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United States v. Baratta

decided: June 21, 1968.


Friendly and Smith, Circuit Judges, and Gignoux, District Judge.*fn*

Author: Gignoux

GIGNOUX, District Judge:

Appellants Anthony Baratta, Samuel Monastersky and Rocco Sancinella here appeal their convictions of violations of 21 U.S.C. ยงยง 173, 174 (1964) relating to the unlawful importation and distribution of narcotics.*fn1 The indictment was in two counts. The first count charged each appellant with conspiracy to violate the above-mentioned statutes, such a conspiracy being specifically made illegal by section 174. The second count alleged that each appellant was guilty of a substantive violation of these sections as well.*fn2 All three appellants were convicted on both counts after a four day jury trial. Baratta was sentenced to five years imprisonment on the conspiracy count and ten years on the substantive count, to run consecutively. Monastersky was given concurrent ten year sentences on each count. Sancinella received consecutive sentences of five and eight years on the conspiracy and substantive counts respectively. Their appeal presents three issues which merit discussion: (1) Baratta's claim that the Government improperly used against him at trial a statement obtained from him in violation of the Miranda doctrine and objects illegally seized at the time of his arrest; (2) the contention of Monastersky and Sancinella that there was insufficient evidence of their knowledge of illegal importation of the narcotics to sustain the jury's verdict; (3) Baratta's contention that various errors in the trial court's charge, either individually or cumulatively, deprived him of a fair trial. Upon a consideration of the entire record, we feel that there was adequate evidentiary support for the verdict and that no prejudicial error has been committed. We therefore affirm the convictions of all appellants.

The Government's evidence, consisting mainly of the testimony of federal and local narcotics agents, tended to establish the following sequence of events.

On July 15, 1963, at about 11:15 p.m., George Bermudez, a New York City Police undercover narcotics agent, entered the Sonnet Lounge on the East Side of Manhattan. About one hour later he was joined there by one Ralph "Rufus" Ciccone, who informed him, "My man is here. Did you see him?" Upon Bermudez' negative reply, Ciccone brought over to him the appellant Samuel Monastersky, who had been seated in the bar when Bermudez had arrived. Ciccone introduced the two and asked Monastersky to assure Bermudez, who was posing as a purchaser of narcotics, that " everything is okay." Monastersky replied, "It's like Rufus said, everything will be okay; as far as the three ounces that he owes you, you will get it." Bermudez asked when he would get the promised three ounces, and Monastersky stated, "As soon as my man comes back from out of town." After Monastersky had left the bar, Ciccone informed Bermudez that Monastersky was "the big man" and that the person who was out of town was one "Tony Vase," afterwards identified as Anthony Verzino.

On July 18, 1963, at about 11:00 p.m., Bermudez met Ciccone and Monastersky at the 292 Club at 292 East 149th Street in the Bronx, where he was assured by them that he would get the three ounces and was instructed by Monastersky to return at the same time the following evening. At about 11:00 p.m. the following evening Bermudez found Monastersky and Ciccone at the 292 Club and asked Ciccone "Am I gonna get it?" Monastersky answered, "Wait a while, Tony will be here in a little while. We'll know a little bit better when he gets here." At about 1:00 a.m. Anthony Verzino entered the bar and was introduced to Bermudez by Monastersky. He stated that he understood that Bermudez had received bad goods from Ciccone, and announced that at the request of Monastersky he was offering to help Ciccone out. The price for a quarter kilogram of heroin was set at $3400 instead of Verzino's normal price of $4300 to make up for some of the money that Bermudez had lost in his dealings with Ciccone. Delivery was to be arranged through Ciccone.

On July 29, 1963 Bermudez encountered Verzino at the Vertigo Bar on Second Avenue and asked him about the deal that they had arranged. Verzino replied that Bermudez had not yet been "checked out" and that they would be meeting in the future.

On September 21, 1963, at about 2:00 a.m., Bermudez telephoned the 292 Club and spoke to Monastersky, who invited him over. Arriving at the club a short time later, Bermudez explained to Monastersky that he had been in Florida for some time and that he had heard that Ciccone was dead. Monastersky asked if Bermudez was still interested in the deal, and upon Bermudez' affirmative reply, stated that he had "some very good top goods right now." Bermudez asked about the price of a quarter kilogram. Monastersky then called over appellant Rocco Sancinella, who informed Bermudez that the price would be $4000. Bermudez demurred, reminding Monastersky that this was not what they had spoken about. Sancinella then walked over to Verzino, who was also in the bar. A moment thereafter the latter motioned Bermudez over to him and told him that the lowest possible price would be $3900. Despite Bermudez' objections, Verzino stuck to this price and Bermudez finally agreed.

