United States v. Nuccio, 209

• Citation: 373 F.2d 168
• Decision Date: 05 January 1967
• Docket Number: Docket 30656.,No. 209,209
• Parties: UNITED STATES of America, Appellee, v. John NUCCIO, Rosario Lupo, and William Curcurato, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

373 F.2d 168 (1967)

UNITED STATES of America, Appellee, v. John NUCCIO, Rosario Lupo, and William Curcurato, Defendants-Appellants.

No. 209, Docket 30656.

United States Court of Appeals Second Circuit.

Argued November 30, 1966.

Decided January 5, 1967.

Certiorari Denied May 15, 1967.

Jerome Lewis, Brooklyn, N.Y., for defendants-appellants.

Jerome C. Ditore, Brooklyn, N.Y., (Joseph P. Hoey, U. S. Atty., E.D. New York), for appellee.

Before MEDINA, FRIENDLY and SMITH, Circuit Judges.

Certiorari Denied May 15, 1967. See 87 S.Ct. 1688.

FRIENDLY, Circuit Judge:

A grand jury in the District Court for the Eastern District of New York returned a one-count indictment chargin the three appellants, John Nuccio, Rosario Lupo and William Curcurato, of conspiring with Rose Carluccio, whose trial was later severed, and with Georges Henrypierre and Henri LaPorterie to import heroin into the United States contrary to law in violation of 21 U.S.C. § 174. After a short trial before Judge Rayfiel and a jury, all three defendants were found guilty and sentenced.

Henrypierre, an Air France steward for fourteen and a half years, was arrested at Kennedy International Airport in January, 1965, for carrying in his luggage a three kilogram package of heroin given him in Paris by Henri LaPorterie for delivery to Curcurato at the latter's apartment on 58th St. in Queens. As the Government's chief witness at the trial, he testified he had made approximately ten such deliveries to Curcurato, first at an apartment on 45th St. in Queens to which LaPorterie had given him a key, and later at the 58th St. apartment to which Curcurato had given him keys. On two occasion in 1963 Curcurato gave him money to take back to Paris. LaPorterie's direction was that after delivering narcotics to specified addresses in Brooklyn or Queens, Henrypierre was to call a New Jersey telephone number. This belonged to Rose Carluccio, who testified she had standing instructions from Nuccio to say that he would meet the caller the next day "in the same place." The rendezvous was the C.B.S. building on 7th Avenue in Manhattan. On some fifteen to twenty occasions, four or five of which Mrs. Carluccio corroborated, this procedure resulted in Nuccio's handing Henrypierre packages of money, from $20,000 to $70,000, which the steward would then deliver to LaPorterie in Paris. Nuccio would ask about the latter's health, send greetings and inquire whether Henrypierre had been in Brooklyn or Queens. Lupo was the Brooklynite; Henrypierre testified to three or four deliveries to Lupo's apartment. On one such occasion, when he found Lupo sitting in a car outside the building, they drove off and picked up Nuccio; Henrypierre left the narcotics in the car with the two, who jointly sought news of LaPorterie's well-being. Henrypierre was compensated by LaPorterie for his services at the rate of $100 per kilo and at times the defendants also paid him $100 for taking money back to France. The Government adduced some evidence corroborating the testimony of Henrypierre and Mrs. Carluccio, although none of it directly showed criminality. Curcurato testified, admitting that Henrypierre had come to his two apartments in Queens but asserting that this was for gambling rather than delivery of narcotics. Nuccio and Lupo offered no evidence.

The only challenge to sufficiency of the evidence is the rather standard claim that the proof showed two conspiracies — in this instance one involving the two Frenchmen with Nuccio and Lupo and the other solely with Curcurato — rather than the single conspiracy which the judge told the jury it must find in order to convict. The challenge fails. Nuccio's inquiries about deliveries in Brooklyn and Queens constituted evidence linking all three defendants. Regarded as verbal acts in furtherance of the conspiracy — reminders by Nuccio to Henrypierre that his job required him to make deliveries in Brooklyn and Queens and admonitions to go there if he had not yet done so — rather than as mere testimonial declarations — "I have colleagues in Brooklyn and Queens" — they were admissible against all the defendants even without other proof of common action. Lutwak v. United States, 344 U.S. 604, 617-619, 73 S.Ct. 481, 97 L.Ed. 593 (1953); United States v. Costello, 352 F.2d 848, 853-854 (2 Cir. 1965), cert. granted as to another point, 383 U.S. 942, 86 S.Ct. 1195, 16 L.Ed.2d 205 (1966). Whether or not these inquiries and the proof of deliveries to Lupo and Curcurato in Brooklyn and Queens would alone have been enough to prove a single conspiracy, the addition of the evidence that LaPorterie, who was known to all the defendants, had designated Nuccio as pay-master in chief, sufficed to link both Curcurato and Lupo in the overall operation. As Judge Hincks said in United States v. Stromberg, 268 F.2d 256, 264 (2 Cir.), cert. denied, 361 U.S. 863, 80 S.Ct. 123, 4 L.Ed.2d 102 (1959), "from such evidence it might rationally be inferred that one joining such a consipracy knew that it had a scope and that, for its successful operation, it required a wide-spread organization, more comprehensive than may have been disclosed by any contact or transaction of which he had knowledge through his actual personal participation." See also United States v. Borelli, 336 F.2d 376, 382-384 (2 Cir. 1964), cert. denied sub nom. Cinquegrano v. United States, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965). We therefore turn to the claims of errors in the course of the trial and in the charge.

