United States v. Tramaglino, No. 259

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: SWAN, , and AUGUSTUS N. HAND and FRANK, Circuit
• Citation: 197 F.2d 928
• Parties: UNITED STATES v. TRAMAGLINO et al.
• Docket Number: No. 259,Docket 22364.
• Decision Date: 30 June 1952

197 F.2d 928 (1952)

UNITED STATES
v.
TRAMAGLINO et al.

No. 259, Docket 22364.

United States Court of Appeals, Second Circuit.

Argued May 15, 1952.

Decided June 30, 1952.

197 F.2d 929

Myles J. Lane, New York City (Thomas F. Burchill, Jr., and Harold J. Raby, New York City, of counsel), for United States.

Nicholas P. Iannuzzi and Ralph J. Barra, New York City (Peter L. F. Sabbatino, New York City, of counsel), for Tramaglino.

Samuel Segal, New York City, for Rosario.

Before SWAN, Chief Judge, and AUGUSTUS N. HAND and FRANK, Circuit Judges.

FRANK, Circuit Judge.

1. Both appellants contend that no single conspiracy was proved between them and other defendants (not appealing here)

197 F.2d 930

who were named as co-conspirators in the indictments and were tried together with these appellants in the district court. The appellants made timely motions below to dismiss the conspiracy count. As a basis for discussing their argument, we will summarize the evidence elicited at trial from which the jury might have found them guilty of conspiring with the other defendants

Beginning in May 1950, Rosario, through the medium of one Mejia, made several sales of marihuana to Perez who, together with some of the other defendants tried below, was a member of a "syndicate" to buy and resell marihuana at a profit. Rosario, according to the testimony of Perez, was told that the marihuana was being bought for a "corporation" which included Alvarez, Zayas and others, and that Perez himself was "making nothing on the deal." From this testimony the jury might reasonably have inferred that Rosario knew that the marihuana he sold was intended for resale by the "corporation." In fact, Rosario himself, a few months later, bought heroin from Alvarez, a member of the same syndicate to which Rosario had sold the marihuana. When Rosario's supply of marihuana ran out, and he went to Texas for more, the syndicate sought a new supplier. Alvarez suggested Tramaglino, some of whose marihuana he had on hand. Several sales were made by Tramaglino to Alvarez through one Rodriquez. Tramaglino was informed by Alvarez that the marihuana was for resale. He also knew that Zayas, and his paramour, Ida Batista, were involved in the sales since Zayas' money was openly used to pay Tramaglino.

Here then we have evidence of several sales, at different periods, by Rosario and Tramaglino, of marihuana to the same group of buyers with knowledge on the part of the two suppliers that several conspirators were involved in the purchases and that the purchases were for resale. This was enough, we think, to show that each appellant, as supplier, participated in, and acted to further the ends of, the conspiracy. It did not matter that neither had dealings with one another; each performed the same role at successive stages for the same ends. The overall conspiracy was the plan conceived by the intermediary group — Alvarez, Zayas, and their fellows — to buy and resell marihuana at a profit. Both Rosario and Tramaglino knew and participated in this plan by furnishing the essential ingredient — the marihuana. In United States v. Bruno, 2 Cir., 105 F.2d 921, 922, a case quite similar to this one, we said, in affirming a conviction of smugglers, middlemen, and retailers, for a single conspiracy to import and distribute narcotics illegally: "* * * the smugglers knew that the middlemen must sell to retailers, and the retailers knew that the middlemen must buy of importers of one sort or another. Thus the conspirators, at one end of the chain knew that the unlawful business would not, and could not, stop with their buyers; and those at the other end knew that it had not begun with their sellers. That being true, a jury might have found that all the accused were embarked upon a venture, in all parts of which each was a participant, and an abettor in the sense that the success of that part with which he was immediately concerned, was dependent upon the success of the whole." In later cases, we have not hesitated to hold as a conspirator a steady supplier in large amounts of narcotics or other contraband to a group which, to the knowledge of the supplier, intended to use the object illegally. United States v. Koch, 2 Cir., 113 F.2d 982; United States v. Todaro, 2 Cir., 145 F.2d 977; cf. United States v. De Vasto, 2 Cir., 52 F.2d 26, 30, 78 A.L.R. 336.

The defendants invoke our decision in United States v. Falcone, 2 Cir., 109 F.2d 579, for the proposition that a mere supplier, even one who knows of the illegal purpose of his purchaser, cannot be held as a co-conspirator. We have limited that case to its strict facts — the case of a supplier of goods, innocent in themselves, who does nothing but sell those goods to a purchaser who, to the supplier's knowledge, intends to and does use them in the furtherance of an illegal conspiracy. The suppliers here did more than just sell. They aided and abetted the conspiracy by themselves making illegal sales; for their

197 F.2d 931

sales were not on the basis of the proper forms or pursuant to written orders of the type required by 26 U.S.C. § 2591(a) for marihuana transfers. As these sales were illegal and clandestine, each supplier, through them, became himself a...