The opinion of the court was delivered by: WEINFELD
WEINFELD, District Judge.
This case has been tried to the court, the defendants having waived trial by jury. Those on trial are Alvin Beigel, Joseph Lapi, Anthony Cutillo and Anthony Verzino. The indictment also named a fifth defendant, Vincent Soviero, but a severance was granted as to him.
The indictment contains three separate counts. The first charges all five defendants with a violation of sections 173 and 174 of Title 21, United States Code. The third count charges them with a conspiracy to violate the same sections. The second count charges the defendants with a conspiracy to violate sections 4705(a) and 7237(b) of Title 26 by the sale, barter, exchange and giving away of narcotic drugs not in pursuance of a written order on a form issued by the Secretary of the Treasury. The same overt acts are charged in each conspiracy.
The substantive count centers about a substantial quantity of heroin, more than two kilos, found upon the person of the defendant Beigel shortly after 3 a.m. on March 22, 1963. The government charges that this episode and events preceding it involved not only Beigel, but the other defendants, and were the final act in the conspiracies. Thus, we go back to earlier events to fill out the entire picture.
The case is rather unique in that it does not follow the now familiar pattern of evidence in narcotics cases. The government does not rely upon the testimony of any undercover agent who allegedly engaged in a direct transaction with one or more of the alleged co-conspirators, nor of any informer who introduced a government agent to defendants or was present at any claimed transaction. With the exception of the final incident on March 21-22, 1963, when heroin was found upon Beigel, the evidence submitted to support the charges consists of overheard conversations and acts and conduct which do not involve any direct sale of narcotics, but which the government alleges nonetheless fully establishes that the defendants were acting in concert to violate the narcotics laws.
The opening scene occurs on February 5, 1963 at the Dawn Food Shop, located on Second Avenue, south of 51st Street, New York City, where Verzino is engaged in conversation with a "John Doe" who is never identified. According to Roy Cahill, a New York City detective and a member of a joint federal and state investigating group, Verzino stated to John Doe, "I told him $5500, no less," and after a break in the conversation, because the agent was unable to hear it, Doe said, "You know, you have to be careful in this business."
Soon thereafter Soviero, the defendant as to whom the indictment was severed, joined Verzino and Doe, and another officer, Francis Meehan, also a New York City detective, sitting alongside the trio, heard Doe ask, "Is it in the same place, in the ashtray," to which Soviero responded, "Yes, right behind the ashtray," whereupon Doe said, "I will see you tomorrow with the money." Doe then left the restaurant and was followed to Third Avenue and 47th Street, where he entered an old Dodge car, license plate QN 3613, and was observed, according to the agents, reaching down under the dashboard, following which he drove off. This car comes into the picture again on February 21, 1963.
Later that evening, February 5, still according to government testimony, at another restaurant, the Joker, located on East 49th Street, the defendants Verzino and Soviero were again overheard, this time by Chantland Wysor, a federal narcotics agent, who was seated alongside of them at the bar. Verzino, in answer to a question or statement by Soviero, stated, "For that guy we charge 7500," to which Soviero replied, "That's right," and then asked, "Did Al mix the stuff good," to which Verzino responded, "Yes, he mixed it three to one and it's still dynamite." The narcotics agent testified that three to one is the argot of narcotics traffickers for dilution of heroin, and means three parts of an adulterant to one part of heroin, and dynamite indicates the high quality of the drug. "Stuff" is accepted jargon in the illicit drug world for narcotics.
The next incident in the development of the government's case occurred about 9 p.m. on February 21, again at the Dawn Food Shop. Present there were Verzino, Soviero and Beigel, who were soon joined by the same John Doe described in the incident of February 5. After a conversation, Verzino and Doe crossed the street to a parked car, from the trunk of which Verzino removed a large package which he handed to John Doe, following which Verzino rejoined Soviero and Beigel. Soon thereafter Beigel left the codefendants and was observed driving away in the old Dodge car, bearing license plate QN 3613, the same car which John Doe had driven away on February 5, when he had leaned under the dashboard. Later that evening Beigel returned to the area, and after conversing briefly with Verzino and Soviero, drove off, but this time in a tan Buick car. He was followed by surveillance agents over the Queensboro Bridge into Queens, where the trail was dropped.
Federal agents and the New York City police authorities were engaged during this period in active surveillance of all the defendants. On February 28, at about 10 p.m. at the I.D. Lounge, located on 58th Street near Second Avenue, New York City, Verzino and Soviero were again overheard. According to narcotics agent James O'Connell, who was seated near them, Soviero said, "I called his place and left a message for him in case he calls. I told him to stay where he is and Al will meet him and deliver - bring the stuff." Where upon Verzino said, "Suppose he leaves," and Soviero replied, "He will probably go to his place, and she'll tell him to go back." Verzino then said, "How come Al is late," and Soviero replied, "He had that delivery at 8 o'clock." The defendants engaged in other conversation, but this was the only portion heard.
About an hour and a half later Beigel, who had been under fairly constant surveillance that day, joined Soviero and Verzino at the I.D. Lounge and after conversing with them left and proceeded over the 59th Street Bridge into Queens, where surveillance was dropped.
