United States v. Pinna, 11499.

• Decision Date: 26 January 1956
• Docket Number: No. 11499.,11499.
• Citation: 229 F.2d 216
• Parties: The UNITED STATES of America, Plaintiff-Appellee, v. Roy PINNA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

229 F.2d 216 (1956)

The UNITED STATES of America, Plaintiff-Appellee, v. Roy PINNA, Defendant-Appellant.

No. 11499.

United States Court of Appeals Seventh Circuit.

January 26, 1956.

Myer H. Gladstone, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill. (Anna R. Lavin, Edward J. Calihan, Jr., Asst. U. S. Attys., Chicago, Ill., of counsel), for appellee.

Before MAJOR, FINNEGAN and LINDLEY, Circuit Judges.

MAJOR, Circuit Judge.

This case had its origin in a three-count indictment returned against the defendant, Roy Pinna, and one Frank P. Coduto. Count 1 charged the purchase of 755 grains of heroin in violation of 26 U.S.C.A. § 2553(a); count 2, the sale of 755 grains of heroin to Harry V. Mattera in violation of 26 U.S. C.A. § 2554(a), and count 3, the receiving, concealing, buying and facilitating the transportation and concealment of 755 grains of heroin in violation of 21 U.S.C.A. § 174. The offense charged in each of the counts was alleged to have occurred on or about September 18, 1953. Prior to trial, the death of Coduto was suggested and the indictment dismissed as to him. The jury found the defendant not guilty on counts 1 and 2, and guilty on count 3. From a judgment predicated upon the finding on count 3, defendant appeals.

The principal issues argued for reversal are that the court erred (1) in its refusal to direct a verdict in favor of the defendant or a judgment notwithstanding the verdict or, in the alternative, a new trial; (2) in its denial of defendant's motion for mistrial; (3) in its denial of defendant's motion for a view by the jury of certain premises referred to by government's witnesses, and (4) in permitting the introduction of evidence of a previous conviction of the defendant offered for the purpose of impeachment.

We need not cite cases for the oft repeated rule that an appellate court must consider the evidence in the light most favorable to the government on the issue as to whether the case was properly submitted to the jury. With that rule in mind, we shall briefly refer to the facts and circumstances as developed by the government's proof. On the evening of September 18, 1953, at about 7:30 p. m., Coduto met Mattera, a Treasury enforcement officer, at the College Pharmacy, located at Van Buren and Paulina Streets, Chicago, Illinois. While the two occupied a rear booth, Mattera gave Coduto $800.00. About 9:15, Coduto, after making a telephone call, left the pharmacy. Mattera remained there for some 45 minutes, then went to Pixley and Ehlers Restaurant located on the northwest corner of Ogden Avenue and Madison Street. Durkin, another Treasury enforcement officer, observed that Coduto upon leaving the pharmacy entered his 1953 Buick and drove to the University Restaurant, 1826 West Harrison Street, where he met the defendant, Pinna. The two sat at the counter together, during which time Pinna made a telephone call. Shortly thereafter, Coduto drove off in his car, and some 5 minutes later the defendant left in a green 1947 Dodge coupe, bearing a license number disclosing that the car was registered in his name. Coduto's car was seen by Durkin parked at Van Buren and Paulina Streets at about 10 p. m. Durkin also saw the green Dodge coupe twice, being driven in the same neighborhood. About 11 p. m. Durkin saw Coduto park his car and enter Pixley and Ehlers Restaurant. Mattera was in the restaurant, saw Coduto enter and nodded to him. Coduto left the restaurant and entered the green Dodge. At that time he had no newspaper in his hand. Durkin then walked a short distance to the St. Nicholas Hotel, where he saw defendant's Dodge parked in front of the hotel, with Coduto sitting on the right side of the front seat. Durkin saw Coduto counting money on the seat of the car while facing the driver at his left, but was unable to identify the person sitting on the driver's side. He then stepped into the entrance of the hotel, about 15 feet from the curb, and from this point recognized defendant as the driver of the Dodge. Coduto got out of the Dodge and walked to the Pixley and Ehlers Restaurant with a newspaper under his arm. In the meantime, the Dodge coupe had been driven away. In the restaurant, Coduto met Mattera in accordance with a previous arrangement and handed Mattera a folded newspaper in which were two glassine bags containing a white substance later shown to be heroin. Thereupon, Coduto left Mattera and drove off in his car.

It is true, of course, that there is no direct proof that defendant received, concealed, bought or facilitated the transportation of unlawfully imported narcotics with knowledge that they were imported contrary to law, as charged in the third count of the indictment. The circumstances in proof, however, lead to the inescapable conclusion that the defendant and Coduto were operating together for the purpose of obtaining narcotics for Mattera and that as a result the heroin described in the indictment was delivered by the defendant to Coduto in the car of the former while parked in front of the St. Nicholas Hotel and that ...