Before Hand and Waterman, Circuit Judges, and Byers, District Judge.
On February 5, 1958 an indictment was filed in the Southern District of New York charging all of the appellants herein and three others with violations of 21 U.S.C.A. § 173*fn1 and § 174.*fn2 Count One of the five count indictment alleged that Peter Casella, James Santore, Emilio D'Aria and James Leo Massi sold 17 ounces, 161 grains of heroin on October 21, 1957. Count Two charged Peter Casella, Joseph Paul Lo Piccolo, James Santore and Ignazio Lawrence Orlando with the sale of 16 ounces, 390 grains of heroin on December 11, 1957. In the third count Peter Casella and James Santore were accused of selling 9 ounces, 197 grains of smoking opium on December 19, 1957. Nicholas Narducci, Anthony Napolitano, Ignazio Lawrence Orlando, Anthony Edward Tarlentino and Nicholas Tolentino were charged in Count Four with the possession on January 21, 1958 of 6 pounds, 6 ounces, 302 grains of heroin. And the fifth and last count charged all of the above and Lorenzo Orlando with conspiring from September 1957 through January 1958 to conceal, possess, buy, and sell a quantity of narcotic drugs, the exact amount and nature thereof being unknown. The indictment also listed thirty-two overt acts alleged to have been undertaken in pursuance of the conspiracy charged in Count Five.
Anthony Napolitano and Nicholas Tolentino were not apprehended. The remaining indictees waived a jury and went to trial on June 3, 1958 before a district judge sitting without jury. On July 3, 1958, after seventeen days of trial, the court found each of the defendants guilty as charged. All but Ignazio Lawrence Orlando are contesting their convictions on this appeal.
The facts of this case are lengthy and involved, spelling out as they do the sordid story of large scale trafficking in narcotics, but as the appellants contend that there was insufficient evidence to support their convictions, and as Santore presents to us the defense of entrapment, rejected below, we must go into the facts in some detail. The district court accepted the testimony of the Government's witnesses throughout, even where their testimony was contradicted by defense witnesses, and since from our perusal of the record that acceptance seems reasonable enough, we state the facts as they were presented at trial by the Government.
Michael Picini, an agent of the Federal Bureau of Narcotics, first met Santore on February 26, 1957 at the 39th Ward Independent Republican Club in Philadelphia, Pennsylvania. Picini introduced himself as an out-of-town narcotics peddler, mentioned the name of a friend of Santore in Baltimore, and expressed a desire to buy a sample quarter kilo of heroin. After at first stating that "his people wouldn't sell less than a half kilo," Santore finally fixed a price of $3,500 for a quarter kilo and told Picini to let him know when he was ready to buy. Subsequently, at a second meeting on March 4, 1957, Santore reintroduced the subject of narcotics by asking Picini if he was still interested in purchasing heroin.
On March 8, Santore introduced Picini to Frank Valli, a Philadelphia drug trafficker. At that time, however, no agreement to purchase was made. On March 20, Picini introduced another agent, Eugene Marshall, to Santore and Valli, describing him as his partner. During the evening of the 21st arrangements were made for the purchase of six ounces of heroin, and the agents gave Santore an agreed price of $3,150. Two days later, following Santore's instructions, the agents picked up the drugs. A second sale consisting of one-sixth of a kilo of heroin was made on April 3.
After the second sale the agents told Santore that they were dissatisfied with the quality of the drugs they were receiving, and he thereupon introduced them to another local trafficker, Frank Malfi. Following this meeting two purchases of heroin, one-quarter of a kilo on July 25 and one-half kilo on August 22, were made through Santore and Malfi.
Picini and Marshall advised Santore that they still were not satisfied with the drugs being supplied them by Philadelphia peddlers, and insisted that Santore take them directly to his New York "connection." Santore did not respond to the agents' demand immediately but finally offered to make the introduction in return for $2,000. On October 16, 1957, Santore introduced the agents to Peter Casella, who offered to supply them with any amount of pure heroin they desired. He stated that this pure heroin could be supplied in "amounts anywhere from half a kilo to a ton * * * with the quality just as it comes off the boat" and he set its price at $11,000 a kilo. After some discussion Casella instructed the agents to meet him on October 21st at the Hotel Lexington in New York City. The agents were to park their automobile in the parking lot across the street from the hotel and the heroin was to be placed in it.