The next significant date in the government's proof was March 14, 1963. Beigel had been followed from his home in Brooklyn to the vicinity of 58th Street and Second Avenue, New York City, where he met the defendant Soviero, after first parking a Rambler car in which he had driven from his home. He later moved the car to East 62nd Street, where in his absence an investigating agent dusted a fluorescent powder on the door handle. When Beigel re-entered the Rambler some time later he was followed to 37-41 79th Street, Queens, where agents, testing all the doorknobs in the building with a fluorescent light, got a positive reaction from the doorknob of apartment 2C, indicating the presence of the same fluorescent powder which had been placed on the handle of the Rambler car on East 62nd Street earlier that evening. The government also offered proof that Beigel had rented the car the day before from All Boro Car Leasing, Inc. on a daily basis.
Events came to a climax one week later, March 21, when for the first time the defendants Lapi and Cutillo, according to government witnesses, entered the picture, as a result of which they, too, were charged as co-conspirators and participants in the substantive crime. At about 7:30 that evening a Rambler car, but bearing a different license plate number from the one seen a week earlier, was observed on York Avenue between 60th and 61st Streets, Manhattan. It was not known who had parked the car there, but the evidence indicates it had been rented that day by Alvin Beigel from the All Boro agency, the same company from which he had rented a Rambler car the week before.
Soon after it was first observed, according to government witnesses, Verzino and Soviero drove by in a Jaguar car. As they approached the parked Rambler, they came to an almost complete stop, looked at the Rambler and continued on their way. About 8:30 p.m., approximately an hour later, surveillance officers testified that the defendant Lapi entered the Rambler and drove off. Whether or not Lapi is the man who drove the car and participated in the acts referred to hereafter is one of the vital issues in the case. In any event, the Rambler car was driven by a circuitous route to the south side of 58th Street, west of Sutton Place, and parked there.
Lapi, according to government witnesses, then proceeded on foot in the direction of the Cheer Club, located on Second Avenue between 57th and 58th Streets. Surveillance was established across the street, at which point at least one officer had binoculars. Lapi, over the period of the next several hours, was observed in and out of the Cheer Club, apparently looking for somebody. Meanwhile a government agent had looked inside the Rambler car with a flashlight, but had observed nothing on the seats or floor. Finally, at 12:10 a.m., now March 22, a blue Buick car, bearing New Jersey license plate number HDD853, double parked near the Cheer Club. In addition to the driver, an unidentified individual described as another John Doe was also seated in the front of the car.
The government contends the driver of the Buick car was the defendant Anthony Cutillo. Again, whether Cutillo was the driver is a vital and challenged issue.
Detective Cahill, one of the surveillance agents, testified that he stood near the double parked car and heard Lapi ask the driver, whom Cahill identified as Cutillo, "What happened to you? We got them hung up," to which Cutillo responded, "I got hung up myself." Lapi also asked about the passenger in the car and was assured by Cutillo he was "all right."
Lapi then entered the Buick, was seated in the rear, and the car was driven to 58th Street and Sutton Place, where it was double parked toward the northerly side of the street, about a car length to the rear of the Rambler, then adjacent to the southerly curb where Lapi had previously parked it. According to various government witnesses, the driver handed a brown paper bag, about 15" X 15", to Lapi who, with the bag in his hand, got out of the double parked Buick, crossed over to and opened the door of the Rambler car, closed it and no longer had the bag. He then walked to the corner to which the Buick car had proceeded in the meantime, entered it and was driven to First Avenue, where he got out. The car then proceeded up First Avenue to the 60's, where surveillance was discontinued.
During this time the still parked Rambler car was kept under constant surveillance by federal agents and city police. Several hours later, at 2:15 or 2:30 a.m., March 22, Beigel, according to government witnesses, entered the Rambler and drove to the area of 37-41 79th Street, where he parked and was observed leaving the car carrying a brown paper bag similar to that placed in the Rambler car at about 12:10 a.m. Beigel then entered the building at 37-41 and, after he had inserted the key in the lock of the door to apartment 2C and was at the threshold about to enter, was placed under arrest by New York City detective Cahill. The brown paper bag, openly exposed and still in Beigel's hand, was seized from him by Cahill. He was immediately joined by other federal and city officers and a search was made of apartment 2C, in which was found a traveling suitcase, the contents of which included bags containing two kilos of heroin and full narcotic cutting equipment and paraphernalia for packaging narcotics for distribution to the retail trade. The bag found on Beigel's person also contained about two kilos of heroin.
This, in broad outline, constituted the government's case. Upon its close each defendant moved for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. Assuming the truth of the government's evidence, and giving it the benefit of all legitimate and reasonable inferences to be drawn therefrom,
their motions were denied, except that (with the consent of his counsel) decision was reserved on Verzino's motion with respect to count 1, the substantive count. Thereupon, the defendants went forward.
The defendant Verzino entered a blanket denial that he had committed the crimes charged in the indictment. He categorically denied he had conspired either with any defendant upon trial or with the defendant Soviero; he denied participation in the substantive offense; he ...