United States v. Pepe

• Decision Date: 12 September 1957
• Docket Number: No. 296,Docket 24431.,296
• Citation: 247 F.2d 838
• Parties: UNITED STATES of America, Appellee, v. Flora PEPE and Nicholas Buono, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

247 F.2d 838 (1957)

UNITED STATES of America, Appellee, v. Flora PEPE and Nicholas Buono, Appellants.

No. 296, Docket 24431.

United States Court of Appeals Second Circuit.

Argued June 6, 7, 1957.

Decided September 12, 1957.

Paul W. Williams, U. S. Atty., for S. D. New York, New York City (Robert Kirtland and John A. Keeffe, Asst. U. S. Attys., New York City, of counsel), for appellee.

Samuel W. Altman, New York City, (and Harry Silver, New York City, on the brief), for defendant-appellant, Flora Pepe.

Dominick A. Fusco, New York City, for defendant-appellant Nicholas Buono.

Before MEDINA, LUMBARD and WATERMAN, Circuit Judges.

LUMBARD, Circuit Judge.

Flora Pepe and Nicholas Buono appeal from their conviction by a jury on three counts of an indictment charging them with the possession of narcotics illegally imported, possession of heroin and cocaine without paying the special tax, and conspiracy to sell and possess narcotics, in violation of 21 U.S.C.A. §§ 173, 174, 26 U.S.C.A. §§ 4702(a), 4721, 4722, 4724(c), 7237(a), and 18 U.S.C.A. § 371, and prison sentences of two and five years respectively.

Before trial, Flora Pepe made a timely motion to suppress narcotics and other property seized in Apartment 5-E at 1172 Stratford Avenue in the Bronx while she was there on July 10, 1956. Her appeal challenges the trial judge's denial of this motion before trial, and the admission of the evidence against her at the trial.

Buono, while not complaining of the search, challenges the propriety of his conviction on several grounds: (1) As to the witness Sam Howard called by the government to identify Buono as Lorenzo who rented the apartment, Buono complains of Howard's impeachment by use of his prior grand jury testimony after he had failed to identify Buono. (2) He alleges further that the government pressed this issue to the point of prejudice through the testimony of the Assistant United States Attorney regarding what Howard had testified before the grand jury; (3) he contended that questions put to Howard to show his fear as a reason for his alleged recantation were prejudicial. (4) Buono further complains of prejudicial remarks in the government's summation to the jury. (5) Finally, he charges that the Court erred in the questioning of witnesses and in the charge to the jury.

On July 9, 1956 at 7 p. m., Raoul Vitale, who was described as a special employee of the Bureau of Narcotics, placed a telephone call and talked to a woman, "Flora," and a man, "Nicky" or "Nick." This call was overheard by Agent Mendelsohn, who identified the voices as those of Flora Pepe and Nicholas Buono, both of whom he did not meet until later. It was also shown that the receiving telephone was located in Apartment 5-E at 1172 Stratford Avenue in the Bronx and that the subscriber was one "Nicholas Lorenzo" who was never identified. Vitale asked Nick to meet him and a friend at the White Castle hamburger stand at the corner of Sound-view Avenue and Bruckner Boulevard to sell narcotics to Vitale's friend. Nick complained that Vitale owed him money for previous purchases but he agreed to a meeting at the hamburger stand at 9 p. m.

At about 9 p. m. a man identified by Agent Matuozzi as Buono, was seen by Matuozzi to leave the apartment with Flora Pepe. He got into a black and white Chevrolet automobile parked nearby, and a few minutes later was seen by Agent Consoli to drive up to the White Castle hamburger stand, and to stop and wave to Vitale who was inside with Consoli. The man drove into the parking lot next to the White Castle within a few feet of Agent Mendelsohn, but, instead of getting out, he stepped on the gas and drove away at high speed according to Mendelsohn. Vitale again phoned, related what had happened, and told Flora Pepe he would call her the next day.

The next day, July 10, Vitale failed to meet the agents as they had planned. Mendelsohn pretending to be Vitale and disguising his voice accordingly, telephoned the number and Flora answered and said Nicky was out. She said she could not leave the apartment to deliver narcotics because she had orders not to leave when there was "stuff" there. She said she expected Nicky to return and suggested that Mendelsohn call again in an hour. Mendelsohn called again at 8 p. m. and when Flora said that Nicky had not yet arrived, he asked her to bring the narcotics to him at any place she suggested. She repeated that she was not supposed to leave when there was any "stuff" there and that he would have to wait for Nick.

