United States v. Romero

Decision Date18 November 1957
Docket NumberDocket 24687.,No. 82,82
PartiesUNITED STATES of America, Appellee, v. Eloy Joseph ROMERO and Ralph John Visconti, Defendants-Appellants.
CourtU.S. Court of Appeals — Second Circuit

Robert Mitchell, New York City, for defendants-appellants.

Paul W. Williams, U.S. Atty., Southern District of New York, New York City (Robert Kirtland, Asst. U. S. Atty., New York City, of counsel on the brief), for appellee.

Before CLARK, Circuit Judge, LUMBARD and MOORE, Circuit Judges.

LUMBARD, Circuit Judge.

Appellants seek reversal of a conviction for the sale of narcotics and for conspiracy to violate the federal narcotic laws. They were tried before a jury in the United States District Court for the Southern District of New York, and each was sentenced by Judge Levet to 8 years imprisonment on Count 1 and 5 years on Count 4, to be served concurrently. Count 3, which the Court dismissed at the end of the government's case, by charging that the defendants, being over 18 years of age, had sold heroin to Matthew Ottomano, then under 18, subjected the defendants to a possible death sentence in the discretion of the jury if they were convicted. Narcotic Control Act of 1956, 21 U.S.C.A. § 176b.

Romero and Visconti assign as error the trial judge's questioning of veniremen as to their scruples regarding capital punishment, the court's rejection of a motion to suppress certain evidence claimed to be the product of an illegal search and seizure, and the government's calling a co-conspirator to testify when it allegedly knew he would refuse to testify.

There was ample evidence to support the convictions. On the night of December 3, 1956, Agent Palma of the Bureau of Narcotics met Matthew Ottomano and Anthony Boschetti, both of whom he had met on prior occasions, at about 7:20 P.M. near 117th Street and First Avenue in New York City. After a brief conversation, Ottomano and Boschetti walked west on 117th Street toward Second Avenue, Palma remaining near 326 East 117th Street. Ottomano and Boschetti then proceeded north on Second Avenue for one black and then turned west into 118th Street. During this time they were observed by Agent Coyne who was walking on the opposite side of the street. Upon entering 118th Street, Coyne ran up the stairs of 204 East 118th Street to the roof which was four floors above the street.

Boschetti lingered by the stoop of 209 East 118th Street while Ottomano entered a candy store at No. 205, just a few feet away and almost directly across the street from Coyne's observation post. Lights on 118th Street and on Third Avenue and in the candy store which had a glass front permitted Coyne to observe from the roof what happened below. Ottomano met appellant Romero in the front of the store and immediately thereafter appellant Visconti came out of the No. 205 apartment building and entered the candy store. The three were seen to engage in conversation, after which Visconti left the store and reentered the apartment building.

Ottomano and Romero then emerged from the candy store and Romero walked over to Boschetti who was on the stoop at No. 209 and chased him away. Boschetti then proceeded east on 118th Street to the middle of the block, where he stopped to wait. Meanwhile Ottomano walked back and forth on the street and Romero went in and out of the store two or three times and looked up and down the street. At about 8:10 P.M., when Visconti reappeared on the stoop of the 205 building, Ottomano went over and Visconti handed him a brown paper bag. Ottomano then took the bag and headed east on 118th Street to where Boschetti was waiting. He then gave the bag to Boschetti and they both walked around the block to meet Palma. In the hallway of 326 East 117th Street Ottomano took the bag from Boschetti and showed Palma that inside it were glassine envelopes containing a white powder. Boschetti then handed the bag containing the glassine envelopes to Palma who gave to Ottomano $240 in bills of which Palma had previously recorded the serial numbers. Ottomano then returned to the candy store at 205 East 118th Street where he met Romero and Visconti at about 8:20 P.M., and all three retired to the rear of the store.

Shortly before 9:00 P.M. Palma joined Coyne and Agent Moynihan at a government automobile near 114th Street and First Avenue. Palma gave the six glassine envelopes to Coyne who then and there made a field test of the white powder by dropping a sample from each of the envelopes into a "Marquis Reagent" which thereupon turned purple. The test thus disclosed that the powder was a derivative of opium.1

Believing that the federal narcotic laws had been violated, Agents Palma, Coyne and Moynihan together with Agent Costa, who had been assisting them, then proceeded to arrest the four men implicated in the sale of the narcotics. At about 9:40 P.M. Moynihan arrested Ottomano and Boschetti in the hallway of 326 East 117th Street. On Ottomano's person the agents found five $10 bills and on Boschetti a $5 bill, which bills were part of the $240 in currency which Palma had earlier listed before giving it to Ottomano.

At about 10:00 P.M. Costa and Coyne left the roof of 204 East 118th Street to which they had returned at about 9:20 P.M. after the field test. They crossed the street to the candy store and Costa arrested Romero just outside the candy store; Coyne entered the store and arrested Visconti. A search of Romero disclosed that he was carrying $125 in listed bills which Palma had used to pay Ottomano for the heroin. The agents found $30 more of this money on Visconti. Later Romero stated his age as 23 and Visconti gave his as 26. Boschetti testified that he was 17 on December 3, 1956, and a birth certificate showed that Ottomano was then 16.

At the end of the government's case Judge Levet dismissed Count 3, holding that there was insufficient evidence to show that Romero and Visconti knew that Ottomano and Boschetti were under 18 years of age on December 3, 1956.

Both appellants Romero and Visconti took the stand, denied any dealings in narcotics and claimed that they had received $155 in cash from Ottomano in payment of gambling debts incurred by Ottomano and Boschetti that afternoon in a dice game. That the jury discounted their explanation and found them guilty on Counts 1 and 4, 21 U.S.C.A. §§ 173 and 174; 26 U.S.C.A. § 7237; 18 U.S. C.A. § 371, is not surprising.2

There is no merit to the appellants' claim of error arising from the questioning of the veniremen regarding their possible scruples as to capital punishment. Count 3 of the indictment, alleging the sale of heroin by one over 18 to one under 18, charged an offense punishable by fine and imprisonment, except that the jury in its discretion could have directed the death penalty had it convicted on this count. 21 U.S.C.A. § 176b, Narcotic Control Act of July 1956. The record amply demonstrates that the grand jury was warranted in including Count 3 in the indictment and that the government was...

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