United States v. Rossi, 141

• Decision Date: 18 February 1955
• Docket Number: Docket 23097.,No. 141,141
• Citation: 219 F.2d 612
• Parties: UNITED STATES of America, Appellee, v. Ugo ROSSI, Defendant-Appellant; Jean Laget, Henry Sauzet, Andrew Alberti and John Doe, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

219 F.2d 612 (1955)

UNITED STATES of America, Appellee, v. Ugo ROSSI, Defendant-Appellant; Jean Laget, Henry Sauzet, Andrew Alberti and John Doe, Defendants.

No. 141, Docket 23097.

United States Court of Appeals, Second Circuit.

Argued January 6, 1955.

Decided February 18, 1955.

Charles J. Margiotti, Pittsburgh, Pa., Benjamin Kronenberg and Lionel Golub, New York City, for defendant-appellant.

J. Edward Lumbard, U. S. Atty. for the Southern Dist. of N. Y., New York City (Lawrence U. Costiglio and George H. Bailey, New York City, of counsel), for appellee.

Before SWAN and MEDINA, Circuit Judges, and DIMOCK, District Judge.

MEDINA, Circuit Judge.

Defendant Ugo Rossi appeals claiming that the evidence is insufficient to support his conviction of conspiracy in connection with the transportation and sale of narcotics, and of wilful participation in a particular transaction which occurred in the City of New York on April 23, 1953. Others errors are assigned which we shall discuss to the extent deemed necessary.

As a result of many years of patient preparation a number of government narcotics agents finally got on the trail of some large operators, from whom a number of substantial purchases were made by the government agents. On April 23, 1953, the defendant Jean Laget, who subsequently pleaded guilty and has been sentenced to ten years imprisonment by the judge who presided over this trial, was in his automobile with one of the government agents, who was about to make another purchase consisting of one kilo of heroin for $6,500. Laget, proceeding by a circuitous route, arrived at Ninth Avenue and 15th Street, he then circled the block and again approached Ninth Avenue and 15th Street. He was evidently waiting for the arrival at this intersection of the person from whom he was to take delivery of the heroin, and presently he said, "There he is now," as a green DeSoto car bearing license number QC5689, whose sole occupant was the driver, pulled up near a gasoline station on the west side of Ninth Avenue between 14th and 15th Streets. Laget parked his car, went over to the DeSoto, was seen to open the door, lean in and to return to his car with the package containing the heroin. He then delivered the package to the government agent, received the $6,500 and was promptly taken into custody.

The government produced a number of witnesses, each of whom added his bit to the over-all mass of circumstantial evidence, which the government claims justified a finding by the jury that the man driving the DeSoto was Rossi and that Rossi had delivered the package of heroin to Laget when he leaned in through the door of the car. There were a number of government agents in the immediate vicinity and the identification of Rossi was quite sufficient to support the verdict. While no one had searched Laget before he went over to the DeSoto car, he had been with the supposed purchaser for some little time and could not readily have concealed a package such as the one later delivered, which contained a kilo of heroin and was 16 or 17 inches long and 2 or 3 inches thick. Moreover, Rossi had been seen with Laget prior to this occasion and at the very residence of Rossi, 128 St. Marks Place, where, an hour or less after the incident above described, Rossi was found in front of the house sitting in the same automobile, bearing the same license number. The arguments advanced before us on this appeal do not touch the sufficiency of the proofs but only the weight to be given to the various conflicting factors by the triers of the facts. The courts have held again and again in the narcotics cases that it is not necessary for the government to produce a witness who saw the package containing narcotics handed over. See United States v. Pisano, 7 Cir., 1951, 193 F.2d 355, 31 A.L.R.2d 409; United States v. Parker, 2 Cir., 1954, 217 F.2d 672. Otherwise it would never be possible to convict those who participate in this despicable business, each of whom is continually on the alert against the possibility of detection and apprehension. Here the evidence far exceeded the minimum required by the application of the rule of circumstantial evidence and the instructions of the trial court on the subject were if anything too favorable to defendant,¹ whose defense was alibi.

The contention is advanced that defendant was prejudiced by cross-examination which revealed perjurious statements in his applications for an immigration visa and for naturalization and also by receiving in evidence admittedly accurate translations of certified copies of records of convictions of various crimes in Italy. As to the records of prior convictions, it is asserted that they are too remote to have any substantial relevancy to the issue of defendant's credibility as a witness in his own defense, and that defendant's denials that the records could have any reference to him was sufficient to exclude them, in the absence of some further identification by way of finger prints, photographs or the like. The trial court left the question of identification to the jury with an instruction that they were not to consider this evidence as bearing on defendant's credibility unless and until they first were convinced that the records referred to defendant. A scrutiny of the record discloses that these claims are wholly without merit.

At the outset of defendant's direct examination his counsel, after bringing out the fact that defendant was born in Palermo, Sicily, proceeded to question him at some length concerning his conviction "of some offense or crime in Italy." This, defendant, with some gusto, described as a conviction in 1926 for "a conspiracy against the fascist regime," and he stated that he was in prison for five years, after which he was taken to the island of "Lambdusa," from which he escaped and came to America. The implication was that he had never been convicted of any other crime and this he vigorously asserted without qualification in his later testimony. It is not clear what was the purpose of opening up this subject but we may assume that it was thought it would help him with the jury, because he said he opposed Mussolini and the fascists, or that he wished to anticipate some cross-examination as to the part of his life spent in jail.

The cross-examination brought out that defendant was born in Palermo on December 10, 1901, and that his father was Roberto and his mother Mathilde. Government counsel turned to the subject of defendant's application at Montreal, Canada, for an immigration visa. This elicited a barrage of objections on the ground that "we are not trying an immigration case here." But the document was received, defendant identified his signature, and it appeared that, despite his...