United States v. Sansone

• Decision Date: 29 March 1956
• Docket Number: No. 224,Docket 23572.,224
• Parties: UNITED STATES of America, Appellee, v. Carmelo SANSONE, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

231 F.2d 887 (1956)

UNITED STATES of America, Appellee, v. Carmelo SANSONE, Appellant.

No. 224, Docket 23572.

United States Court of Appeals Second Circuit.

Argued January 18-19, 1956.

Decided March 29, 1956.

Writ of Certiorari Denied June 11, 1956.

COPYRIGHT MATERIAL OMITTED

Paul W. Williams, U. S. Atty., S.D.N. Y., New York City (Clement J. Hallinan, Jr., Asst. U. S. Atty., New York City, of counsel), for appellee.

Florence M. Kelley, New York City (Haliburton Fales, 2d, New York City, of counsel), for appellant.

Before MEDINA, HINCKS and WATERMAN, Circuit Judges.

Writ of Certiorari Denied June 11, 1956. See 76 S.Ct. 1055.

WATERMAN, Circuit Judge.

The appellant was found guilty after trial by jury of violating 18 U.S.C. § 371, in that he conspired with others to import and sell narcotics. He appeals from the judgment of conviction and sentence of one year, relying for reversal on alleged errors at the trial.

The Government's case rested on the testimony of an informer, Pierre LaFitte, corroborated at several points by the testimony of Government narcotics agents. The conspiracy disclosed was substantially as follows: In April, 1951, LaFitte became acquainted with a man named Orsini. At that time both men were being detained on Ellis Island by the Immigration authorities. Orsini told LaFitte that he was a leader in a group which had been dealing in narcotics both in this country and abroad, and proposed that LaFitte join the group. LaFitte ostensibly consented, but reported the conversation to a narcotics agent, Giuliani. Thereafter, unknown to Orsini, he acted under Giuliani's instructions.

In May, 1951, Giuliani obtained the release of LaFitte from Ellis Island. LaFitte first contacted one Randazzo, whom Orsini had named as one of the conspirators, and attempted to purchase narcotics. Randazzo was unable or unwilling to supply LaFitte at this time, but revealed details of the conspiracy to LaFitte and expressed surprise that he had not yet dealt with Sansone, the appellant. Having become dissatisfied with the progress he was making with Randazzo, LaFitte visited Orsini at Ellis Island in June. Orsini then put LaFitte in touch with one Shillitani, named by Orsini as another member of the conspiracy. After receiving assurance through his wife from Orsini that LaFitte could be trusted, Shillitani related details of the membership and operations of the conspiracy. On July 3, 1951, LaFitte purchased about 8 ounces of heroin from Shillitani.

In July, 1951, LaFitte again visited Orsini at Ellis Island. Orsini promised to put LaFitte in touch with the French members of the conspiracy. LaFitte then met appellant, who apparently did not believe that Orsini had sent him. In order to allay appellant's suspicions, Orsini gave LaFitte a letter of introduction to give to appellant. Appellant then accepted LaFitte as a safe man with whom to deal and promised to arrange for the sale of narcotics to him. During July appellant and LaFitte met on numerous occasions, and appellant revealed to LaFitte many details of the conspiracy. Before any sale of narcotics by appellant to LaFitte was consummated, however, appellant and other members of the conspiracy were arrested.

1. Appellant objects to the admission of Giuliani's testimony of a conversation between LaFitte and appellant. This conversation occurred on July 9, 1951, and constituted one of the main items in the case against appellant. LaFitte and appellant had met at the Normandy Restaurant and had gone by car to Riverside Drive and 142nd Street, a rendezvous known to Giuliani. LaFitte was wearing a concealed transmitter, and agent Giuliani, stationed some two hundred feet away, was equipped with a portable receiving set tuned to the same frequency. At the trial both LaFitte and Giuliani testified concerning the conversation, during which the appellant had made incriminating remarks. Appellant objects to the admission of Giuliani's testimony on the grounds that an improper foundation was laid because the Government failed to show that the transmitter-receiver unit was an effective means of communication by the use of which voices could be accurately recognized, and that the identification of appellant's voice by Giuliani, in any event, was possible only as a result of an illegal arrest of appellant for vagrancy by New York City police, an arrest caused by Giuliani.

