United States v. Wright

• Decision Date: 12 December 1962
• Docket Number: No. 13572.,13572.
• Citation: 309 F.2d 735
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William WRIGHT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

309 F.2d 735 (1962)

UNITED STATES of America, Plaintiff-Appellee, v. William WRIGHT, Defendant-Appellant.

No. 13572.

United States Court of Appeals Seventh Circuit.

October 31, 1962.

Rehearing Denied December 12, 1962.

Myer H. Gladstone, Chicago, Ill., for appellant.

James P. O'Brien, U. S. Atty., Raymond F. Zvetina, Asst. U. S. Atty., Chicago, Ill., for appellee; John Peter Lulinski, Asst. U. S. Atty., of counsel.

Before DUFFY, KILEY and SWYGERT, Circuit Judges.

SWYGERT, Circuit Judge.

Defendant, William Wright, appeals from a judgment sentencing him to a term of imprisonment. He was convicted by a jury on three counts of an eleven count indictment charging violation of the Federal Narcotic Laws. Two of these three counts charged defendant and one Michael Carioscia with receiving, concealing, facilitating the transportation of and selling a quantity of heroin in violation of 21 U.S.C. § 174, and 26 U.S.C. § 4705(a). The third count charged a conspiracy to violate § 174, supra, by defendant and codefendants Carioscia, Armando Pennacchio, and Ben Pennacchio. Armando Pennacchio and Carioscia pleaded guilty. Ben Pennacchio was found not guilty by the jury.

Defendant contends that the evidence was not sufficient to support his conviction. Consideration of this contention requires a summary of the facts.

During the year 1960 defendant resided in Coytesville, New Jersey. Between February 17 and March 24, 1960 there were six long-distance telephone calls to defendant's wife's unlisted telephone in Coytesville from Armando Pennacchio's telephone in Chicago.

On March 16, Carioscia and Armando Pennacchio sold 120 grams of heroin to Federal Narcotics Agent Theisen. On March 31, defendant and Carioscia traveled from Chicago to New York under assumed names. On April 28, Carioscia sold 75 grams of heroin to Agent Theisen. The next day there was a telephone call from Armando Pennacchio's residence to defendant's residence in New Jersey.

On May 25, defendant registered at The Country Club Motel, Melrose Park, Illinois, under the assumed name "J. Harris." On May 28, Agent Theisen with Oscar Luna, a special employee of the Federal Bureau of Narcotics, talked with Carioscia at the bar of The North Avenue Steak House, Chicago. Theisen told Carioscia that he did not have the full price for a quarter kilogram of heroin and asked if he could get the heroin and pay later. Carioscia said he would have to talk to his "man" about it, and that "the man's right here." Theisen and Luna then left the Steak House, whereupon Carioscia entered the restaurant section of the establishment and talked to defendant. Wright later left with Carioscia in the latter's car and went to The Country Club Motel. About noon Carioscia telephoned Agent Theisen that he had talked to the "guy" right after Theisen and Luna left the night before and the arrangements were off. The following day there were calls from Wright's motel room to the residences of Carioscia and Benjamin Pennacchio. Defendant checked out of The Country Club Motel on June 2.

On June 6, Carioscia told Agent Theisen that he wasn't sure they had enough heroin on hand, and the following day Armando Pennacchio told Theisen they were temporarily "out" and would call when they got enough "to take care of the business." On June 13, defendant again registered at The Country Club Motel under the assumed name "J. Harris."

On June 16, Carioscia called Agent Theisen to make arrangements for another sale of heroin. Theisen told him that he had the money and was ready to do business. Carioscia said he would call between 8:30 and 9:00 p. m. At approximately 7:00 p. m. Carioscia left his residence in his Pontiac. At 8:00 p. m. this car was observed in the parking lot at The North Avenue Steak House and twenty minutes later defendant and Carioscia were seen seated together at the bar. Shortly thereafter, Wright left the Steak House, entered an Oldsmobile and was seen pulling out of the lot. He returned within an hour, walked up to Carioscia, handed him some keys, and said "Everything is O. K." Carioscia went to the telephone, returned and told Wright that the phone was busy. Carioscia telephoned again, and talked with Agent Theisen who had been awaiting his call. He told Theisen to go to The Lake Club in Melrose Park; Carioscia then left the Steak House. Although his Pontiac was still in the lot, Carioscia drove away in the Oldsmobile and later met Theisen at The Lake Club where he delivered 235 grams of heroin.

Meanwhile, at the Steak House defendant paced back and forth, glanced out the door, walked outside, returned, and finally entered the restaurant section. About 10:15 p. m. Carioscia returned, looked around the bar, walked to the restaurant section, stood, nodded his head, and entered the restaurant where he talked with defendant. Carioscia then left in his Pontiac. Two days later defendant checked out of The Country Club Motel.

On July 7, 14, and 15, there were long-distance telephone calls from Armando Pennacchio's residence to defendant's residence in New Jersey.

On July 26, Carioscia told Agent Theisen that he was not then in a position "to do business," but asked him to check back the first part of August. On August 4, there were three long-distance telephone calls from Carioscia's residence to defendant's residence. On August 6, there was a long-distance telephone call from Armando Pennacchio's residence to Wright's. On August 27, Armando Pennacchio told Theisen that Carioscia and "that other guy" had lost the "stash" and had practically destroyed him in the last several weeks, but that he could supply a "kilogram and a half." On August 29, Armando Pennacchio delivered 198 grams of heroin to Theisen and on September 6, 407 grams.

On September 12, a short time after his arrest, defendant expressed surprise to Agent Theisen at the degree of surveillance to which he had been subjected by the federal agents during the course of the government's investigation. He also registered an apparent complaint against one of his codefendants by saying, "He never did use his mind. * * * I told that guy to watch you. I told him then you were an agent." Defendant then asked Theisen, "How much stuff did they get Monsie (Armando Pennacchio) with?"

A review of the evidence convinces us that it is sufficient to warrant the jury's verdict of guilty on both the substantive and the conspiracy counts.

It is true that no one saw defendant handle any heroin. However, as was stated in United States v. Rossi, 219 F.2d 612, 614 (2nd Cir. 1955):

"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. * * * 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."

The jury was justified in inferring from the short trip by Wright in the Oldsmobile on June 16, followed by the calls to Agent Theisen by Carioscia, and then the taking of the Oldsmobile by Carioscia to The Lake Club to make the sale, that Wright had originally left to pick up the heroin, had hidden it in the Oldsmobile (and referred to this fact when he tossed the keys to Carioscia and said "Everything is O. K."), and that Carioscia took the Oldsmobile with the heroin...