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United States v. Frascone

February 5, 1962


Author: Waterman

Before CLARK, WATERMAN and MOORE, Circuit Judges.

WATERMAN, Circuit Judge.

After a jury trial in the United States District Court for the Southern District of New York, appellant, Salvatore Frascone, was convicted on four counts of an indictment charging him with making illegal sales of narcotics. On this appeal we affirm the conviction.

At appellant's trial three agents of the Federal Bureau of Narcotics testified for the prosecution. Agent Charles R. McDonnell testified that on October 6, 1958, at 116th Street and Madison Avenue in New York City, Joseph Bove, a special employee, or informer, working for the Bureau of Narcotics, introduced him to a man called "Johnny," who was later identified as appellant. At that meeting McDonnell told appellant that he wished to purchase heroin. Appellant offered to get McDonnell an ounce of "pure" for $400. The agent answered that he only wanted half an ounce. Frascone asked McDonnell where he could be reached, McDonnell gave Frascone his telephone number, and Frascone said that he would call him the next evening.

All the while narcotics agent Patrick Biase had this meeting under surveillance. He testified that after the conversation related above appellant entered a 1948 Plymouth and drove to the Vivere Bar and Grill at Second Avenue and 10th Street.

McDonnell testified that on the next day, October 7, Frascone called him as promised, and pursuant to the call they met at 10th Street and Second Avenue. After Frascone entered McDonnell's automobile, the agent drove around the block and stopped at 11th Street and Second Avenue, as Frascone had instructed him to do. There appellant got out of McDonnell's car and walked to a Cadillac parked nearby. Then appellant reentered the agent's car and gave McDonnell a small brown package, for which the agent paid $200. Frascone asserted that the package contained a full ounce of heroin and therefore McDonnell owed him another $200. McDonnell said that he would have to see Frascone the next day about the additional money. Frascone acquiesced. Agent Biase, who had observed the first meeting between McDonnel and appellant, was also observing the meeting of Cotober 7. He testified that after McDonnell left, appellant went into the Vivere Lounge. The next day McDonnell paid Frascone the additional $200.

An analysis of the contents of the package which Frascone had given McDonnell revealed that it contained 395 grams, slightly less than one ounce, of heroin.

The next contact between appellant and the narcotics officers, McDonnell testified, was a telephone call by appellant to McDonnell on November 21, 1958, in which appellant offered to sell him several more ounces of heroin. They agreed on a price of $280 for this purchase. McDonnell met Frascone at 10th Street and Second Avenue once again. McDonnell was accompanied by another agent, Jack R. Peterson, whom McDonnell introduced to appellant as the man who would pick up the narcotics for McDonnell in the future. After a brief conversation held privately between McDonnell and appellant, McDonnell counted out $300 and gave it to agent Peterson. McDonnell then left Peterson alone with Frascone.

Agent Peterson testified that he and Frascone walked over to Avenue A. There Frascone told the agent that the heroin was under the front seat of a car parked on that avenue near the corner of 11th Street. To identify the correct car, Frascone walked up to it and lit a cigarette. It was the same 1948 Plymouth that appellant had driven on October 6. Then Peterson entered the car and found under the front seat two glassine envelopes containing white powder. Peterson examined the powder as best he could and concluded that it was heroin. He rejoined Frascone, who had been standing nearby, and paid him $280 for the two envelopes.

A subsequent laboratory analysis proved the white powder to be approximately two ounces of heroin.

On December 5, 1960, a four count indictment was filed against Frascone, charging him with making illegal sales of narcotics. Counts one and two related to the sales of October 7, 1958. Count one charged a violation of narcotics laws, 46 Stat. 586 (1930), 21 U.S.C.A. § 173, and 70 Stat. 570 (1956), 21 U.S.C.A. § 174. Count two charged a violation of Int.Rev.Code of 1954 §§ 4701, 4703, 4704 (a), 4771(a), 26 U.S.C.A. §§ 4701, 4703, 4704(a), 4771(a), which impose a federal tax on narcotics. Counts three and four related to the sale of November 21, 1958, and, respectively, charged Frascone with violations of the same narcotics acts as did counts one and two. After a trial lasting three days Frascone was convicted on March 2, 1961, on all four counts of the indictment and sentenced to seven years imprisonment and a fine of $4,000. Frascone now appeals to this court from the judgment entered upon that conviction.

Upon this appeal Frascone first asserts that the trial judge committed reversible error in his explanation to the informer, Bove, called as a witness by the defense, concerning Bove's privilege against self-incrimination. The court advised Bove of his right in these terms:

"The Court:

"The Court: Mr. Bove, you have been brought down here ...

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