United States v. Toscano, 76

• Citation: 166 F.2d 524
• Decision Date: 04 March 1948
• Docket Number: No. 76,Docket 20744.,76
• Parties: UNITED STATES v. TOSCANO.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

166 F.2d 524 (1948)

UNITED STATES v. TOSCANO.

No. 76, Docket 20744.

Circuit Court of Appeals, Second Circuit.

March 4, 1948.

John R. Hawthorne, of New York City (John J. Dowling, of New York City, of counsel), for defendant-appellant.

J. Vincent Keogh, U. S. Atty., of New York City (Mario Pittoni, Asst. U. S. Atty., of Lynbrook, of counsel), for plaintiff-appellant.

Before L. HAND, AUGUSTUS N. HAND and FRANK, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The defendants Toscano and Casablanca were indicted on three counts under 21 U.S.C.A. § 174 and 26 U.S.C.A. Int.Rev. Code, § 2553, quoted in the margin.¹ Casablanca pleaded guilty and Toscano not guilty.

Count One alleged that on or about July 31, 1946, Casablanca and Toscano did fraudulently and knowingly import and bring into the United States, and did assist in so importing and bringing into the United States, a quantity of narcotics, to wit, approximately 2 ounces and 400 grains of heroin, contrary to 21 U.S.C.A. § 174.

Count Two alleged that on or about the foregoing date, in the vicinity of LaGuardia Airport, Casablanca and Toscano did knowingly possess, conceal and facilitate the transportation and concealment of the heroin after the same had been imported into the United States knowing that it had been illegally imported, contrary to 21 U.S. C.A. § 174.

Count Three alleged that on or about such date, in the vicinity of LaGuardia Airport, Casablanca and Toscano did unlawfully have in their possession a quantity of narcotics, to wit, 2400 tablets of morphine sulphate in original stamped packages, without having registered and paid the required taxes, contrary to 26 U.S.C.A. Int.Rev.Code, § 2553. It was conceded on the trial that Toscano did not have a registration for the handling of narcotics and did not pay any taxes with respect thereto, as required by 26 U.S.C.A. Int.Rev.Code, §§ 3221 and 3220. The concession was made with the understanding that it did not involve any admission as to the possession of any narcotics by Toscano.

Toscano was found guilty by a jury on all three counts and has appealed from the sentence which was imposed by the trial judge after the rendition of the verdict.

Ryan, a Treasury Agent in the Narcotic Bureau, testified in substance to the following: At about 9:30 P. M. on July 30, 1946, he went by automobile to the vicinity of the building where Toscano occupied an apartment and parked his car on the opposite side of the street at a point where he was able to observe the entrance. Some time shortly before midnight he saw a car drive up to the vicinity of these premises and saw Toscano, Casablanca, Mrs. Toscano and her daughter, get out of the car. Toscano was carrying his daughter on his shoulder as though she were asleep. Casablanca had nothing in his hands. The four persons then entered the building and Ryan saw the lights go on and the three adults moving about in the living-room of the apartment of the Toscanos in the front section of the second floor.

At about 1:30 A. M. Ryan saw Toscano conversing with his wife for about five minutes and later saw him come out of the building with Casablanca and enter Toscano's car. Just before Casablanca entered the automobile Ryan saw him carrying a brown wrapped package, tied with a white string, approximately 12 inches long, 10 inches wide and 3 inches deep. He testified that Toscano was not carrying anything but was driving the car, with Casablanca sitting next to him. The agent followed Toscano's car until it reached LaGuardia Airport where it was parked to the right and across the driveway from the Administration Building. Ryan parked his car closer to that building and saw the defendants get out of their car and pass within 6 or 8 feet of him. Casablanca was still carrying the package described above. As they went into the Administration Building Ryan followed them and saw Casablanca enter waiting-room 7 and 8; as he followed Casablanca he saw Toscano also entering this waiting-room and talking to Casablanca. As Toscano and Casablanca seemed to Ryan to be about to leave the room, Ryan identified himself as a federal officer and asked Casablanca, who was still holding the brown package, what he had in it. He replied: "I don't know what is in the package. I just found it over on the chair there." The agent then turned to Toscano and said: "What are you doing here?" He replied: "I just stopped in for a cup of coffee. I don't know what this is all about." Ryan then asked Casablanca to open the package. The latter made a few ineffectual tugs at the string and then said: "I can't open this package. If you want to see what is in it, you will have to open it up." Ryan opened one end and drew forth an envelope containing heroin. He then arrested both defendants for violation of the narcotic laws and lodged them in detention headquarters. At this time he asked Toscano if he had any further narcotics in his home and Toscano replied that he had not and that Ryan could search there any time that he wished. Thereafter Ryan went to the Toscano apartment and, with the permission of Mrs. Toscano, searched it but found no narcotics.

While there was testimony by Toscano and his wife tending to contradict the inference that Toscano had possession of the narcotics, there was sufficient proof that he had the package in his apartment prior to the arrival of Casablanca and before going to the airport to show a violation of the narcotic statutes and justify the verdict. The weight of the evidence and the conflicting inferences which might be drawn from the testimony were...