Before FRIENDLY, SMITH and MARSHALL, Circuit Judges.
Appellants from conspiracy convictions too often remind us of Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946), and of Mr. Justice Jackson's concurrence in Krulewitch v. United States, 336 U.S. 440, 445, 69 S. Ct. 716, 93 L. Ed. 790 (1949), in instances where the reminder is inapposite. But a few facts will show in what degree the instant case gives point to Mr. Justice Jackson's description of conspiracy as "that elastic, sprawling and pervasive offense," whose development exemplifies, in Judge Cardozo's phrase, the "tendency of a principle to expand itself to the limit of its logic" - and perhaps beyond.
This indictment was filed August 15, 1962. The applicable statute of limitations is five years, 18 U.S.C. § 3282. The conspiracy is alleged to have begun in 1950 and to have lasted until 1959. The only acts of participation proved as to one appellant were in 1951. As to others there was no evidence of participation later than 1955. Two who first appear in 1958 were found to have been in "partnership in crime," Pinkerton v. United States, 328 U.S. 640, 644, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946), with those who, so far as the proof shows, left the stage seven and three years before. Tacitly recognizing inclusion of all the appellants in a single conspiracy to be something of a tour de force, the Government contends in its able brief and argument that the convictions are buttressed by impressive authority and impeccable logic. The conspiracy, it says, was continuous as regards at least some of the principals; each participant is presumed to have been responsible for all that would ever go on, or that ever had; and he could terminate this responsibility only by making a clean breast to the authorities or by informing his colleagues - mostly unknown to him - that he was through. The appeal thus demands an examination of the application of the law of conspiracy to the long continued conduct of an illicit business. We have concluded that the case required a more carefully defined submission to the jury than the Government sought and obtained. For this and other reasons discussed below we reverse the convictions and direct a new trial.
I. The Government's Evidence
The burden of the Government's case was borne by Salvatore Rinaldo, also its principal witness in United States v. Agueci, 310 F.2d 817 (2 Cir. 1962), cert. denied, 372 U.S. 959, 83 S. Ct. 1013, 10 L. Ed. 2d 11 (1963). His testimony can be summarized as follows, postponing a few matters that will be mentioned where appropriate, and eliminating many details which are not here essential as they relate primarily to members of the conspiracy not involved in this appeal.
In the summer of 1950, Rinaldo met with Rosario and Joe Mogavero and Carmine Locascio, who wished him to travel to Italy to bring back "some junk." The trip was made around the turn of the year; Rinaldo paid $50,000 for the heroin. Rosario and Locascio then hired him to make deliveries, at a fee of $100 per package. Upon instructions from Rosario or Locascio, Rinaldo would pick up heroin at the "plant" - initially a machine shop, later Joe's home - and would make deliveries, typically of two or three kilos, to various wholesalers, including Tantillo, Cinquegrano and Borelli, who made their payments without using the agency of Rinaldo.This activity continued for some time with minor variations not here material. In December, 1953, Rosario began serving an eight-year New York state sentence for extortion. At a farewell meeting he said that "in the future I [Rinaldo] was to take orders from Joe Mogavero and Carmine Locascio, and to act just like I had acted before; just that I would be taking orders from Joe Mogavero, but they would be just like coming from him."
Business continued much as theretofore.In June, 1954, Locascio introduced Rinaldo to one Jimmy Jerome, who later presented his runner, Mike Sedotto; Rinaldo began making deliveries to Sedotto. Another 1954 development was the deportation of Salvatore Caneba, the local representative of the Italian source of supply. In August, 1954, Locascio and Joe Mogavero introduced Rinaldo to a new connection, appellant David "Pop" Smith, from whom Rinaldo made large pick-ups, followed by deliveries, inter alia, to Borelli, Cinquegrano and Sedotto. The next year, 1955, saw the reestablishment of the Italian source of supply, although Smith also continued to be a provider.
Some of the heroin imported from Italy in the spring of 1955 proved to be impure; it would not dissolve or go through a needle. Sedotto returned a lot that he had picked up for Jerome. A second delivery from Italy in August 1955 was again a mixed batch - some of the heroin was pure, some not. Joe Mogavero and Locascio continued operations with the pure Italian heroin and with supplies obtained from Smith, but 42 kilograms of bad heroin became an albatross around the business' neck. Rinaldo made a trip to Italy to pay the Canebas a reduced price for the impure heroin. Their contention that they were entitled to $50,000 more than Rinaldo's principals were willing to pay led them to insist that any future dealings must be on a cash on delivery basis.
