Lumbard, Chief Judge, Kaufman, Circuit Judge, and Feinberg, Circuit Judge.*fn*
Four defendants appeal from convictions of violating the conspiracy provision of the federal narcotics laws, 21 U.S.C. §§ 173, 174. The single-count indictment named twenty-eight co-conspirators, twelve of whom were charged as defendants. The trial was originally scheduled to begin on April 27, 1965, with eight of the named defendants; the remaining four had not yet been apprehended. On that morning, two of the defendants became fugitives, requiring a one-week continuance. The trial of the other six defendants began on May 3, 1965 before Judge Bonsal and a jury.*fn1 On June 22, 1965, the jury convicted appellants Joseph Armone, Stephen Grammauta, Vincent Pacelli and Nicholas Viscardi, and acquitted Alfred Armone and Alexander Schoenfeld. On July 29, 1965, Judge Bonsal sentenced Joseph Armone to fifteen years, Grammauta to eight years, Pacelli to eighteen years, and Viscardi to five years.*fn2 We affirm the convictions as to all four appellants.
Since the main arguments in this court are not directed to the sufficiency of the evidence, the facts developed at the seven-week trial will not be outlined in detail.*fn3 Viewing the government's case after a jury verdict of guilty in the light most favorable to the prosecution, as we must, it was, briefly, that appellants, together with the co-defendants and co-conspirators, conspired from 1956 through 1960 to import and distribute heroin in the United States. The drugs originated in France, and would be smuggled into this country with the aid of couriers, who usually travelled as part of their occupations. For example, Clarence Aspelund, a seaman, would transport heroin for exporter Marius Aranci in Marseilles, and Charles Bourbonnais, a flight purser, would bring in the drug for Felix Barnier in Paris. Mauricio Rosal, a Guatemalan ambassador, and Etienne Tarditti, a French businessman, also acted as couriers for Barnier.
The couriers initially delivered the drugs, once in this country, to Joseph Cahill, whose base of operations was New York City; eventually, Charles Hedges and Nicholas Calamaris took Cahill's role. Joseph Armone, one of the importers, would direct the eventual sale of the drugs to domestic wholesalers Vincent Pacelli and Michael Ricucci. Stephen Grammauta and Arnold Romano were also importers. Nicholas Viscardi acted as a storer of the narcotics pending delivery to wholesalers.
Many transactions were detailed at the trial. In 1956, Aspelund met Cahill in New York, and thereafter reported to his principal (Aranci) that Cahill had requested narcotics. A six or eight kilo delivery, by way of Norfolk (because of complications in the New York harbor), was the fruit of this meeting. For the next three years Aspelund would bring in heroin for Cahill about three times a year. Bourbonnais would also bring in narcotics for Cahill, several kilos at a time; both couriers were paid by Cahill. Hedges, meanwhile, became a domestic deliverer for the latter, and was introduced to the conspirators' rendezvous at the Amvets Club; he was eventually promoted to direct dealings with the couriers.
Heroin from Pierre Roulet, an airline steward, would be taken by Hedges at first to Cahill's apartment, and later on to his own, where it would be picked up by Viscardi. Hedges would also deliver to various automobiles under the control of conspirators. In 1958, Hedges was introduced to Pacelli, and arrangements were made for deliveries directly to him by Hedges. In November 1958, Hedges made a delivery to Grammauta, who drove off with Viscardi.
On occasion, Hedges would meet with Joseph Armone at the Amvets Club to discuss some aspect of the dealings with the exporters' couriers. Payments from wholesalers were often turned over to Armone or Grammauta by Hedges, as the latter became involved in sales by the importers. Pacelli would sometimes furnish an automobile for Hedges's transportation. Hedges would pick up heroin at Viscardi's apartment, where it had been stored, for delivery to wholesalers, and he became a liason between Armone and Pacelli. James Godwin, referred to in testimony quoted below in connection with the overt act problem, was Hedges's cousin; Godwin was often a witness to parts of the transactions involving Hedges and Pacelli.