After the second call, Agents Matuozzi and Consoli took positions on the fire escape outside Apartment 5-E. Mendelsohn knocked on the door at a prearranged time and called out "Federal Agents." Matuozzi and Consoli then saw Flora Pepe go to a closet and reach for a vanity case on the shelf. She took the vanity case and as she ran toward the window where the agents where observing, she tried to open the case. Consoli then broke the glass of the window, lifted the window, and he and Matuozzi stepped into the apartment. Flora Pepe dropped the case on the floor. It opened and the agents could see that it contained "glassine envelopes containing a white powder." When Consoli identified himself as a narcotics agent, Flora Pepe said, "You can't prove it is mine."

According to the government version of events, Consoli scooped up the narcotics from the floor, placed Flora Pepe under arrest and searched the premises. In the vanity case were nineteen glassine envelopes which contained eighteen ounces of heroin and a glass jar containing twenty-eight capsules of cocaine. In the apartment the agents also found a weighing scale, with two pans and a number of weights, containers of milk sugar, cardboard cartons of glassine envelopes, three strainers and a sifter, a jar of empty capsules, a box of staples and a stapler, and some rolls of Scotch tape, — in short, paraphernalia which the jury could well conclude were used for the retailing of narcotics.

On August 6, 1956, after indictment on July 23, but before trial, Flora Pepe moved to suppress the narcotics and other materials seized in the apartment on July 10. Regarding her standing to object to the search and seizure, her affidavit stated only that "On July 10, 1956, at about 7:30 p. m. and 8:00 p. m., your petitioner was in premises 1172 Stratford Avenue, Apartment 5-E thereof, located in Borough of Bronx, Country, City and State of New York." Buono did not join in the motion.

Prior to the trial, the trial judge heard testimony on the motion to suppress. He denied the motion on the ground that the search and seizure were reasonable as incidents of the lawful arrest of Flora Pepe; that when the agents saw Flora Pepe attempting to dispose of the contents of the vanity case, which the agents could reasonably conclude contained narcotics in view of the telephone calls of July 9 and 10, they were justified in breaking in and arresting Flora Pepe in view of the "rapidly moving circumstances" which confronted them.

We do not pass upon the question whether breaking into an apartment without a warrant is justified under such circumstances as were here shown as it is clear that Flora Pepe has no standing to object to the search.

Flora Pepe's petition alleged only that she was present in the apartment at the time the search was made. It is well settled that one who does not show either the right to possession of the premises searched or a possessory interest in the property seized will not be heard to complain that a search and seizure are illegal. United States v. Messina, 2 Cir., 1929, 36 F.2d 699. Even if it be assumed that Flora Pepe was rightfully in the premises with the consent of the tenant, or even in charge of the business there transacted, she is not a proper objector. Connolly v. Medalie, 2 Cir., 1932, 58 F.2d 629; United States v. Dellaro, 2 Cir., 1938, 99 F.2d 781; Daddio v. United States, 2 Cir., 1942, 125 F.2d 924. United States v. Jeffers, 1951, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59, is not in point as Jeffers claimed the seized narcotics were his. In McDonald v. United States, 1949, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153, the illegal seizure was suppressed as to the defendant Washington, who was present on the premises at the time of the seizure, only because co-defendant McDonald who leased the premises had successfully objected to the search. We so construed McDonald v. United States in United States v. Chieppa, 2 Cir., 241 F.2d 635, 638, certiorari denied, sub nom. Ivicola v. United States, 1957, 353 U.S. 973, 77 S.Ct. 1057, 1 L.Ed.2d 1136.

The recent per curiam decision of the Supreme Court in Kremen v. United States, 1957, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876, although somewhat obscure on this issue,¹ does not support Flora Pepe's contention. In that case, none of the four defendants alleged a proprietary interest in the property, and in its brief the government contended that none of the defendants had the requisite standing to raise the issue. But it was undisputed that one of the four co-defendants was the lessee of the property, and she had made a motion to suppress the evidence on the basis of that relationship although she filed no supporting affidavit averring that. Lessee status provides a sufficient interest for the return of illegally seized property and under McDonald v. United States, 335 U.S. at page 456, 69 S.Ct. at page 193, the evidence could not be used against any of her co-defendants.

We come then to Buono's allegations of error. We turn first to the testimony of Sam Howard, who was called by the government in an attempt to identify Buono as the lessee of Apartment 5-E.

The principal issue in the trial was whether Buono was the man who had leased the apartment and had made the appointment with Vitale which was never consummated. The government sought to rely on testimony by Howard and Agents Matuozzi, Mendelsohn and Consoli, but at the trial Howard refused to identify...