to that end may be summarized as follows:

(1) On March 30, some time after a narcotics agent had placed an order for heroin with John Freeman, the latter met Horton in the afternoon at the Palm Florist's in Brooklyn, and again early in the evening at the Esquire Florist Shop, another Freeman enterprise, in Harlem. Late in the afternoon defendant Wagner visited Valachi's residence in the Bronx. In the early evening Wagner met defendant Sperling, Monica saw Valachi for five minutes at the Bronx apartment of a Mrs. Cuccuru, and Wagner, Sperling and Freeman assembled briefly at the Esquire Florist Shop. Sperling then drove off from the shop in a green Oldsmobile for the Bronx, where he parked the car and left it. An hour later Monica paid a half-hour visit to the Cuccuru apartment, returning again at 1:15 A.M. on March 31; Valachi there handed Monica a brown paper package which Monica put inside his shirt pocket. Meanwhile Horton had gone to the Bronx River Bar. Monica then met Wagner and Sperling at another Bronx bar, the Maple, each arriving separately. Sperling left the Maple Bar, went to the green Oldsmobile, placed a package under the seat, and walked past the Bronx River Bar, nodding as he did. Horton emerged, entered the parked Oldsmobile, drove to Brooklyn, and sold a package containing heroin to a special employee of the Narcotics Bureau.

(2) On the evening of April 4, Horton drove a green Oldsmobile to the same location in the Bronx and again entered the Bronx River Bar. A black Ford, with Monica the driver and Wagner a passenger, slowly passed the Oldsmobile, made a U-turn, and passed it again. Monica and Wagner returned an hour later. Wagner got out of the Ford, opened the Oldsmobile with a key, and placed a brown paper bag on the driver's seat. He walked to the Bronx River Bar and went in; an hour later Horton exited and drove off in the Oldsmobile, only to be apprehended by a New York City detective who found in the car a brown paper bag containing packages of heroin.

(3) In the morning of May 6 a Federal narcotics agent ordered 20 ounces of "cut stuff" from John Freeman who undertook to make delivery on May 7. On the evening of May 6, shortly after Freeman had reconfirmed the deal, an agent heard Valachi and Monica outside a theater in the Bronx in a conversation described as follows:

"Vallacci sic said, `John\'s customer in Brooklyn is taking a half\' and the defendant Michael Monica said, `A half\' he said `All right\' and Vallacci said, `Get a half and a quarter, too\' and the defendant said, `A half and a quarter — okay,\' and Vallacci said to Monica, `Be careful\' and that was it."

Monica left in a black Ford. The following evening lieutenants of Freeman made a delivery of 120 envelopes, containing 121 ounces of heroin, to the narcotics agent.

Whether the test of sufficiency of the evidence for the jury in a criminal prosecution be properly phrased as simply that "the evidence would have been enough in a civil action," United States v. Costello, 2 Cir., 1955, 221 F.2d 668, 671 affirmed, 1956, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397, and cases there cited, or, as reasoned by Judge Hutcheson in Cuthbert v. United States, 5 Cir., 1960, 278 F.2d 220, 224, that the evidence must be "substantial enough to establish a case from which the jury may infer guilt beyond a reasonable doubt," see United States v. Lefkowitz, 2 Cir., 1960, 284 F.2d 310, 315, the evidence here met it....