During a lull in 1959-1960, Armone told Hedges that they would "get started" soon after a few things were "straightened out." Activity began again in February 1960, when Pacelli asked Hedges if he could obtain some heroin. Hedges relayed the request to Armone, who complained that Pacelli was not paying in advance, or a high enough price. Armone eventually relented and the transaction was consummated. A few months later, Hedges demanded more money from Armone for himself; the latter authorized an extra $50. In the fall of 1960, certain couriers were arrested; Hedges was convicted in the District of Connecticut in March 1961.*fn4 Godwin saw Armone that month in an attempt to raise collateral for Hedges's appeal bond. Armone said that he had no money; a few months later Godwin pointed out that unless Hedges was given some help, as in raising bail, he might cooperate with the government. Armone said that another conspirator had gone to prison and "kept his mouth shut and Charlie could do the same." In September 1964, the indictment in the present case was filed, and Hedges became the prosecution's leading witness.
The four appellants make various contentions on appeal. Their arguments will be considered under the name of the defendant primarily pressing the point. Those points raised by defendant Pacelli will be dealt with first; thereafter, to the extent that they have not already been covered, the arguments of Armone and Grammauta, made jointly, and Viscardi will be considered.
Pacelli first argues that the trial judge's handling of the statutory inference set forth in 21 U.S.C. § 174 violated his rights under the Fifth and Sixth Amendments. The words of the statute are:
Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.
This provision was held constitutional over forty years ago. Yee Hem v. United States, 268 U.S. 178, 45 S. Ct. 470, 69 L. Ed. 904 (1925); see Orozco-Vasquez v. United States, 344 F.2d 827, 829 (9th Cir. 1965); United States v. Sorenson, 330 F.2d 1018, 1021 (2d Cir. 1964), cert. denied, 380 U.S. 945, 85 S. Ct. 1027, 13 L. Ed. 2d 963 (1965). Referring to this section, Judge Bonsal told the jury that:
Section 174 further provides that if a defendant is shown to have had possession of the narcotic drug, such possession, unless the defendant explains the possession to your satisfaction, may be deemed by you sufficient evidence for you to infer his knowledge of the unlawful importation of the narcotic drug contrary to law.
The government contends, and each of the defendants denies, that each defendant had knowledge of the illegal importation of the narcotic drug. The government contends that the evidence shows that each of the defendants except Alfred Armone was shown to have had actual or constructive possession of the narcotic drug and that they have not offered an explanation as to their possession. You will recall that Section 174 which I just referred to, provides that if a defendant has actual or constructive possession of the narcotic drug, you may infer that he knew the narcotics were illegally imported into the United States unless he has given you a satisfactory explanation of his possession.
Pacelli did not testify at the trial.*fn5 He first claims that this charge was an adverse comment on his failure to take the stand, depriving him of his Fifth Amendment rights not to be compelled to be a witness against himself and of due process. Pacelli also argues that the charge created a presumption against him because he did not take the stand and thereby violated 18 U.S.C. § 3481.*fn6 Appellant relies heavily on the recent Supreme Court decision in United States v. Gainey, 380 U.S. 63, 85 S. Ct. 754, 13 L. Ed. 2d 658 (1965). That case dealt with a provision in the Internal Revenue Code, which the Court recognized as similar to section 174. United States v. Gainey, supra at 64-65 n. 2, 85 S. Ct. 754. The Code provides that the presence of a defendant at a site where the business of a distiller is being carried on unlawfully is sufficient to authorize conviction "unless the defendant explains such presence to the satisfaction of the jury." Int.Rev.Code of 1954, § 5601(b) (2). In affirming the conviction of defendant Gainey, the Court upheld a charge similar to that given by Judge Bonsal and specifically rejected the contention that the charge could "be fairly understood as a comment on the petitioner's failure to testify." United States v. Gainey, supra at 70-71, 85 S. Ct. at 759. Similarly, in United States v. Secondino, 347 F.2d 725 (2d Cir.), cert. denied, Massari v. United States, 382 U.S. 931, 86 S. Ct. 322, 15 L. Ed. 2d 342 (1965), this court relying on Gainey reached a similar conclusion with respect to section 174. See also United States v. Christmann, 298 F.2d 651, 652-653 (2d Cir. 1962) (dictum); Williams v. United States, 328 F.2d 256, 262 (8th Cir.), cert. denied, 377 U.S. 969, 84 S. Ct. 1651, 12 L. Ed. 2d 739 (1964).