Arrangements were then made for the sale. Verzino instructed Bermudez to park his car somewhere around 15 blocks from the 292 Club, leaving the money in the trunk. He was then to take a cab to the bar and give Verzino his keys. It was estimated that the whole transaction would take no more than one hour.

On September 23, at around 11:00 p.m., Bermudez again met Verzino and Sancinella at the 292 Club and stated that he was interested in purchasing an eighth of a kilo of heroin that evening. Verzino, however, refused to break a quarter kilo package and again outlined the procedure for the actual delivery. Bermudez then agreed to return the following evening with the $3900 for a quarter kilo. On Bermudez' inquiry as to the quality of the goods, Sancinella assured him, "It's 86 per cent."

The following evening, after conferring with other federal and local narcotics agents, Bermudez drove his car to East 143rd Street between St. Ann's Avenue and Brook Avenue in the Bronx, parked it there and took a cab to Courtland Avenue and 149th Street. He arrived at the 292 Club on foot at around 8:30 p.m. and met Verzino, who was just entering the bar. Moments before, Verzino had been observed in conversation with appellant Anthony Baratta, who had driven off in a black Cadillac convertible at the conclusion of the conversation. Verzino informed Bermudez that had he arrived at 8:00 p.m. the purchase and delivery could have been made at that time, but that as it was he would have to wait until around 10:00 p.m. Bermudez said he did not mind waiting and they entered the bar. Once inside, Bermudez informed Verzino that contrary to instructions, he had not left the money for the narcotics in his parked car, but had brought it along with him to the bar because of his apprehension that some dispute as to the amount might arise if he did not personally deliver the money to Verzino. Verzino expressed no objection to such a procedure and suggested that they go into the kitchen and count the money. In the kitchen Verzino and Bermudez found meatballs. At the request of Verzino, Monastersky and Sancinella each assisted in counting a portion of the money that Bermudez produced. The counting revealed that the $3900 was all there, the money was returned to Bermudez, and Verzino and Bermudez returned to the bar followed by Sancinella and Monastersky.

At about 9:50 p.m. one America Vega entered the 292 Club and asked to speak privately with Verzino. After he had spoken with her briefly, Verzino walked over to Bermudez and asked him for his car keys. The latter handed them over along with a piece of paper describing the car and its location. These were given to Vega, who put them in her pocketbook and, after having a drink with Verzino and Bermudez, left the bar.

About 15 minutes thereafter, Baratta entered the 292 Club and walked over to Verzino, who said, "Here's my delivery man." Verzino and Baratta left the club together, and Bermudez followed a minute or two later. Bermudez saw Baratta sitting in a black Cadillac convertible parked on Courtland Avenue just off 149th Street and Verzino standing beside the car. He turned and started back to the club and was joined a few moments later by Verzino, who stated, "It won't be long now." Baratta was then observed proceeding in the Cadillac to East 148th Street, where he entered the passenger side of a 1963 Oldsmobile already occupied by another individual. A moment later, both persons emerged from the Oldsmobile, Baratta carrying a package and a light colored raincoat. They got into the Cadillac and Baratta drove it away. After driving repeatedly through East 149th Street they proceeded to a building at 435 West 238th Street in Riverdale. One of the occupants of the car entered the building and returned shortly, and the car was driven back to the Bronx. At about 10:30 p.m. Baratta was observed parking the Cadillac behind Bermudez' Rambler and then grasping the handle of the Rambler's door. He did not open the door but returned to the Cadillac and proceeded to cruise around the neighborhood.

Meanwhile, Bermudez waited at the 292 Club. At about 11:30 p.m. he complained to Monastersky, "It's taking too long." The latter reassured him, "Take it easy, kid. Don't worry about it. Everything will be okay. * * * He'll be here." Half an hour later Bermudez asked Sancinella, "What's going on here? * * * I'm here since 8:30." Sancinella ...

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