On Locascio's instructions, confirmed by Joe Mogavero, Rinaldo gave the former 20 kilograms of the impure heroin in May, 1956; Joe and Locascio had agreed to "try to get rid of the stuff separately * * * It was too much, anyway, to be keeping in one place." In the ensuing months Joe and Rinaldo labored mightily to purify the 22 kilos of impure heroin which Joe had kept. In June or July, 1957, Joe told Rinaldo he had spent between $100,000 and $150,000 of Rosario's money and wanted to get moving again. In September or October, he explained that he was negotiating with appellant Loiacano for the sale of the 22 kilos; he later confided that Rosario had instructed him not to be sticky about the price. In December, 1957, Joe introduced Rinaldo to Loiacano and the latter's runner, appellant Sancinella, and instructed that deliveries of the impure heroin were to be made to the latter. Rinaldo made about seven such deliveries, the last in March, 1958.
The next chapter began shortly thereafter. Around April, 1958, Joe Mogavero and Loiacano, now risen to partnership rank, told Rinaldo they would have to get a new source of supply; the contact was to be Charles Di Palermo, a name frequently encountered in cases of this sort, but the place of delivery was uncertain. About May or June, Rinaldo was introduced to appellant Garibaldi whom Joe and Loiacano presented as the "fellow who would pick up the goods that I was getting." In July, Rinaldo was told to go to Miami to take delivery of heroin that was being brought in by ship. Di Palermo was there and sold him seven kilos. Rinaldo returned to New York and delivered these to Garibaldi against payment of $35,000 in small bills, which he took to Joe and Loiacano. Later Rinaldo made pick-ups from a new source of supply, Freddy Eppolito; these also he delivered to Garibaldi. In September, while making further deliveries, Rinaldo complained to Garibaldi about receiving payment in small bills; the latter replied "that was the way he was getting the money from Borelli, and that's the way he was going to give it * * *" to Rinaldo. He also volunteered that it was he who had purchased Locascio's share of the impure heroin.
The last appellant to appear is Castiglia. Described as "Mickey Blair", he was introduced by Joe Mogavero to Rinaldo in November, 1958, as one who in turn would introduce a future deliverer of heroin. On several occasions between December, 1958 and March, 1959, through Castiglia's intercession, Rinaldo took deliveries from one Ralph; he in turn delivered to Garibaldi or Castiglia. The relationship between Rinaldo and his associates terminated in March, 1959, in a quarrel about money. Rinaldo thought he was to be a partner in the operations begun in 1958. Joe repudiated the suggestion, saying he had "spent all the cash that belonged to his brother, Saro, and the only way he could get even is if I [Rinaldo] wanted to work at $200 a kilo * * *" On Rinaldo's questioning whether this harsh attitude to him had Rosario's sanction, Joe said he had talked to Rosario "about this, and his brother gave him the okay to do anything he wanted."
Although the Government supported Rinaldo's testimony with evidence confirming his comings and goings and showing the existence of a secret closet in Joe Mogavero's apartment, the only other directly inculpatory evidence was the testimony of Sierra, relating to Sedotto, and of Ager, relating to Smith. Sierra, who had been in prison since 1957 on a federal narcotics conviction, testified to purchases of heroin in 1955 and early 1956 from Jimmy Jerome, with the deliveries being made by Sedotto. Some of this heroin was impure; consequent unpleasantness led to an interruption of contacts. These were renewed in July and August, 1956, and then again in December, 1956, and Sedotto engaged in several of them. The coincidence of dates and the impurity of part of the heroin afforded some basis for concluding that these deliveries were of heroin emanating from Joe Mogavero or Locascio. Ager, under indictment for a federal narcotics offense, testified that in May or June, 1954, at his father's instance, he received a "16 unit" suitcase from Charles Bourbonnais which he delivered to Smith, who later gave him bags of money. This process was frequently repeated through 1955 and 1956, with Smith making numerous payments of about $40,000 at the rate of $5,000 per unit. Late in 1956, Smith complained of the quality. This ...