Pacelli seeks support not from the holding of Gainey, but from its advice that "the better practice would be to instruct the jurors that they may draw the inference unless the evidence in the case provides a satisfactory explanation for the defendant's presence at the still, omitting any explicit reference to the statute itself in the charge." 380 U.S. at 71 n. 7, 85 S. Ct. at 759. We agree that this would be the better practice and suggest it be followed in the future. But the holding of Gainey is that mention of the statute does not require reversal so long as there is "neither allusion nor innuendo based on the defendant's decision not to take the stand." Id. at 71, 85 S. Ct. at 759. Defendant counters that Judge Bonsal, unlike the trial judge in Gainey, failed in this command because he did not make it clear that a defendant was not required personally to testify and that the "explanation" could come from other evidence in the case. Pacelli urges with some force that the government's own request for charge would have told the jury that the explanation could have come from "the evidence in the case." However, Judge Bonsal did charge later in his instructions, after noting that certain defendants had testified, that:
The other defendants did not testify and you will not consider this as any evidence whatsoever against them or as any basis of any presumption or inference unfavorable to them. You will not permit this to weigh in the slightest degree against any of the defendants who did not testify nor should this matter enter into your deliberations. This is because the government must prove a defendant guilty beyond a reasonable doubt, a defendant is not required to prove his innocence.
Somewhat earlier he had charged:
Now, I mention these two defendants purely by way of example and for nothing else, because you will review the evidence and consider what reasonable inferences you find may be drawn therefrom with respect to each of the six defendants. As I said, it is for your determination what reasonable inferences may be drawn from the evidence. But I remind you again that after considering all of the evidence as to a particular defendant you find that two reasonable inferences may be drawn, one consistent with his innocence and one consistent with his guilt, you must acquit the defendant * * *.
It would be hypertechnical, in the face of these instructions, to convert a general and accurate explanation of the section 174 permissible inference into a comment on defendants' failure to take the stand.*fn7 Nor do we find any merit in Pacelli's final argument that Judge Bonsal's explanation of the permissible inference in section 174 rendered the inference conclusive because the judge did not sufficiently explain the meaning of the word "inference."
Allegedly prejudicial publicity
Appellant Pacelli next contends that publicity destroyed his right to a fair trial by an impartial jury as guaranteed by the Sixth Amendment, Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961), and, in federal trials, buttressed by the supervisory power, see Marshall v. United States, 360 U.S. 310, 79 S. Ct. 1171, 3 L. Ed. 2d 1250 (1959). The errors specifically claimed are denials of motions for a change of venue, a continuance, a mistrial, and an examination of the persons responsible for the publications here involved.
Pacelli was indicted on September 30, 1964. On January 11, 1965, the front page of a New York City newspaper with a large circulation featured a photograph of a young woman in what appears to be lingerie, and the banner headline FEAR MOB SLEW DOPE BIG'S GIRL. Bold face type over the caption asked Was She Killed To Seal Her Lips?*fn8 On page three appeared a banner headline and a sub-headline: Fear Dope Big's Girl Was Rubbed Out [and] Dancer Talked to Grand Jury And Promptly Vanished. There was another eye-catching picture of the young lady.*fn9 On January 12, another article on the subject appeared in the same newspaper under a prominent headline (Dope Mob Ordered Nancy Sue to Scram) on page five. Both stories identified Pacelli as the missing girl's boy friend "who trafficked in narcotics."