About 4:30 P.M. on October 21, Santore and Casella were seen conversing with Emilio D'Aria in front of the Hotel Lexington. After a brief discussion Santore and D'Aria entered D'Aria's car and drove off together.
At 6:00 P.M. Marshall arrived at the parking lot and was met by Santore who gave him a package from his pocket containing one-half of a kilo of pure heroin. After Marshall placed the package in the trunk of his car, he informed Santore that he was then unable to pay for it because Picini, who had the funds, was in a Trenton hospital. This story was repeated to Casella in the hotel cocktail lounge. He at first insisted that the drugs would have to be removed from the car and returned to him, but, after the problem was discussed over dinner at a restaurant, Casella finally agreed that Marshall could keep the drugs on consignment if Casella's "New York partners" gave their consent to it.
Casella left Marshall and Santore to wait while he went to see his partners, and was followed to the Paddock Bar on Broadway. He seated himself at the bar and a government agent sat down one stool away. D'Aria and James Leo Massi then entered the bar, joined Casella, and engaged in conversation with him.
After an initial greeting, Casella said: "I don't have the money. One of them got sick and his partner came alone." D'Aria then asked, "Where is the package now?" - and Casella replied, "It's in the trunk of their car on the East Side. They're good for the money." There was still some hesitation on Massi's part, and Casella then stated, "Look, they're going to give me the money tomorrow. You come down on Wednesday and you'll get your money." After the three had apparently agreed to Casella's plan, the seated agent got up and left the bar.
After some additional twenty minutes of conversation Casella, still under surveillance, left the Paddock Bar and returned to Marshall and Santore. He told them that he had convinced his partners that Marshall could keep the package, but that full payment for it must be had by October 23 when the partners were going to Philadelphia for their share of the purchase price.
October 23 Marshall met Santore in Philadelphia and told him that in order to get the money he and Casella would have to accompany Marshall to where Picini was staying, at the King Kole Motel in New Jersey. The agent and Santore then picked up Casella at a flower shop in Philadelphia. At first Casella did not want to leave with them, for he was expecting the arrival of his partners from New York, but he finally agreed, and the three drove to the King Kole Motel. There Picini paid Casella $5,500 for the narcotics and paid Santore an agreed-upon $1000 bonus, in lieu of the promised $2,000.
On that same day agents followed D'Aria and Massi from New York to Philadelphia where they went directly to the flower shop. There they waited for Santore and Casella until the latter two returned from New Jersey.
During the month of November the agents and Santore and Casella discussed the possibility of a partnership for the sale of opium - from Turkey and the best available "called red Turkey smoking opium" - but nothing came of the discussions. The agents desired to see an opium "sample," but Santore indicated a delivery of one would be delayed. Toward the end of that month, however, at Santore's urging, tentative arrangements were made for another purchase of heroin.
In New York, on December 10, the two agents met with Santore and Casella at the Hotel Edison to discuss the details of this heroin purchase. At dinner that evening at a restaurant Casella announced that he had to call his "connection." After telephoning, he stated that his connection would be there shortly, and that the connection was the same person who had supplied the heroin for the October 21 sale. Soon Joseph Lo Piccolo entered the restaurant and Casella joined him immediately. After some discussion with Lo Piccolo, Casella returned to the table and said that everything had been arranged and that all he needed to know was the quantity to be delivered.
The next day Picini told Casella that he wanted to purchase another half kilo, and the latter said that he would see his connection about it. Casella was then followed to the apartment house where Lo Piccolo had an apartment. He remained inside the building for half an hour. Upon his return to the hotel where Santore, Marshall and Picini were waiting he said that the drugs would be delivered that evening at 9:00 P.M. It was agreed that the drugs were to be placed in a bureau drawer in the agents' room at the Hotel Edison while they were absent from it. To enable the delivery to be made in this manner Marshall gave Casella his room key, and the latter said that he would "give the key to his people." Casella then proceeded to the same apartment building that he had entered earlier in the day, and upon his return told Marshall that he had given the key to his supplier and that the delivery would be on schedule.
