Before LUMBARD, Chief Judge, and FRIENDLY and KAUFMAN, Circuit Judges.
The ten defendants before us appeal their convictions for violation of the federal narcotics laws, 21 U.S.C. §§ 173, 174. The defendants were sentenced to imprisonment for periods ranging from five years to twenty-five years,*fn1 after a two-month trial before a jury in the Southern District of New York. The indictment, filed on May 22, 1961, contained thirty counts. The first count charged all of the appellants and several others with conspiracy to violate the narcotics laws, commencing in September 1958 and continuing until May 1961; counts two through thirty separately charged various defendants with substantive violations. Several individuals were named in the indictment as coconspirators but not as defendants*fn2 and other coconspirators named as defendants were not tried below for various reasons.*fn3 Michael Maiello was also convicted but died while his appeal was pending.
At the trial, the Government's case depended principally upon the testimony of two witnesses, Salvatore Rinaldo and Matteo Palmeri, who had not been named as defendants in the indictment but had been charged with participation in the conspiracy. Their testimony was offered to establish that the appellants and numerous other persons had engaged in a single conspiracy to import from Italy large quantities of heroin, which they adulterated, packaged, distributed, and sold in the United States. The conspiracy, defined generally, involved the importation of narcotics into this country by concealed packages hidden in valises or false-bottom trunks, most of which were unwittingly brought to New York piers by Italian immigrants. These immigrants were requested to bring the trunks and valises to this country by a travel agent in Italy, purportedly as a favor to some friends here. Whenever this method proved for some reason unsatisfactory, one of the appellants would travel abroad in order personally to assure the success of the venture. For convenience, we may refer to the small body of coconspirators who initated the various importations and the subsequent distributions and sales of the narcotics as the "executive group." The Government's witnesses established that the members of this group were Albert Agueci,*fn4 Frank Caruso, Vincent Mauro, and John Papalia, none of whom are appellants, and Vito Agueci, Luigi Lo Bue, and Joseph Valachi, appellants here. In addition to these men, appellant Rocco Scopellitti was also implicated in the importation scheme, for he was alleged to have personally imported hereoin into this country in August 1960.
Upon ascertaining the precise dates of the arrival in New York of the narcotics being imported, one of the members of the executive group would contact Matteo Palmeri, the Government witness, who ran a bakery in Brooklyn.*fn5 Palmeri, using his bakery truck, would drive to Pier 84 in Manhattan, seek out the immigrant who was bringing the trunk or valise containing the narcotics and identify himself as a friend of the Italian travel agent, and return with the trunk or valise to his bakery. On one occasion, when Palmeri's truck was out of order, he enlisted the aid of appellant Filippo Cottone. Palmeri was often assisted by Salvatore Rinaldo, the other chief witness for the Government. Rinaldo would perform a test on the white powder contained in the hidden packages to assure that it was heroin. The packages of narcotics were at first hidden in Palmeri's bakery, and later in Rinaldo's home in Mount Vernon.
Until October 21, 1960, when they were arrested, Palmeri and Rinaldo were the primary distributing agents for the conspiracy. They would be contacted by one of the members of the executive group and instructed to deliver a specified quantity of narcotics to a specified individual at a specified time. Thus, in the month of July 1959, Caruso told Rinaldo to meet with appellant Matthew Palmieri in order to consummate a sale. In December 1959, Valachi introduced appellant Anthony Porcelli to Rinaldo for a like purpose, and in April 1960, Porcelli introduced Rinaldo to another appellant, Ralph Guippone. The three coconspirators - Rinaldo, Porcelli, and Guippone - would adulterate the hereoin in Rinaldo's home, sell the product to other individuals named in the indictment but not here on appeal, and share in the proceeds of the sale. In May of 1960, at a racetrack rendezvous, and at the instructions of Caruso, Rinaldo met with appellant Charles Shiffman who was later instrumental in arranging sales of narcotics from Rinaldo to appellant Charles Tandler.
This, in skeleton outline, is the manner in which the alleged conspiracy operated and the manner in which each of the appellants was implicated. This information will be helpful in giving form to the narrative of specific events, which follows.