We think that an adequate foundation was laid for the admission of Giuliani's testimony concerning the July 9 conversation. When a portable transmitting-and-receiving set, or other device, is used to overhear conversations, the initial qualification for admission of evidence so obtained involves two sets of interrelated problems: First, whether the device used is an effective means of communicating sound, and, second, the identification of the alleged speaker. We think that the general public, in this day of car telephones, home recording instruments, and amateur transmitting-and-receiving equipment, is sufficiently aware of the effectiveness and the weaknesses of these mechanical devices so that the party advancing the evidence need not lay an elaborate foundation of expert testimony in order for such evidence to be admitted. Such evidence, however, should be treated with considerably greater caution than evidence arising from telephone conversations, due to the much greater familiarity of the general public with the characteristics and potentialities of the telephone. See the discussion in VII Wigmore on Evidence, 3d ed., 1940, §§ 2155-2157. In this case, Giuliani's testimony that he visually recognized LaFitte and appellant carrying on the conversation that he overheard on the receiving device bolstered the admission of his testimony concerning the conversation. Giuliani testified that he tested the mechanism on the same day and found it operative; that he saw appellant and LaFitte enter a car earlier in the day; that he saw appellant and LaFitte disembark from the same auto and converse; and that he recognized appellant's voice from a prior conversation with him. Under these circumstances, the evidence was admissible. The circumstances of transmission, the distance of Giuliani from the conversation, and other similar considerations, went to the weight of the evidence rather than to its admissibility. See, generally, N. L. R. B. v. Carpet, L. & R. T. L., 10 Cir., 1954, 213 F.2d 49; United States v. Bucur, 7 Cir., 1952, 194 F.2d 297; Andrews v. United States, 10 Cir., 1935, 78 F.2d 274, 105 A.L.R. 322; United States v. Easterday, 2 Cir., 1932, 57 F.2d 165, certiorari denied 286 U.S. 564, 52 S.Ct. 646, 76 L.Ed. 1297; Kilpatrick v. Kilpatrick, 1937, 123 Conn. 218, 193 A. 765.

Appellant objects to the admission of Giuliani's testimony on a second ground, viz., that the identification of appellant's voice by Giuliani was the fruit of an illegal arrest procured by Giuliani. Giuliani had testified that he had talked with appellant on previous occasions and hence was in a position to recognize his voice. But on cross-examination Giuliani testified that except for April 27 and July 9 he had only briefly seen appellant "just on the street." Thus the only opportunity for Giuliani to hear him speak prior to July 9 was on April 27, the day on which appellant had been arrested for vagrancy by the New York City police on a charge later dismissed. Giuliani admitted that he had "something to do with causing that arrest." Thus it appears that a federal officer without power to arrest for vagrancy had caused the New York police to do what he couldn't. In the face of such evidence, we would incline to think the burden was on the Government to prove that Giuliani's conversation with appellant on April 27 was not the fruit of Giuliani's illegal action in causing appellant's arrest. United States v. Coplon, 2 Cir., 1950, 185 F.2d 629, 636, 28 A.L.R. 2d 1041, certiorari denied 342 U.S. 920, 72 S.Ct. 362, 96 L.Ed. 688.

It is unnecessary for us to decide, however, whether we would reverse for the reception of Giuliani's testimony that he recognized appellant's voice on July 9, and whether the inadmissibility of that item of evidence would render his testimony as to the entire conversation incompetent, for appellant failed to call this objection to the attention of the trial court. Appellant objected to the admission of Giuliani's testimony on the specific grounds of improper foundation and invasion of the right of privacy, but did not raise the objection he is now pressing — an objection which relied on the proof and interpretation of collateral matters (i. e., Giuliani's arrest by the New York City police). While we may in our discretion notice errors not brought to the attention of the trial court, Rule 52(b), Federal Rules of Criminal Procedure, 18 U.S.C., this discretion will not be exercised to reverse a conviction based on ample evidence unless the errors have seriously prejudiced the defendant or affected the fairness, integrity, or public reputation of judicial proceedings. See United States v. Atkinson, 1936, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555; United States v. Jones, 7 Cir., 1953, 204 F.2d 745, certiorari denied 346 U.S. 854, 74 S.Ct. 67, 98 L.Ed. 368, rehearing denied 346 U.S. 905, 74 S.Ct. 216, 98 L.Ed. 404. Appellant was not substantially prejudiced by Giuliani's testimony that he recognized appellant's voice, since Giuliani also testified that he was well qualified to recognize and did recognize LaFitte's voice, and that he visually identified appellant as the person holding the conversation with LaFitte. Under the circumstances, we conclude that the point is not available to the appellant on appeal....