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UNITED STATES v. DOVICO

November 16, 1966

UNITED STATES of America, Plaintiff,
v.
Alfred DOVICO, Defendant



The opinion of the court was delivered by: COOPER

COOPER, District Judge.

 This is a prosecution for violation of the Federal narcotics laws.

 Alfred Dovico and Paul Gangi were jointly indicted on September 5, 1961. *fn1" The second count charged Dovico and Gangi with a sale of narcotics on January 10, 1961 in violation of Sections 173 and 174 of Title 21, United States Code. After trial of Dovico alone *fn2" before Judge Sugarman, now Chief Judge, sitting non jury, Dovico was found guilty *fn3" and sentenced to ten years imprisonment as a second narcotics offender. *fn4" The conviction was affirmed upon appeal. *fn5" Because of newly discovered evidence, Judge Sugarman, after a hearing, vacated the judgment of conviction and ordered a new trial. *fn6"

 New trial proceedings (concerned solely with count two) began before me without jury on June 6, 1966. The trial continued on June 7 and 9 when it was completed; decision was reserved pending submission by the parties of post-trial memoranda. *fn7"

 During trial, pursuant to stipulations entered by the parties with consent of the Court, the following were made part of the trial record. *fn8"

 (a) all proceedings, and papers filed in the proceedings had before Judge Sugarman subsequent to the defendant's original trial resulting in his conviction in December, 1964; and

 (b) all proceedings, and papers filed in the proceedings had in connection with defendant's motion on June 24, 1966 to produce certain witnesses at trial at government expense pursuant to Rule 17(b), F.R.Crim.P.

 Upon review of the entire trial record, including the parties' post-trial memoranda, the Court, on August 16, 1966 ruled in open Court on trial motions as follows: *fn9"

 
(a) The government's motion to strike certain out-of-court declarations by persons not called as witnesses was granted; and
 
(b) the defendant's motion for acquittal was denied and the defendant, upon the entire record, quantitatively and qualitatively, was found guilty as charged in count two of the indictment,

 By this memorandum, the Court undertakes to formally dispose of both motions.

 DOVICO'S GUILT WAS ESTABLISHED BEYOND A REASONABLE DOUBT

 The only material fact issue seriously raised at trial was whether Dovico supplied the narcotics which were the subject of the sale charged in count two. The Government contends he did. Defendant argues that the evidence is to the contrary; that Gangi himself procured the narcotics; and, in any event, the Government failed to sustain its burden of proof. We agree with the Government.

 Briefly, it appears without significant dispute that on January 9, 1961, Raul Santiago, then a special employee for the Federal Bureau of Narcotics, proceeded to Paul Gangi's Pizza Shop in New York City and there paid to Gangi $550 for an ounce of narcotics which was to be delivered to Santiago at the Shop later in the evening. (T.20-21).

 Gangi could not effect delivery on the 9th, but "guaranteed" it for the following day at 9:30 P.M. (T.23-4).

 Santiago returned to the Shop at that time and asked Gangi "was it here yet" to which Gangi replied, "Take it easy." At about 10:15 P.M., Gangi commented that he could not understand "what's keeping this guy" and, after a telephone call, informed Santiago not to worry, "it will be here." Some twenty minutes later, Gangi received another telephone call and was heard by Santiago to say: "Hurry up, yeah, he's here." (T.25; see T.143-44). *fn10"

 Shortly after 10:40 P.M., Gangi came from behind the counter, reached into a refuse can, and removed napkins and a brown package. (T.32, 146-47). He gave the brown package to Santiago, commenting "Be careful," and Santiago put it in his pocket and walked out of the Shop. (T.33, 37-38; see also 126-129).

 Santiago proceeded to a subway station platform followed by an Agent. Santiago gave him the brown package which contained narcotics. (T.38, 187-188, Government Exhibit 3).

 How did the narcotics get in the waste receptacle? Each of the government witnesses, *fn11" without contradiction, testified that about 10:40 P.M. on January 10th Dovico entered the Shop with a young girl (T.25-6, 144, 186, 225, 283). He ordered a slice of pizza for himself and the girl, and a pizza pie to take out.

 Agent Avant saw Gangi place white paper napkins on the counter in front of Dovico (T.161). When he finished eating his slice of pizza, according to Santiago, whose testimony the Court credits, *fn12" Dovico removed a brown package from his pocket and "mashed" it with the napkins as he walked over to the waste receptacle. Although none of the Agents testified to seeing the brown package in Dovico's hand, Agents Avant and Tripodi, from varying vantages, saw Dovico take the white napkins, proceed to the refuse can and deposit therein whatever he held. *fn13" It was immediately thereafter that Gangi came from behind the counter and pulled a brown package from the can and gave it to Santiago (T.32-33). *fn14"

 Defendant's Contentions

 As was Dovico's constitutional right, he did not testify at his first trial or before me. At his first trial, his defense was alibi - that he was at work. It "was not sustained because the records of his employer failed to indicate that Dovico was working on the night of January 10, 1961 when all of the government's witnesses placed him in Gangi's shop." United States v. Dovico, opinion #30811, p. 3, S.D.N.Y., filed January 29, 1965. From the proof adduced against him at the second trial, he now argues that he was there on that evening. Needless to add, this variance in no way entered into the Court's verdict based solely on the proof adduced.

