Before WATERMAN and KAUFMAN, Circuit Judges, and DIMOCK, District Judge*fn*
Angelo Moret and his wife Augustine appeal from judgments of conviction entered on February 8, 1963 in the United States District Court for the Southern District of New York after a five day trial before Judge Edmund L. Palmieri and a jury. The indictment charged that appellants received, concealed, sold and facilitated the transportation, concealment and sale of illegally imported heroin, in violation of Title 21 of the United States Code, Sections 173-174. Both appellants were found guilty and each was sentenced to the mandatory minimum of five years in prison.
The evidence against appellant Angelo Moret was overwhelming. He was identified by the buying agent as the man who sold him for $325 white powder which was represented and later proved to be heroin. Points urged with respect to alleged inconsistencies in the testimony or reports of the narcotics agents and with respect to the fact that the Government did not call the informer are without merit.
The evidence with respect to Augustine Moret presents a different picture.
The purchase was made on the second floor of 68 East 112th Street in the Borough of Manhattan, City of New York. That is on the south side of 112th Street four doors west of Park Avenue. Two narcotics agents had the entrance under surveillance from an automobile parked on the west side of Park Avenue just north of its intersection with 112th Street. The lot on the northwest corner of Park Avenue and 112th Street was vacant and surrounded by a wire fence. The agents with the aid of binoculars were looking at the entrance to number 68 through the windshield of the car and the wire fence. There was testimony that the entrance was from 60 to 70 feet away. Their testimony is summarized in the following paragraph.
The Morets drove up in a white Chrysler car from the west and passed the doorway of number 68 and stopped. They got out, Augustine from the right and Angelo from the left. She walked toward the entrance of number 68 and he followed about a foot behind and to her left. She got up on the step of number 68, stopped a moment and took something from the front of her person with her left hand. The backs of both Morets were turned to the agents so that they could see nothing in front of Augustine. She then handed something with her left hand to Angelo and he put it in his right trouser pocket. This was consistently described as a flat white package. One agent estimated its size as 3 1/2 X 3 1/2 inches and the other 4 by 4 inches. When one of the agents was asked "Could you tell whether the package was translucent, transparent, or opaque" he replied "No; all I could tell was it was white in appearance."
There was testimony by a third agent that he made the purchase inside of number 68 immediately after the entrance of Angelo and Augustine and that Angelo took from a trouser pocket, which the witness said he believed to have been the right one, a double glassine envelope, which the witness said he believed to have been one inch by one inch and could have been held in the palm of the hand. This, the witness said, contained a white powder. On weighing and analysis this proved to be a little more than half an ounce of heroin.
The court charged the jury that the evidence as to Augustine stopped when she got inside the building and that she must be found guilty or innocent on the basis of their findings with respect to what happened in front of the building.
The case against her thus rested on the identity of the something that she was said to have given Angelo and the something which Angelo extracted from his trouser pocket.
Augustine took the stand and denied the whole story.
Her counsel moved for judgment of acquittal at the end of all the evidence and the motion was denied.
While the evidence of identity was weak, it was strong enough to support the verdict. A double glassine envelope an inch square containing a half ounce of heroin would not much resemble a white package 3 1/2 or 4 inches square when seen through binoculars at 60 feet. Nevertheless, to support the verdict, we are not forced to conclude that the package and the envelope were the same. Consistently with the testimony, the envelope may have been delivered by Augustine to Angelo with the package or inside of the package and may have been put by Angelo in his righthand trouser pocket and then by him taken from that pocket. The jury might have found that the male defendant with a single motion took the glassine envelope from the white package and from his trouser pocket.
The court's charge did not restrict the jury to the theory that the white package and the glassine envelope were identical. Indeed, at no point ...