At 9:00 P.M. that evening Ignazio Lawrence Orlando entered the hotel, went to the agents' room, unlocked the door, entered, and closed the door behind him. A few minutes later he came out of the room and left the hotel. As he went by Casella and Marshall, who were standing outside, Casella said "Everything is all right, the stuff is in the room." Ignazio Orlando then got into a car in which Lo Piccolo was already seated and drove to the latter's apartment building. There Orlando alighted, went into the basement garage, got into his own car, and drove away. Lo Piccolo drove off in the car they both had been in.
No one had gone into the agents' room except Ignazio Orlando. When the agents looked in the bureau they found a package containing a half-kilo of heroin. Picini then, at Casella's direction, gave $6,000 to Santore.
On December 18 Santore informed Marshall that the opium sample was now "in New York." The next day Marshall picked up Santore and Casella in Philadelphia and drove them to New York City. En route Casella stated that he could now supply raw opium at $1300 a kilo, or smoking opium at $450 per four ounce can. In New York Casella said that he had to go to his connection's home to get the samples. He fixed a $900 price to be paid to Santore. Picini paid Santore, Casella and Santore were then followed to Lo Piccolo's apartment house, and Casella went to the door of apartment 7K where Lo Piccolo lived. Although Casella was not observed after he stopped in front of the door of 7K, a doorbell rang, voices were overheard, and a minute later Casella had disappeared from the corridor. Some minutes later Santore, who had remained on the ground floor in the lobby, came out of the building with Casella and gave Marshall two cans of prepared opium.
Tentative plans were made between Marshall and Picini and Casella and Santore on January 3, 1958 for the sale of additional heroin and opium, and on January 8 an advance payment of $1500 was made by Picini to Santore at Casella's direction. Arrangements were then made looking toward January 21 as the tentative date for a delivery of these drugs by the New York connection to Santore; Santore was to then transport them to the agents at the King Kole Motel.
About 7:00 P.M. on January 20th Ignazio Orlando drove to the home of his father, Lorenzo Orlando, at 164 Hill Street, Elmont, Long Island. A minute or two after he entered the house a light flashed on in the attic and remained on for about two minutes. Shortly thereafter Ignazio Orlando emerged from the house carrying a package similar in appearance to another package he had been observed delivering to Lo Piccolo's appartment a few hours earlier. Ignazio Orlando put the package in his car, drove to a place in the Bronx, parked his car, met Anthony Napolitano and transferred the package to the trunk of the latter's parked car. Orlando then drove off and Napolitano walked away.
Later that evening Anthony Edward Tarlentino and Nicholas Narducci were observed in the former's car, driving back and forth past Napolitano's car, and then parking for about twenty minutes across the street from it. Tarlentino then drove off and parked again a block away. Narducci emerged and after walking past Napolitano's car to the next corner walked back to it and began to open its trunk. Just as he was doing so, and was starting to lift out the package, federal agents drove by. Narducci released the package, closed the trunk, and returned to Tarlentino's car. They then drove away.
Tarlentino dropped Narducci off in Manhattan and then proceeded to the Bronx where he entered a bar and met Napolitano and Nicholas Tolentino. Tarlentino was overheard by an agent to say, "the kid got scared and left the package in the car" and according to the agent Tolentino replied that "they would look around, and when it looked all right, they would take the stuff away." Early the next morning Tolentino and Napolitano attempted to drive Napolitano's car away. Federal agents tried to apprehend them and gave chase. The defendants escaped, but the agents recovered the car. The package in the trunk was found to contain six and one-half pounds of pure heroin - 2.94 kilograms.
Tarlentino and Narducci were arrested on the morning of January 21, and, in the custody of the agents, gave inconsistent accounts of their actions of the night before. Tarlentino stated that he took Narducci with him to a bar to keep a date with a young lady, but not finding her at the appointed place he took Narducci directly home and then returned to the bar. Narducci claimed that he had followed Tarlentino's instructions in attempting to pick up the package, and that he was unaware of its contents. When he saw the agents he thought they were police and became frightened. After making these statements, however, Narducci admitted that everything he was saying was untrue.
On January 22, at about 9:15 P.M., Ignazio Orlando and Lo Piccolo went to the home of Lorenzo Orlando. Shortly after the two men entered the side door of the house a light went on in the attic for a brief period. A few minutes later the two men came out of the house together, placed a package in the trunk of Ignazio Orlando's car, and drove away. Agents attempted to follow, but soon had to discontinue surveillance.