The indictment charges a continuing conspiracy from September 1958 until the date of its filing, May 22, 1961. The testimony of Government witnesses Palmeri and Rinaldo establishes the sequence of events through October 21, 1960, when both were arrested. In October of 1958, Matteo Palmeri met Albert Agueci, one of the members of the executive group, in Brooklyn; in response to questioning Palmeri indicated that he would be interested in participating in a plan to smuggle diamonds. The following month, appellant Luigi LoBue appeared at Palmeri's bakery in Brooklyn, and he informed Palmeri that he was aware of his interest in diamond smuggling, which information had been conveyed by Albert Agueci. In May of 1959, LoBue again contacted Palmeri, telling him to go to Pier 84 in order to pick up a valise from a named passenger and to identify himself (Palmeri) as a friend of Salvatore Valenti, the Italian travel agent who was allegedly responsible for "planting" the valises with Italian immigrants. Palmeri did so and delivered the valise into LoBue's hands at the bakery. Some days later, LoBue returned to the bakery with five packages which he gave to Palmeri to be hidden. Soon after, Palmeri brought those packages, on LoBue's instructions, to Vincent Mauro, who, along with LoBue, is alleged to have been a member of the executive group. Mauro, over the course of a few days, paid $15,000. to Palmeri, who in turn passed the money on to LoBue; Palmeri was rewarded for his efforts with $300.
In July 1959, LoBue told Palmeri that he had received a letter from Italy and that Palmeri should report to the pier and meet the passenger named in the letter, procure the valise, and return to the bakery. Palmeri did so, and upon observing LoBue remove a blanket from the valise, cut it open and withdraw packages of white powder, Palmeri was told by LoBue that they were dealing not in diamonds but in narcotics. Again, Palmeri was requested to hide the packages, and he again made another sale at Mauro's direction, receiving $15,000. That month, Palmeri was introduced to Salvator Rinaldo, the other chief Government witness, and from that time Palmeri delivered heroin to Rinaldo, in order to facilitate the latter's sales. The first such sale was from Rinaldo to defendant Matthew Palmieri, in exchange for $8500., which money Rinaldo transmitted to Caruso. This incident occurred in July 1959. Another sale on precisely the same terms was carried out between Rinaldo and appellant Palmieri on March 21, 1960.
Rinaldo's position as central distributor became even more secure when, in December 1959, Mauro, of the executive group, told appellant Valachi, another member of that group, that narcotics were to be picked up from Rinaldo. Valachi met with Rinaldo that month, and introduced him to appellant Anthony Porcelli; Valachi said that Porcelli was working for him and that it would be Porcelli who would pick up narcotics from Rinaldo in the future. The next morning, with Valachi standing nearby, Rinaldo delivered a package of heroin to Porcelli, which was paid for over the course of two or three weeks. Rinaldo turned over the proceeds of the sale to Caruso. In January of 1960, Rinaldo was introduced to two additional contacts*fn6 to whom further sales were made.
In late January, LoBue notified Palmeri, the baker, that a third shipment of narcotics was arriving in a valise carried by a named Italian immigrant on March 7, 1960. Palmeri performed his usual function, retrieved the valise with the hidden packages of narcotics, and passed these on to Rinaldo, who tested a sample of the substance from each of the packages. He found it to be heroin. Soon thereafter, on March 19, Rinaldo met with appellant Valachi, who informed him that "he was going away", and that in his absence, Rinaldo should deal with appellant Porcelli and with one Michael Maiello. Valachi said that although he was going away, Porcelli and Maiello would be taking care of him and sharing with him any profits these two would make on the sale of narcotics. It turned out that Valachi was indeed "going away" soon, for nine days later he surrendered to federal authorities on another charge and was incarcerated in prison.
