United States v. Sarno

• Decision Date: 06 March 1972
• Docket Number: No. 71-1226.,71-1226.
• Citation: 456 F.2d 875
• Parties: UNITED STATES of America, Appellee, v. Alfred SARNO, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

456 F.2d 875 (1972)

UNITED STATES of America, Appellee, v. Alfred SARNO, Defendant-Appellant.

No. 71-1226.

United States Court of Appeals, First Circuit.

Heard January 4, 1972.

Decided March 6, 1972.

Fred Warren Bennett, Washington, D. C., with whom Paul William Kaufman, Marshfield, was on brief, for defendant-appellant.

Robert B. Patterson, Atty., Dept. of Justice, with whom Roger A. Pauly, Atty., Dept. of Justice, James N. Gabriel, U. S. Atty., and Albert Cullen, Sp. Atty., Dept. of Justice, were on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

The defendant was convicted on both counts of an indictment charging conspiracy to import narcotic drugs (herein the conspiracy count) and inducing and procuring another to import narcotic drugs (herein the substantive count).¹ He appeals, relying principally on allegations of plain error.

At trial the defendant's three indicted co-conspirators, D'Ambrosio, Taft, and Ciardi, all testified for the government. D'Ambrosio testified that he, Taft, and Ciardi conspired to smuggle drugs in October 1967 and that pursuant to that conspiracy he and Taft bought about one pound of heroin in Tijuana, Mexico, which they smuggled into the United States. When they encountered difficulty marketing this batch, Ciardi approached the defendant in an effort to find a new buyer. The defendant wanted to see what kind of people he would be dealing with so a meeting was arranged, and in mid-February 1968 the defendant and the three co-conspirators gathered in D'Ambrosio's automobile in Revere, Massachusetts. At this meeting the defendant agreed to purchase the remainder of the heroin which had already been brought in, and on learning that D'Ambrosio and Taft planned to return to Tijuana for more, he said he would buy all the good quality heroin they could supply. Shortly thereafter, the defendant paid about $5,000 for the first batch of heroin. The money was wired to D'Ambrosio who at the time was in Phoenix, Arizona, en route to Tijuana with Taft, who used these funds to purchase more heroin. Taft, however, was apprehended attempting to smuggle this second batch across the border. D'Ambrosio testified that when he discovered that Taft had been caught, he called Ciardi for money to hire an attorney and for expenses and was told to call back. When he did so, he learned that the defendant had returned the original heroin saying that it was no good and that he wanted his money back. D'Ambrosio returned to Boston where he and Ciardi worked out a plan to repay the defendant.

The indictment charged two overt acts in furtherance of the conspiracy: (1) the February meeting in Revere and (2) the second Mexican purchase by D'Ambrosio and Taft. The case was submitted to the jury with the instruction that they could convict on the conspiracy count if they found either overt act. Defendant correctly objects that the agreement by which he entered the conspiracy cannot also be the overt act. There was no evidence of an agreement by the defendant prior to the Revere meeting. Thus while the agreement and the meeting were not necessarily co-extensive, since much of the meeting did involve formation of the conspiracy, we are presented with the possibility that the jury could have believed that the agreement alone would satisfy the overt act requirement.² This possibility was lessened, however, by the court's admonition, "In law, a mere agreement, without more, is not a violation of this statute. The government must prove beyond a reasonable doubt the agreement plus the doing of some act . . . to carry out the agreement." No objection was raised either to the submission of overt act one or to the instructions on overt acts generally. Had Rule 30, Fed.R.Crim.P. been complied with, the court could easily have resolved any ambiguity caused by the overlap of the meeting and the agreement or could have withdrawn overt act one entirely. Both the uncontroverted evidence on overt act two and the guilty verdict on the substantive count indicate that the jury found overt acts other than the agreement. We do not imply that a finding of guilt on a substantive count will generally supply the overt act necessary to sustain a conspiracy conviction. In this case, however, the jury was instructed that to convict on the substantive count they must find "some conduct by the defendant of an affirmative character in furtherance of a common criminal design or purpose . . .." Since the substantive crime was the object of the conspiracy, the jury was in essence required to find that the defendant committed an overt act in furtherance of the scheme to smuggle drugs in order to return a guilty verdict on the substantive count. Any possible confusion on overt act one was therefore vitiated. Cf. United States v. Driscoll, supra note 2.

The defendant would also have us notice as erroneous the admission of various hearsay declarations made by the co-conspirators prior to his entry into the conspiracy and after its termination.³ The evidence here established one continuous conspiracy formed originally by D'Ambrosio, Taft, and Ciardi which was subsequently joined by the defendant. He is, therefore, deemed to have adopted the prior acts and declarations of his co-conspirators, and their declarations in furtherance of the conspiracy are admissible against him under the co-conspirator exception to the hearsay rule. United States v. United States Gypsum Co., 333 U.S. 364, 393, 68 S.Ct. 525, 92 L.Ed. 746 (1948); United States v. Hickey, 360 F.2d 127, 140 (7th Cir.), cert. denied, 385 U.S. 928, 87 S.Ct. 284, 17 L.Ed.2d 210 (1966); United States v. Bletterman, 279 F.2d 320, 322 (2d Cir. 1960). Furthermore, the jury was adequately instructed not to consider against the defendant...