About 2:00 A.M. on January 23, Santore arrived at the King Kole Motel on the Black Horse Pike in New Jersey. On instructions from Santore, Marshall picked up a package from the back seat of Santore's car similar in size and shape to the package Lo Piccolo and Orlando had placed in Orlando's car several hours earlier. The package Marshall received was found to contain almost eleven pounds of pure heroin and four jars of smoking opium. Santore asked for $8,000 and was then arrested.
Lo Piccolo on January 23, at 4:30 A.M., was also placed under arrest and was handed a copy of a search warrant for his apartment. He denied that he knew Ignazio Orlando and stated that during the evening he had just been around the city - "nowhere in particular." The agents discovered in Lo Piccolo's apartment some eight to twelve hundred dollars, and he had a map of New Jersey with the penciled notation, "Haverton four miles, Black Horse." Ignazio Orlando was also apprehended that morning when he arrived at his home.
At about the same time that Lo Piccolo and Ignazio Orlando were being arrested, agents armed with a search warrant went to the side door of Lorenzo Orlando's home. When Lorenzo came to the door he was shown a copy of the search warrant and the agents proceeded upstairs to the attic. After searching two small attic bedrooms in the presence of Orlando and his wife, the agents discovered a locked door in the bathroom. Orlando attempted to dissuade the agents from opening that door by stating that it was the bedroom of a tenant, by denying that he had a key, and, finally, by placing himself between the agents and their objective. However, the agents forced open the door and discovered, instead of bedroom furnishings, a steamer trunk, and on it a suitcase containing over nineteen pounds of pure heroin and one pound of opium. When asked about this discovery Lorenzo Orlando stated that the contents of the suitcase were indeed narcotics and admitted ownership. Within the trunk was a complete set of laboratory equipment for the dilution and preparation of narcotics. An agent searching the basement of the house located a box containing a number of empty glassine bags, some of which contained traces of heroin. And while one of the agents was passing to Orlando clothing which he had indicated he wanted to wear, the agent discovered in the pocket of the overcoat a skeleton key which opened the lock of the attic room.
When Lorenzo Orlando was subsequently interrogated he was unable to give the last name of the alleged tenant who was supposed to have occupied the attic room. And, although the door to the attic room led off the bathroom which the Orlandos apparently used, Lorenzo Orlando admitted that he had not told his wife that anyone was living in the room.
This then, in the main, is the background of the case. Certain contentions of the appellants require a more complete statement of particular facts, but that can best be deferred until the point in question is discussed. Each of the appellants makes various individual arguments; and all, in conclusion, incorporate, where applicable, the arguments of the others.
I. The Sufficiency of the Evidence
Section 174 of Title 21 makes it a crime for any person to receive, conceal, buy, sell or in any manner facilitate the transportation, concealment or sale of any narcotic drug imported contrary to law when that person has knowledge of that narcotic drug's illegal importation. Torres Martinez v. United States, 1 Cir., 1955, 220 F.2d 740; Kalos v. United States, 8 Cir., 1925, 9 F.2d 268. The section also states that it shall be a crime to conspire, apparently with the same knowledge, to commit any of these activities. And, as an aid to the enforcement of this section, Congress has provided that "[whenever] on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury."
We have no difficulty in determining that the defendant Peter Casella actively participated in the sales of narcotics and that he was a member of a conspiracy dealing with narcotic drugs. And, as to Count Three, wherein he was charged with a sale of smoking opium on or about December 19, 1957, there was sufficient evidence to support a finding that the opium then sold was illegally imported and that Casella knew it. In November Casella told the agents that through connections with a smuggler he could get them opium from Turkey, and, at dinner on December 11, he stated that while the opium was in port it had not yet been unloaded. Too, just before the sale, on December 18, Santore told Agent Marshall that the opium sample was now in New York.
However, as to Counts One and Two, charging sales of heroin, there is no evidence in the case that the heroin was illegally imported or that defendant knew it to be contraband. The Government recognizes this inadequacy of its proof, and it urges us to rely upon the statutory presumption, contained in section 174. It argues that even though it was not shown that Casella ever physically held the heroin, or had personal custody of it, his position in the conspiracy was such that he had the "possession" the statute contemplates. Defendant, of course, takes the opposite view. He contends that he did not have actual possession of the heroin and therefore the presumption cannot operate against him with respect to it.