Losing little time, Porcelli went to Rinaldo's home in Mount Vernon, in April 1960, and introduced appellant Robert Guippone; he said that Guippone was one of the men who was carrying on in Valachi's interest while Valachi was imprisoned. Plans were made to dilute quantities of hereoin with milk sugar, to sell them, and share the profits. The dilution and sales were made on several occasions in the months of May, June, August, and September 1960, and Rinaldo, Porcelli, and Guippone shared in the handsome profits, with some of the money going, on at least one occasion, to Caruso. These transactions represent the eleven substantive counts on which both Porcelli and Guippone were convicted.
At approximately the same time that Guippone and Porcelli first met with Rinaldo in April 1960, a meeting of several members of the executive group took place at a Manhattan restaurant. They there decided that future narcotic importations would be in trunks with false bottoms rather than in valises. That month, appellant Vito Agueci went to Italy, for what he claimed was a visit to his aged parents. The Government, of course, places a different interpretation on the facts and points out that this was not the only purpose to be reasonably inferred from this trip, for proof was introduced that in May of that year, Vito Agueci wrote a letter from Italy to Palmeri, telling him that a trunk and a valise would be brought into this country on June 2, 1960, and that Palmeri should be there to pick them up. Rinaldo accompanied Palmeri to the pier at that time; he later tested the packages secreted in the trunk and valise and found them to contain heroin, weighing fifteen kilograms.
Notification of the next shipment came quickly upon the hells of the June 2 importation. In July, Palmeri received a letter from Salvatore Valenti, the Italian "travel agent", informing him that appellant Rocco Scopellitti was to arrive from Italy on August 10. On that morning, Palmeri was contacted by Albert Agueci, appellant's brother and member of the executive group, who told him that Scopellitti worked for him and was to be fully trusted. At the pier, Scopellitti and Palmeri loaded the trunk into Palmeri's truck and drove back to the bakery. En route, Palmeri asked Scopellitti when he was returning to Italy and Scopellitti replied that he would go whenever Albert Agueci wanted him to pick up another trunk. When they reached the bakery, they were greeted by Rinaldo, who had earlier been instructed by two members of the executive group that he was no longer to accompany Palmeri to Pier 84 but was to wait for him at the bakery. Palmeri introduced Scopellitti, telling Rinaldo that Scopellitti was "all right", and that he had made the trip from Italy with the trunk; Scopellitti, to dispel any further doubt, said "Don't worry. I know what it's all about." The three proceeded to rip open the false bottom of the trunk which revealed packages of heroin.*fn7 Rinaldo took the packages to his home; he tested them and found them to contain heroin.
While these two shipments of June and August 1960 were being planned and consummated, Rinaldo was making further sales at the behest of the executive group. In late May, Caruso told him to meet with appellant Charles Shiffman at the Roosevelt Raceway, which Rinaldo did. A night or two later, Rinaldo was introduced to appellant Charles Tandler. It was there agreed that Shiffman would transmit certain code phone calls to Rinaldo, whereupon Rinaldo would meet with Tandler at an appointed rendezvous for the purpose of selling him narcotics. Pursuant to this plan, Rinaldo delivered three kilograms of heroin to Tandler shortly after this meeting at the racetrack. Three kilograms were again delivered to Tandler on August 13 and four more in early October. On October 10, Shiffman and an associate paid Rinaldo $25,200 for the last sale to Tandler, and Rinaldo turned the money over to Caruso.
The fifth shipment of narcotics was again preceded by a letter from Italy, informing Palmeri that a trunk would arrive on September 2. Palmeri drove to Pier 84 but was unable to claim the trunk because he could not find the immigrant who had shepherded it from Italy. After some frantic phone calls and some impatient days of waiting, it was finally learned that the claim check and the keys to the trunk could be found at a given address in Garfield, New Jersey. Palmeri procured the check and the keys, and was prepared to set out for the pier when he found that his truck was not in working order. Albert Agueci previously had informed Palmeri that in case of such difficulties he should contact Filippo Cottone, one of the appellants. Palmeri did so and told Cottone that he needed his help to get down to the pier to pick up a trunk containing narcotics; he promised Cottone $300 for his services. En route from the pier back to the bakery, Cottone was critical of Palmeri and his associates for the mishandling of the pickup of the trunk. "I can't understand * * * how you people do things, it is ridiculous"; he added that there had been no trouble with the other shipments. At the bakery, where Rinaldo was again waiting, Cottone was introduced by Palmeri, who endorsed him as being "all right". The three ripped open the trunk's false bottom, which contained ten packages of heroin. Cottone took away one of the blankets in which three kilograms of heroin were concealed but which Palmeri had overlooked; these were soon retrieved by Palmeri. Rinaldo again tested samples and found heroin.