 Although neither Santiago nor Agent Avant examined the receptacle before Dovico entered the Shop (T.111, 158), we cannot agree with defense contentions that: (a) the narcotics had been placed in the receptacle prior to Dovico's entrance; (b) Gangi was waiting for an "opportune" time to effect delivery to Santiago; and (c) Dovico's presence was therefore a "coincidence" having no relation to the crime. (Defendant's Post-Trial Memorandum, p. 31).

 First, both Agent Avant and Santiago testified that no one other than Dovico and then Gangi had gone to the receptacle during the evening of the 10th. (T.48-49, 167). Next, Gangi's actions, his remarks to Santiago and his statements over the telephone on the 9th and 10th, coupled with Dovico's actions on the 10th, the fact that Dovico drove a Rambler, had red hair and answered to the nickname "Red" and lived in the vicinity where Gangi had sought him out on the 9th, are persuasive circumstances negativing the contention that Dovico's presence in the Shop was "co-incidental." *fn15" Finally, if Gangi had narcotics "in stock," and was not awaiting delivery, the record discloses no reason for delaying Santiago. The purchase price had been paid on the 9th, Santiago and Gangi were not strangers. They had dealt with each other previously. Then, too, the Shop seemingly provided the operating area for illicit narcotics transactions. Nothing appears to have made the "time" of Dovico's presence more "opportune" than any other on the 9th or 10th.

 There was, however, other evidence received at trial, subject to a motion to strike as hearsay, which, if properly admitted, the defendant contends creates a reasonable doubt as to his guilt. Although for reasons which we deal with later, this evidence was stricken, it should be noted here that, assuming the hearsay objection had been overruled, Gangi's statement to the effect that Dovico is innocent of the crime and that he, Gangi, had put the narcotics in the receptacle, is devoid of credibility and of insufficent weight to lead this Court to find the reasonable doubt pressed by the defense.

 Accordingly, employing the statutory inference I am permitted to make under 21 U.S.C. § 174, *fn16" I find that each of the elements required for a conviction under 21 U.S.C. §§ 173 and 174 *fn17" has been satisfied by the government beyond a reasonable doubt and that the defendant stands convicted as charged.

 GANGI'S OUT-OF-COURT DECLARATIONS WERE INADMISSIBLE AS HEARSAY

 1. Motion for a New Trial

 Before Dovico's original trial in September, 1963, Gangi had pleaded guilty (July 29, 1963), was sentenced and then committed to Danbury Correctional Institution. After Dovico's conviction had been affirmed, he moved pursuant to Rule 33, F.R.Crim.P., for a new trial on the ground of newly discovered evidence. In Judge Sugarman's opinion and order of January 28, 1965, granting a new trial, he wrote (pp. 3-8):

 
"The motion was predicated upon an affidavit of Raphael Plattner sworn to July 31, 1964, which stated that between February 13, 1964 and March 19, 1964, while Plattner was an inmate of Danbury * * * he became friendly with Gangi who told Plattner that Dovico was innocent of the crime for which Dovico had been convicted and that, although Dovico was in Gangi's shop on the night of January 10, 1961, Dovico did not place any narcotics in the refuse receptacle but that he, Gangi, had done so alone in preparation for the sale to Santiago. Plattner further stated that the reason Gangi ascribed for warning Dovico's lawyer, who had subpoenaed Gangi as a witness at Dovico's [first] trial, that if Gangi was put on the stand he would "bury" Dovico, was Gangi's fear that if he told the truth from the stand the federal agents would charge Gangi with violations of the narcotics laws other than those to which Gangi had pleaded guilty.
 
* * *
 
"The government submitted affidavits of agents * * * and two assistant United States attorneys, denying that any pressure had ever been exerted on Gangi to dissuade him from testifying at Dovico's trial. There was also submitted in opposition, an affidavit of Gangi sworn to October 5, 1964 in which he stated:
 
'On October 1, 1964, in the presence of my attorney, * * * I read an affidavit signed by one Raphael Plattner. This affidavit related the details of an alleged conversation between Plattner and myself. On that same date, I was also shown two photographs of an individual identified to me as Raphael Plattner. I recognized the photographs as those of an individual I may have seen during my stay at * * * Danbury * * *
 
'I wish to state that I never at any time spoke to Mr. Plattner concerning the facts and circumstances set forth in his affidavit. Any such statements attributed to me are completely untrue.'
 
"Dovico's attorney submitted a reply affidavit reciting that Plattner had told the attorney that there were other witnesses to Plattner's conversations with Gangi."
 
* * *

 Judge Sugarman scheduled a hearing on the motion for December 30, 1964 by memorandum dated December 7th. On the 11th, Plattner swore to a further affidavit alleging attempts by the government to have him recant charges and statements made in his original affidavit. Later, when counsel for both sides were unable to meet the schedule set for the hearing on the 30th, Judge Sugarman filed a suuplemental memorandum, on December 23rd, deferring the hearing to January 18, 1965.

 In that same opinion, Judge Sugarman sets forth subsequent events:

 
"* * * [On] the night of December 23, 1964 Gangi died of a heart attack at Danbury.
 
"A hearing was held * * * on January 18, 1965 and concluded on January 26, 1965. Plattner and six other witnesses, all inmates of Danbury in February and March 1964, testified. Some sharply contradicted the inference in Gangi's affidavit that Plattner was known to Gangi only by sight, if at all, and some sharply contradicted Gangi's denial of having discussed the ...

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