We have on two occasions indicated that personal custody or manual possession of narcotics by a defendant is not essential in order to bring the presumption into operation against him - that is, the drugs may physically be held by one person and possession still be in another. United States v. Moia, 2 Cir., 1958, 251 F.2d 255; United States v. Cohen, 2 Cir., 1941, 124 F.2d 164, certiorari denied Bernstein v. United States, 1942, 315 U.S. 811, 62 S. Ct. 796, 86 L. Ed. 1210. And see Gallegos v. United States, 10 Cir., 1956, 237 F.2d 694. While these decisions are not, perhaps, conclusive authority, for they deal with this issue in passing and without extended discussion, we follow them. The view they indicate to be the sound one is in accord with what we consider to be the proper and reasonable interpretation of the word "possession" as it is used in this particular statute. So interpreted, "possession" includes not only immediate physical control but also that control which is exercised through agents.
It is well recognized both in civil and criminal law that the word "possession" may encompass both types of control. See, e.g., National Safe Deposit Co. v. Stead, 1914, 232 U.S. 58, 34 S. Ct. 209, 58 L. Ed. 504; People v. Brenneauer, 1917, 101 Misc. 156, 166 N.Y.S. 801; Commonwealth v. Smith, 1958, 187 Pa. Super. 1, 144 A.2d 253; Bennett Chevrolet Co. v. Bankers & Shippers Ins. Co., 1937, 58 R.I. 16, 190 A. 863, 109 A.L.R. 1077; Reynolds v. Roberts, 1885, 57 Vt. 392; Black's Law Dictionary (4th Ed. 1951). And while it is true that we should strictly construe criminal statutes, we are surely permitted to define a term that has long had a recognized meaning in the law in a manner consistent with that recognized definition.
Moreover, it should be remembered that this presumption, which greatly favors the Government, was written into the section because Congress undoubtedly believed that drug trafficking should be stamped out, and that convictions of persons engaging in that traffic should be more easily obtained. Also, section 174 makes possible the imposition of the same heavy penalties provided for in that section upon those found guilty of conspiring to engage in the illicit drug traffic as upon those found guilty on substantive counts. This clearly indicates a Congressional belief that all the members of a narcotics conspiracy, not only those caught "red handed" concealing, buying, selling and transporting the drugs, have equally outraged society. Therefore we would be stultifying the Congressional intent if we should hold that Congress intended the word "possession" in this statute to be defined so as to secure easier convictions of only those members of a conspiracy, often few in number, who are shown to have had personal custody of the narcotics.
Defendant Casella points to 26 U.S.C. §§ 4704(a), 4705(a), and 4721-4724, sections of the Internal Revenue Code of 1954, and argues that since convictions can be obtained under these provisions without proof that the narcotics were imported contrary to law to the defendant's knowledge, section 174 should not be interpreted as we are now interpreting it. Any thought that Congress intended these Internal Revenue provisions as a substitute for 21 U.S.C.A. § 174 is defeated by 26 U.S.C. § 4734, which provides:
"Nothing contained in sections 4701 to 4707, inclusive, or sections 4721 to 4726, inclusive, shall be construed to impair, alter, amend, or repeal any of the provisions of the act approved February 9, 1909, entitled 'An Act to prohibit the importation and use of opium for other than medicinal purposes' (c. 100, 35 Stat. 614; 21 U.S.C. 171-185), * * and any amendment thereof."
This presumption of illegal possession of imported narcotics so set forth in 21 U.S.C.A. § 174 casts the burden of going forward upon the accused to disprove importation, but it does not appear that our interpretation of this statutory presumption endangers its validity. In Yee Hem v. United States, 1925, 268 U.S. 178, 45 S. Ct. 470, 471, 69 L. Ed. 904, the Supreme Court, in dealing with a provision couched in almost identical language, set out the following canon:
"That a legislative presumption of one fact from evidence of another may not constitute a denial of due process of law or a denial of the equal protection of the law it is only essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate.'"
It is just as "rational" and "reasonable" to infer the fact that narcotics are contraband, and that defendant had knowledge thereof, from the fact that defendant had control over them while held by another, as it is to so infer because a defendant had personal or physical custody of them.
