Before WATERMAN, MOORE and FRIENDLY, Circuit Judges.
This appeal is from judgments, entered after a trial before Judge Dimock and a jury, convicting defendants under a two-count indictment which charged them with receiving, possessing, concealing and facilitating the transportation and concealment of narcotics illegally imported in violation of 21 U.S.C.A. §§ 173 and 174 and with conspiring to violate the same sections. Appellants question the sufficiency of the evidence and allege various errors by the trial judge. We think the evidence was ample to warrant submission to the jury, and we find no errors in Judge Dimock's conduct of the trial.
The prologue to the story told at the trial occurred in the afternoon of September 19, 1958, when a special employee of the Bureau of Narcotics informed narcotic agents that William and Rose Rovira and Montalvo would meet at the Roviras' home later in the afternoon, that the three defendants would then go to the Bronx to pick up some pure heroin, and that Montalvo would carry this to his apartment for adulteration. The agents set up an extensive surveillance of the defendants with efficiency and dispatch. The results were put before the judge and the jury by a number of agents and employees of the Bureau of Narcotics and also by Montalvo's landlady. Of the three defendants only Montalvo testified.
About 6 p. m. the three defendants left 46 West 83rd Street where the Roviras lived. They went to a garage, departed in a car still carrying nothing with them, and drove to the Bronx. En route they made a stop at a butcher shop. Rose Rovira left the car empty handed and returned equally so. Their next stop was a housing project in the Bronx. Rose again alighted, carrying nothing. A few minutes later she came back, carrying a brown paper bag. As she paused on the curb, two Federal agents drove between her and the car. One of them estimated the bag to be eight inches in length and four inches in height and width; he noted also that the neck of the bag had been rolled down to serve as a handle.
Rose entered the car, which drove off. A taxicab driven by a government agent followed it. Shortly the Rovira car stopped. Rovira signalled for a taxicab; the government cab responded. The driver saw Montalvo descend from the Roviras' car, holding a brown paper bag which Rose Rovira had passed to her husband, who had handed it on. Montalvo, with the bag, then entered the government cab. The agent-taxi driver's estimate of the dimensions of the bag was nearly the same as that of the agent who had first observed it. He also noted that the neck had been rolled down to form a handle.
Montalvo gave the agent 11 West 73rd Street as the destination. The agent made a stop on the pretext that he wished to call his wife. Instead he called the Bureau of Narcotics for the deployment of additional agents. Montalvo left the cab at the corner of West 73rd Street and Central Park West.The agent-taxi driver and another agent saw him enter 11 West 73rd Street, bag in hand. A narcotic clerk posted inside the building saw him enter apartment 1A, still with paper bag. Fifteen minutes later Montalvo left 11 West 73rd, without paper bag. He was confronted by two agents who inquired whence he came. Montalvo said he had just come from uptown in a cab and was on his way to meet a girl. He denied having come from 11 West 73rd Street. He was arrested, searched and brought back to the apartment. This was thoroughly searched for the brown paper bag without success. During this search Montalvo removed a lining of brown paper from a bureau drawer. He wrapped this around some shirts in an endeavor to demonstrate to the agents that this was the package he had been carrying. The endeavor failed; for the package of shirts was larger and bulkier than the paper bag, the paper was darker in color and covered with dust, and Montalvo's story that he had carried the package under his arm did not tally with the observations made by the two agents and the narcotic clerk.
While the search of the apartment was in progress, the landlady arrived. She unlocked the outer street door leading to the basement; a first search of the basement and of the rear stairway connecting it with each apartment did not disclose the paper bag. On returning to Montalvo's apartment, the landlady asked for his key to the fire door to the rear stairway leading to the basement. He said it was lost. The agent and the narcotic clerk went again to the basement via the street door, and made a more thorough search. This time they found a brown paper bag containing heroin, hidden at the top of a closet. The agent who had seen Rose Rovira carrying a bag in the Bronx and the agent-taxi driver who had driven Montalvo confirmed that the bag found in the closet was the same in size and shape as the one they had previously observed.
The agents then obtained a confession from Montalvo by methods which led Judge Dimock to suppress it.Among the items of information yielded by the confession was that Montalvo's fire door key was concealed in a roll of toilet paper in his bathroom. Montalvo accompanied one of the agents who found this. There followed a third trip by the agents to the basement, this time by the rear stairway route, and the discovery, in the same closet where the paper bag had been hidden, of a shirtsleeve containing more heroin and paraphernalia useful for its adulteration and conversion from wholesale to retail size.
About 11:15 p. m. William Rovira drove past 11 West 73rd Street in the same car that had made the trip to and from the Bronx. With the ill fortune that dogged the defendants that evening, he had attracted as a passenger a special employee of the Bureau of Narcotics, who died before the trial. On two occasions Rovira slowed down as he passed 11 West 73rd Street, looked toward the building, but, after a few seconds, resumed speed. Shortly thereafter other agents found Rovira and the special employee in a nearby drugstore. They placed Rovira under arrest. When asked whence he had come, Rovira said he had come straight from home to the drugstore to buy medicine. When taken to the 11 West 73rd Street address and confronted with Montalvo, he said he did not know Montalvo and had never seen him before. A search of Rovira's person disclosed a penknife. The blade of this was caked with a small quantity of heroin.
For the final act we return to the Rovira apartment at 46 West 83rd Street. Rose was apprehended there. Her account of her day's doings was that she and her husband had gone to the Bronx to visit and on the way had picked up a friend of her husband whose name she did not know. She denied knowing Montalvo. Both Roviras repeated this denial at the United States attorney's office on the following morning when all three defendants were present. At the trial Montalvo admitted being with the Roviras on September 19; he testified also that he had known them for about a year.
We think this summary is enough to dispose of defendants' contention of insufficiency of evidence to warrant submission to the jury, and we proceed to the alleged errors at the trial:
(1) The admission in evidence of the brown paper bag containing heroin and the shirtsleeve containing heroin and narcotic paraphernalia, which were found in the basement closet at 11 West 73rd Street . The admission of these objects is attacked on the grounds that there was insufficient evidence to connect them with the defendants and that their discovery was the result of an illegal search and seizure.
The first ground of attack requires little comment. The identity of the bag found in the basement closet in size, color, and shape with the bag that Rose carried from the Bronx apartment, that was passed from Rose to William to Montalvo in the car, and that Montalvo took into the taxicab and from the cab into his own apartment, the absence of any such bag in the apartment, Montalvo's incredible story in regard to the brown paper in his bureau drawer, and his opportunity of access to the basement afforded a rational basis for the jury to conclude that the bag containing heroin found in the basement closet at 11 West 73rd Street was the self-same bag that had first appeared in Rose's hands in the Bronx. The fact that other persons also had access to the basement went simply to the weight of the evidence and not to its admissibility; it was not necessary to exclude all other possibilities in order to establish sufficient authentication to make the bag admissible. See Burris v. American ...