Pacelli also points to a magazine article published approximately mid-way through the trial. The article appeared in a semi-scientific magazine addressed to laymen, with a national circulation of one and one-third million copies. Its contents are divided into departments, of which "Cars and Driving," "Home and Shop," and "TV, Radio and Electronics" are representative. In the June 1965 issue (apparently published about June 1), there appeared a six-page article, not referred to on the cover, but listed in the inside table of contents under "Special Reports." The article began mid-way through the issue, and was entitled "Our top anti-narcotics agent tells the inside story of how three nations combined to fight [the following in large type] The Dope-Smuggling Diplomats." The article is by-lined "by Henry L. Giordano as told to James C. G. Conniff." Mr. Giordano is identified under his photograph as Commissioner of the United States Bureau of Narcotics. The article describes the smashing of a narcotics smuggling ring which utilized diplomats as couriers, and is written in a popular, although unsensational, style. It identifies and has photographs of seven co-conspirators who were named in the indictment in the instant case, including one witness at the trial, and also names defendant Cahill (who was severed). The article did not mention any defendant tried below. On the day of publication, motions for a mistrial were made based on the article. The motions were denied, as was a later motion to vacate the verdict which was based in part on allegedly prejudicial publicity.
Since argument of this case, the Supreme Court has handed down its opinion in Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966). In considering the question of prejudicial publicity here raised, we have carefully read the Sheppard case and take as our governing standard the following (id. at 362 of 384 U.S., at 1522 of 86 S. Ct.):
Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. And appellate tribunals have the duty to make an independent evaluation of the circumstances.
In Sheppard, the barrage of publicity reached carnival proportions, the jurors were "without adequate directions not to read or listen to anything concerning the case," there was no doubt that "this deluge of publicity reached at least some of the jury," "bedlam reigned at the courthouse," and the arrangements between the court and news media "caused Sheppard to be deprived of that 'judicial serenity and calm to which [he] was entitled.'" The Supreme Court stated that the basic reason for vacating the conviction was that the trial judge "did not fulfill his duty to protect Sheppard from the inherently prejudicial publicity which saturated the community and to control disruptive influences in the courtroom." Id. at 363 of 384 U.S., at 1522 of 86 S. Ct.
None of these conditions can fairly be found in this case. There was no barrage of publicity. Complaint is made only of the publications described above. The two newspaper articles appeared on successive days in January, sixteen weeks before trial. Thereafter, until the June 1 magazine article, apparently nothing was written or said in the news media which would cause defendants to complain. A good part of this is undoubtedly due to the commendable foresight of the trial judge. A month before the trial, he asked the United States Attorney (with the concurrence of defense counsel) to request local news media not to publicize the trial. See United States v. Bentvena, 319 F.2d 916, 934 (2d Cir.), cert. denied, Ormento v. United States, 375 U.S. 940, 84 S. Ct. 345, 11 L. Ed. 2d 271 (1963). The jurors were adequately and periodically warned not to read or listen to any accounts of the case in the media, and, in conducting the voir dire about the publications, the judge carefully walked the tightrope between exploring the jurors' knowledge and titillating their curiosity about material previously unknown to them.
Finally, we cannot fairly say, as the Court did in Sheppard, that there is no doubt that the publicity reached "at least some of the jury."*fn10 As to the magazine article published during the trial, the court below promptly inquired of the jury as follows:
Before we adjourn for the day I would just like to tell you, you remember, I had been mentioning to you every day about any possible articles, radio or TV programs. My attention has been called to a recent article in a magazine of national circulation, not one of the really popular ones that you know, but still a magazine of national circulation, which mentions the name of people who have testified at this trial and mentions some of the names of other people you and I have heard in the course of the ...