The question we must therefore answer with respect to Casella's conviction under Counts One and Two is whether the Government presented evidence sufficient to support a finding that Casella was in a position to exercise control over the heroin sold on October 21, and on December 11, 1957. While it is clear that Casella was not in sole control of the heroin sold on those dates we think it equally clear that, together with others, he exercised some dominion over it. Casella was a full partner in the conspiracy, not simply a hired agent, and he had at least partial control over what was to be done with the contraband handled by the group. A clear illustration of his position can be seen in the events of October 21. When Marshall was unable to pay for the drugs delivered, Casella, in conjunction with his "New York partners," was able to let them go on consignment. And there is no reason for believing that this control, exercised as a result of his role in a continuing conspiracy, did not extend to the narcotics subsequently handled by the group. In our opinion Casella was, for purposes of section 174, in possession of heroin on the dates charged in Counts One and Two of the indictment. Since he made no attempt to "explain" his possession on those dates he was properly convicted.
And inasmuch as the proof of his activities that supports the Government's case on Counts One, Two and Three is also applicable to the conspiracy charge under Count Five, we also affirm the Count Five conviction.
B. James Leo Massi and Emilio D'Aria.
The main evidence against the defendants Emilio D'Aria and James Leo Massi is the testimony of the Narcotics Agent with respect to the conversation which he stated that he overheard between those defendants and Casella in the Paddock Bar on October 21, 1957. Both D'Aria and Massi took the stand and denied the conversation testified to by the agent, but, as we have stated above, the district court chose to believe the agent. Taken in connection with the other testimony properly bearing upon their guilt, and in context, this conversation was properly interpreted as showing the participation of D'Aria and Massi in the sale of heroin on that day and their membership in the overall conspiracy. Less than two hours before the scheduled delivery on October 21st D'Aria met Santore at the place of transfer. After a brief conversation D'Aria and Santore drove away. An hour later Santore returned with the package of drugs in his possession. Immediately after Casella told these defendants in the bar that they would have their money by October 23rd Casella returned to the agents and told them to make payment to him by that date. Also, there is the trip to Philadelphia by D'Aria and Massi and the meeting with Santore and Casella on the date when the agents made payment for the October 21 delivery. While it is true that this evidence only relates to the first sale undertaken by the group, and only establishes that these defendants were at that time members of a conspiracy, they made no attempt to show that they ceased thereafter to be members.
There is no evidence proving that D'Aria and Massi had knowledge that the heroin was contraband, but the import of their conversation reveals that these two defendants, like Casella, exercised proprietary control over the narcotics. This is especially clear when the Paddock Bar conversation is viewed in the light of Casella's references to his "partners" - hearsay statements admissible against D'Aria and Massi because of the established joint enterprise. Under the rationale stated above with respect to the defendant Casella, it is clear that these two defendants had "possession" of the heroin prior to the time when it was turned over to Agent Marshall. And, under section 174, they, therefore, had the duty of going forward and establishing their innocence. This they failed to do.
With respect to Count Three charging a sale of smoking opium on December 19, 1957, there is direct proof of the guilt of James Santore. He took an active part in making arrangements for the sale and in the transaction itself, and the requisite knowledge of the illegal importation is established by the fact that he was present when Casella mentioned that he could get opium from Turkey through his connection with a smuggler. Similarly, there was evidence to establish Santore's guilt under Count Five, the conspiracy charge, to the extent that he was a member of a conspiracy to sell opium knowing it to have been imported contrary to law.
As to Count One, charging a sale of heroin on October 21, 1957, Santore's conviction, like the convictions of Casella, D'Aria and Massi, is affirmed because he did not overcome the statutory presumption contained in section 174. He physically delivered the heroin sold on that date to Agent Marshall, and had unquestioned possession of it.
Santore's conviction under Count Two, however, must be reversed. There is no evidence showing that he had possession of the heroin sold on December 11, or that he knew it was contraband. Unlike the transaction of October 21st, Santore did not actually deliver the December 11 drugs; and, as far as the record reveals, he was not a member of the conspiracy in the sense that he had a voice in deciding, or could control, what was to be done with the narcotics. On the contrary, Santore functioned only as an intermediary between the agents, as purchasers, and Casella and his partners, as sellers. For instance, on October 21 when Agent Marshall was trying to defer payment for the heroin delivered to him, Santore's permission was not sought. The defendant was, without question, an active member in the criminal conspiracy but his membership therein was not such that, absent physical custody of the drugs, he exercised that type of control over them and their disposition which we hold constitutes possession.
