Before CLARK, WATERMAN and KAUFMAN, Circuit Judges.
The appellants were convicted of conspiracy to violate the federal narcotics laws, 21 U.S.C. § 174, after a five-week trial in the United States District Court for the District of Connecticut before Judge Timbers and a jury. The three appellants, in addition to several other individuals, were named in a one-count indictment charging a conspiracy to import unlawfully into this country large quantities of heroin and knowingly to receive, conceal, buy, or sell such heroin subsequent to importation. The fourth defendant in the court below, Joseph Cahill, was tried in absentia and is not before this Court.
We reverse the conviction of Ralph Cianchetti and order that the indictment as to him be dismissed. We affirm the conviction of Charles Hedges. The conviction of Molly Schau is reversed, and we remand for a new trial.
The conspiracy charged and proved by the Government to the satisfaction of the jury was designed essentially to secure furtively the importation into this country of heroin from Europe, more particularly from Marseilles, France, and to distribute and sell the heroin in this country. Marseilles was the headquarters of the three Aranci brothers - George, Joseph, and Marius, the last of whom was affectionately known as the "Old Man" - and their assistant, Georgette "Jackie" Arrassus, who acted as contact and interpreter for the English speaking co-conspirators. The two chief government witnesses were Clarence Aspelund and Theodore Warycha, merchant seamen, who were the transatlantic links in the chain of importation - the latter in his capacity as a special employee of the Government. Throughout most of the period here relevant, 1955 through 1960, Aspelund would receive periodic communications from the Arancis, with whom he would usually rendezvous and from whom he would receive the quantities of heroin. These he would bring into this country via New York or Hoboken and transfer them, allegedly to one of the appellants: in 1955, to Molly Schau; and during 1958 and 1959, to Charles Hedges. Warycha, Aspelund's replacement in mid-1960 and a special employee of the Government, attempted to arrange for delivery to Ralph Cianchetti. That, in brief, is the conspiratorial picture.
In 1952, Neil Schau, husband of appellant Molly Schau, introduced Aspelund to Marius Aranci in Marseilles, and it was agreed that all were "to do business" together. Between that time and some date in 1955, Aspelund smuggled heroin from Marseilles to Neil Schau in New York. In early 1955, with Neil Schau critically ill, his wife Molly asked Aspelund to determine whether the Arancis would be willing to deliver heroin to her instead. After securing the consent of the "Old Man", Aspelund made several deliveries to Molly in 1955, the last of which took place between December 22nd and 25th of that year. This was the last delivery, not because it was agreed to be such, but because Molly Schau is alleged to have absconded with the heroin delivered at that time and to have refused to make payment for it.
Somewhat distraught that he could not make full payment to the Arancis for the shipment of December 1955, because of Molly Schau's conduct, Aspelund made no further arrangements with them until shortly before April 1956. At that time the "Old Man" informed him that there was to be a new "connection" in New York, who was to identify himself by producing one half of a torn French 100 franc note. The other half was given to Aspelund by the "Old Man." In April 1956, Aspelund made contact in New York with defendant Joseph Cahill, and arrangements were made and soon consummated for several future deliveries. An associate of Cahill, appellant Hedges, was introduced to Aspelund in September or October of 1958, and Hedges was actively involved in the receipt of heroin from that time until July 1959. The first delivery to Cahill which was conducted in Hedges' presence was initiated by a transfer of money to Aspelund; but the payment was less than the required sum. Cahill sent Hedges to "get that money," and Hedges obliged. Upon receipt of the full amount, Hedges was sent out to retrieve the package of heroin which had been locked in Aspelund's car. Further deliveries were made to Cahill and Hedges in 1959, the last in September. At this time, there was a shortage in payment, followed by a phone call from Hedges to Aspelund requesting the return of $5000 because of the inferior quality of the heroin just delivered
Aspelund was arrested in April 1960 and the following month Theodore Warycha, a neighbor of Aspelund and a shipmate and acquaintance for seven years, agreed, in Aspelund's presence, to assist the Government in the role of a special employee. Warycha made contact with "Jackie" Arrassus and, through her, with the Aranci brothers. Warycha was told by the "Old Man" that he, Warycha, would be acceptable as a courier to deliver heroin "to somebody in New York, that he thinks he has a connection. He is not sure." One half of a French theatre ticket was given to Warycha and, in August 1960, after his return to the United States, he received a telephone call from and arranged a meeting with appellant Cianchetti, at which meeting Cianchetti produced the other half of the theatre ticket. During their meeting, on September 1, 1960, Cianchetti informed Warycha that he had known the Arancis for thirty years and had been offered large quantities of heroin by the "Old Man". He also told Warycha of the difficulties in distributing heroin upon its reaching this country, and cautioned him about dealing with racketeers and strangers who might fail or refuse to pay. Cianchetti made known that he was presently the object of a deportation or other citizenship proceeding and therefore could "do nothing at all * * *. I can go no place * * *. I can't move." He nonetheless arranged for the location and method of some future meeting, and agreed to be ready should Warycha call.
Warycha did call, on October 17, 1960, after bringing another shipment of heroin into this country. Cianchetti met him in Hoboken, and upon being told that the "Old Man" had sent him three kilos of heroin, Cianchetti responded, "Oh, oh, no. Are you crazy or something? You make a mistake. There is something wrong * * *. I'm in a hot spot and people over there know I'm in a hot spot." Moments later, over a cup of coffee, Warycha threatened to find another buyer for the heroin, at which point Cianchetti relented somewhat, asked how long Warycha would be home, and told him that he might be able to help him out. After noting that the packages would have to be tested, Cianchetti took leave, saying, "Well, probably you'll hear soon." Warycha never heard from Cianchetti again.
We shall first consider those contentions raised on behalf of particular appellants; we shall then proceed to examine those contentions which affect all of the appellants.
Cianchetti. Appellant Cianchetti, for purposes of this appeal, does not contest the Government's proof that a conspiracy existed or that Cianchetti had knowledge of its operations. He argues, however, that there was insufficient evidence to warrant the conclusion that he entered, participated in, or furthered the conspiracy. We agree, and we therefore reverse his conviction and dismiss the indictment as to him.
There is little doubt that Cianchetti knew of the Marseilles group, for he admitted to Warycha in their conversation in September 1960 that he had known the Arancis for thirty years and that they had offered him large quantities of heroin; moreover, he discussed with Warycha the problems of distribution and of securing prompt and full payment. But knowledge of the existence and goals of a conspiracy does not of itself make one a coconspirator. There must be something more than "[mere] knowledge, approval of or acquiescence in the object or the purpose of the conspiracy * * *." Cleaver v. United States, 238 F.2d 766, 771 (10th Cir., 1956). This "something more" is generally described as a "stake in the venture." "[In] prosecutions for conspiracy * * * [the defendant's] attitude towards the forbidden undertaking must be more positive. * * * he must in some sense promote their venture ...