Vito Agueci, during the month of September 1960, took a second trip to Italy. From there, he notified Palmeri that another shipment was due October 21st, and Palmeri in turn notified Rinaldo. Rinaldo relayed the message to Porcelli in a conversation with him in Mount Vernon. Shortly before the narcotics were to arrive, Caruso of the executive group informed Rinaldo that the woman who ran Palmeri's bakery was growing suspicious; all future imported trunks were therefore to be taken directly from the pier to Rinaldo's house. Palmeri was informed of the new routine, and on October 21 both he and Rinaldo went to Pier 84 and picked up what was to be the last shipment of narcotics. It was en route to Rinaldo's home in Mount Vernon that both men were arrested by Westchester County police and federal narcotics agents. The trunk they were transporting was found to contain ten kilograms of what was determined by United States Government chemists to be heroin.
We shall first consider nose contentions raised by the appellants which affect all or several of them; we shall then proceed to discuss those contentions specifically raised on behalf of particular defendants.
THE CONSPIRACY INSTRUCTION
The appellants challenge the propriety of the trial court's instructions regarding the scienter necessary to a finding of conspiracy to violate the federal narcotics law, specifically, 21 U.S.C. § 174. Even assuming that defendants may be heard to complain despite their failure to call the alleged error to the judge's attention, see Screws v. United States, 325 U.S. 91, 107, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945); United States v. Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 80 L. Ed. 555 (1936); United States v. Massiah, 307 F.2d 62 (2d Cir., 1962), we hold that Judge Herlands adequately covered in his charge all the elements necessary to warrant a finding of guilt for participation in a narcotics conspiracy. He charged as follows:
"Count 1 of the indictment charges that each of the defendants on trial conspired to violate the Federal Narcotic Laws. In order to convict under the first count of the indictment, you would have to find:
"First: that sometime between September 1, 1958 and May 22, 1961, in the Southern District of New York, a conspiracy to violate the narcotic laws existed between any one of the defendants on trial and any other defendant, either on trial or not on trial, or any co-conspirator named in the indictment.
"Second: you would have to find that it was part of this conspiracy to do any one of the following:
"a. Unlawfully import and bring large amounts of narcotic drugs into the United States from Italy; or
"b. To receive, conceal, buy, sell and facilitate the transportation, concealment and sale of large amounts of narcotic drugs after they had been imported and brought into the United States, knowing that the said narcotic drugs had been brought into the United States illegally; or
"c. To dilute, mix and adulterate large quantities of the said narcotic drugs prior to distribution.
"Third: In addition to your finding that there was a conspiracy, and that it was part of the conspiracy to do one of these three things just enumerated, you would have to find that at least one of the 14 overt acts charged in the indictment was actually committed * * *.
"The fourth and final element you would have to find as to each of the defendants is that he knowingly became a member of the conspiracy." (Emphasis added.)
This instruction made it plain beyond challenge that the crime charged was a conspiracy to violate the narcotics law and that requisite to a finding of such violation is knowing participation in a scheme having as an objective the importation of narcotics contrary to law, or the knowing transportation or facilitation of sales of narcotics after they have been knowingly brought into the country illegally, or the knowing adulteration of those very narcotics. It is thus clear that United States v. Massiah, 307 F.2d 62 (1962), recently decided by this Court (Chief Judge Lumbard dissenting) - even assuming its correctness - is not in point. The fatal error in the judge's instruction in Massiah was his failure "at any point in his charge on the conspiracy count to instruct the jury that knowledge of illegal importation was a necessary element of the conspiracy" to violate the narcotic laws. 307 F.2d 70. (Italics in the original). There the trial judge devoted his instructions to those ...