The defendant Joseph Lo Piccolo was indicted under Count Two for engaging in a sale of heroin on December 11, 1957, and under Count Five for being a member of the narcotics conspiracy. Despite his vehement protestations to the contrary, there is no doubt in our minds that the Government established his participation in that sale and that he was a member of a drug peddling conspiracy. At dinner on the evening of December 10th, Agents Marshall and Picini and defendants Santore and Casella were discussing a purchase of heroin. During dinner Lo Piccolo entered the restaurant, and Casella left the table to talk with him. When Casella returned to the table he was able to state to the agents that everything concerning the proposed transfer of the narcotics had been arranged. The next morning when Casella learned the amount of heroin the agents desired he went to the apartment building where Lo Piccolo lived; and upon his return he stated that the heroin would be delivered at 9:00 that night to the agents' hotel room. Also, the agents' room key was taken by Casella to that building. That evening, upon leaving the hotel after delivering the drugs, Ignazio Orlando got into an automobile in which Lo Piccolo was seated, and drove that car to where his own car was parked in the basement garage of Lo Piccolo's apartment building. These events tie Lo Piccolo into the transaction of sale of December 11. Thereafter, on December 19, Casella went to Lo Piccolo's apartment to pick up opium and was overheard talking to someone in the apartment. On January 20, Ignazio Orlando carried into that apartment a package similar in shape and wrapping to other packages taken from the drug cache in Lorenzo Orlando's home. Immediately after the package arrive Lo Piccolo closed his window blinds. The last significant date before Lo Piccolo's arrest was January 22. That evening Lo Piccolo went with Ignazio Orlando to the home of the latter's father. A light went on and off in the attic, and shortly thereafter the two emerged carrying a package identical in size and shape to the one in which drugs were discovered in New Jersey a few hours later. On being arrested the following morning, the marked map and the money were found in his apartment, and he denied knowing the defendant Ignazio Orlando. A trier of facts is not limited to drawing only those inferences most favorable to the accused, United States v. Moia, 2 Cir. 1958, 251 F.2d 255. And when all of these various incidents of proof are viewed together, they justify the conclusion that Lo Piccolo was engaged with Casella and others in a joint enterprise. Lo Piccolo's involvement, demonstrated first by the evidence that he was engaged in the conspiracy, is overwhelmingly established when the hearsay references of Casella to his "connection" and "supplier," which then became admissible against Lo Piccolo, are considered.
But, as there was no evidence to show that Lo Piccolo knew that any of the drugs with which he or his fellow conspirators dealt were contraband, we can sustain his convictions only if we can find that he had possession of the drugs. The record fails to establish that Lo Piccolo ever possessed heroin as early as December 11, 1957, physically, or by controlling the disposition of it, or otherwise. The drugs sold on that date were delivered to the agents' room by Ignazio Orlando. While it is quite likely that Orlando got the room key from Lo Piccolo there is no evidence tending to show that he also obtained the heroin from him. Similarly, there is no evidence tending to establish that, with respect to the heroin sold on December 11, Lo Piccolo had that type of control which we have seen was exercised by the defendants Casella, D'Aria and Massi. Consequently, his conviction on Count Two must be reversed.
But as to Count Five, since it involved a period of time extending beyond December 11, there was indeed sufficient evidence to justify a finding that Lo Piccolo was in possession of narcotics. On December 19, after stating that he had to obtain opium from his connection's home, Casella was followed to Lo Piccolo's apartment where he engaged someone in conversation and obtained two cans of prepared opium. On January 20, Ignazio Orlando carried a package similar in appearance to others transported from Lorenzo Orlando's home to Lo Piccolo's apartment, and, immediately after Ignazio Orlando's arrival, Lo Piccolo closed his window blinds. Finally, on the evening of January 22, Lo Piccolo, together with Ignazio Orlando, carried a box, identical in size and shape to the one in which drugs were discovered in New Jersey a few hours later, from Lorenzo Orlando's home to an automobile. After placing the box in the automobile, the two men drove off. Looked at in ...