Before MEDINA, LUMBARD and WATERMAN, Circuit Judges.
The indictment in this case charged, in the first count, a conspiracy to traffic in narcotics between the two Campisi brothers, Charles and Thomas, Ugo Giampaoli, Aniello Santagata and others. The third count alleges a sale of heroin by the Campisis, Giampaoli and Santagata in Springfield Gardens, Long Island, New York, on April 20, 1955. Charles Campisi is a fugitive from justice and was not tried; Giampaoli and Santagata pleaded guilty to the conspiracy and other counts of the indictment and were duly sentenced. The jury found Thomas Campisi guilty of conspiracy and of the substantive offense as charged; he received a three-year sentence on Count One, and a five-year sentence on Count Three, to run consecutively; and he appeals.
Reversal of the judgment is sought because of the alleged insufficiency of the evidence to support a conviction on either count, and because of various allegedly erroneous rulings by the trial judge, which are said to be so prejudicial as to have deprived appellant of a fair trial. It is also claimed that appellant has been subjected to double jeopardy because a sale of heroin by him in Newark, New Jersey, on July 19, 1955, was one of the overt acts enumerated in the conspiracy count, and evidence thereof was received, despite the fact that appellant had already been convicted of that specific substantive offense in the United States District Court for the District of New Jersey, and given a suspended sentence, sub nom. Gaspero Campisi.
The principal witness for the prosecution was Anthony Zirilli, a Government Narcotics Agent, who, in cooperation with a Special Agent, Dick Montana, often referred to in the testimony as Al, made his initial contact with Giampaoli on March 13, 1955. Giampaoli was the chef at the Bella Roma Restaurant in Hempstead, Long Island, and he lived in a two-story building, with a tenant upstairs, at 143-43 Springfield Boulevard, Springfield Gardens, in Queens. When Zirilli ascertained that Giampaoli had some connection with the traffic in narcotics, he and the other Narcotics Agents working with him embarked upon the undertaking of proceeding on a long range basis in the hope of uncovering the entire group with which Giampaoli was associated, and particularly "the source" from which Giampaoli obtained his supplies of narcotics. As we shall see, "the source" turned out to be the appellant, and his brother Charles Campisi, in Newark, New Jersey.
Posing as a large operator with many customers, Zirilli told Giampaoli at his home in Springfield Gardens on April 16, 1955 that he would soon be ready to make a substantial purchase of heroin and wanted to know how much Giampaoli could procure and what his source of supply would charge for the merchandise. Giampaoli said he would find out; and the following day Zirilli was informed that Giampaoli "could get any amount of heroin," that the quality would be approximately 80% pure and the cost $9500 for a full kilogram and from $2800 to $3000 for a quarter kilogram. It was arranged that Giampaoli would procure a sample and this was delivered to Zirilli in two cellophane cigarette wrappers on April 18. Some dickering over the quality ensued, Zirilli heard some conversation on the subject by Giampaoli over the telephone, and he finally said he would take a quarter kilogram for $2300, after Giampaoli said "his man" would not take any less than $2000 and he had to make $300 profit for himself.
We now approach the evidence of the sale made on April 20, 1955, as alleged in Count Three. In order to justify the submission of the substantive offense to the jury it was necessary for the prosecution to prove that appellant associated himself with the venture in order to establish that he aided and abetted the commission of the offense charged. United States v. Peoni, 2 Cir., 100 F.2d 401.
The actual delivery of this large quantity of heroin was made to Zirilli by Giampaoli a little after 11 o'clock at night on April 20, 1955 at Giampaoli's home. After testifying to the preliminaries as above described, all Zirilli could add of his own personal knowledge was that, after the payment of the money Giampaoli could not at once say where and when the heroin would be delivered, that pursuant to arrangement Giampaoli and Zirilli met at the race track, where Zirilli was told to come to Giampaoli's house for the heroin that evening. In other words, Giampaoli did not have the heroin in his possession and had to go somewhere to get it.
In the meantime, a number of other Narcotics Agents saw Santagata drive up to Giampaoli's home, while Zirilli was still at the race track; Giampaoli got in and Santagata drove his Lincoln, with New Jersey license plate PG11N, out to Kearney, New Jersey, where the Campisi brothers in a Chrysler car met them. Appellant got in the Lincoln and talked a while with Santagata and Giampaoli and then he got back in the Chrysler; there was much going up and down streets and around corners; then appellant got back in the Lincoln, which proceeded to a building at 458 South 11th Street, Newark, which appellant, Giampaoli and Santagata entered. Shortly thereafter they came out, and Santagata drove Giampaoli back to Giampaoli's home in Springfield Gardens, where Giampaoli, who did not have the heroin when he left Zirilli at the race track, pulled it out of his pocket and turned it over. From the testimony the jury was entitled to find that, from the time Santagata and Giampaoli left Springfield Gardens that afternoon until their return, they had made no other stops than above set forth nor had they met anyone other than the two Campisis.
The proof to sustain the conviction on the conspiracy count, much of which had considerable probative force in connection with the substantive charge, covered a wide range. And we shall proceed briefly to relate the facts in chronological sequence.
When the first quarter kilogram was delivered by Giampaoli on April 20, 1955, Zirilli did not know of the existence of Santagata, but he had already complained of the quality of the heroin in the sample and he threw out a few hints respecting the possibility of larger transactions, perhaps in Mexico on a joint basis. These Giampaoli evidently passed along to Santagata, as Zirilli intended.
On May 16, 1955, Zirilli told Giampaoli he would soon be ready to purchase some more heroin. On May 18 they met at Giampaoli's home and there was the usual telephoning. At first Giampaoli was going to deliver the narcotics at the Bella Roma Restaurant later that evening, but when Zirilli met him at the Bella Roma Restaurant he said he couldn't do it until the next day. On May 19 they met again at the Bella Roma Restaurant and Giampaoli said "There was no need for him to go to Newark since his man was going to have the heroin with him." Accordingly, at Giampaoli's instructions, Montana drove Zirilli and Giampaoli to Flatbush Extension opposite the Mona Lisa Bridal Shop in Brooklyn. They went in and there was Santagata to whom Giampaoli introduced Zirilli for the first time. There Santagata asked Giampaoli if Zirilli was the one who had been talking about a trip to Mexico, but the subject was put off and they went out in the parking lot where, in the view of agent O'Connor, a Government witness at the trial, Santagata reached into the glove compartment of his car and delivered to Zirilli a brown paper package which contained the second quarter kilogram of heroin.
It would have been possible to arrest Giampaoli and Santagata at once, but Zirilli and his superiors were after bigger game. The Campisis were implicated too, although their precise role was not yet completely established. But, on May 25, 1955, shortly after the purchase of the second quarter kilogram, in a conversation at Giampaoli's home Santagata told Zirilli that he and Giampaoli were getting the heroin from the Campisis in Newark.
The admission of this conversation, over objection, is one of the grounds urged for reversal. The question put to Zirilli called for a conversation with Santagata ...