The first of these was the court's refusal to allow Henrypierre to be cross-examined as to homosexual advances to Curcurato allegedly made and repulsed. While it would indeed have been wrong to permit cross-examination on the score of homosexuality merely to discredit Henrypierre's character, United States v. Provoo, 215 F.2d 531, 535-537 (2 Cir. 1954), the narrower proposal to interrogate concerning repulsed homosexual advances to one of the defendants went to the witness' bias and motive, and should have been allowed. Tla-Koo-Yel-Lee v. United States, 167 U.S. 274, 17 S.Ct. 855, 42 L.Ed 166 (1897); United States v. Masino, 275 F.2d 129, 132 (2 Cir. 1960); United States v. Barash, 365 F.2d 395, 400-401 (2 Cir. 1966); McCormick, Evidence 83 (1954); 3 Wigmore, Evidence § 950 (1940 ed.). However, Curcurato testified in considerable detail to the homosexual attempt and Henrypierre's threat to "get" him because he repelled it; also Henrypierre was called in rebuttal and denied the episode, and Curcurato's counsel cross-examined in an unsuccessful effort to show that the denial was contrived. There is no reason to suppose that cross-examination immediately after Henrypierre's testimony in chief would have produced answers on his part more favorable to the defense. Neither do we find sufficient basis for reversal in Curcurato's contention that he should have been permitted to ask Henrypierre whether he was a homosexual on the theory that an affirmative answer would have lent credence to the defendant's version of the facts. Admission by Henrypierre of some homosexual tendency would have gone only a small way toward proving that he approached Curcurato and that his approach was violently repelled. Weighed against the rather slight probative value, the adverse effect of such evidence in improperly discrediting and embarrassing the witness justified the trial court in excluding it. See 3 Wigmore, Evidence § 951 (1940 ed.).

The judge's refusal to charge that allegedly inconsistent testimony by Henrypierre in the trial of other defendants for a narcotics offense in the Southern District of New York should be considered as affirmative evidence and not merely as affecting credibility is contended to run counter to our decisions in United States v. DeSisto, 329 F.2d 929 (2 Cir.), cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964), and United States v. Borelli, supra, 336 F.2d at 391 & n. 11. After eliminating instances where no inconsistency existed, the argument comes down to this: Henrypierre testified at the instant trial that over the years he had delivered narcotics to four people whereas in the Southern District he had given the number as two, one being Charles Hedges and the other having an appearance different from any of the defendants; and whereas at this trial he testified to deliveries to Curcurato and Lupo in 1964, he said in the Southern District that in that year he had made deliveries to only one person, presumably either Hedges or the other man mentioned above.¹ His explanation of the apparent discrepancy was that his testimony in the Southern District was directed only to the group and the events he thought were involved in that trial.

Although counsel refers to DeSisto and Borelli as if they enunciated the same principle, this is not at all the case. In Borelli we merely adhered to the established doctrine that when a witness specifically reaffirms the truth of something he had said elsewhere, the earlier statement constitutes evidence as fully as what he says on the stand. Citing many cases, we pointed out that "This principle long antedates and is quite different from our decision in United States v. De Sisto * * *." See also United States v. Persico, 349 F.2d 6, 12 (2 Cir. 1965). However, a witness scarcely reaffirms the truth of a prior statement within the meaning of this rule when he says that, although the statement was true, it was not directed to facts now at issue. The rule, for example, would not require equating the affirmation of a previous statement that the witness had never seen John Doe with trial testimony that he had, if the former statement related to an earlier period.

De Sisto dealt with the harder problem where a witness called to establish a fact in the proponent's case denies the fact or knowledge of it although, as the proponent then proves, he had testified to it before a grand jury or at a former trial concerned with the self-same...