Appeal from judgments of conviction for conspiracy to distribute, and to possess with intent to distribute a Schedule II controlled substance (methamphetamine hydrochloride) in violation of 21 U.S.C. §§ 812, 841 & 846, entered in the United States District Court for the Southern District of New York, after a trial before Arnold Bauman, Judge, and a jury.
Friendly, Anderson and Mulligan, Circuit Judges.
This is an appeal by Frank Masullo, Ambrose Pare and Michael Edelman from judgments of conviction which were entered on May 7, 1973 in the United States District Court for the Southern District of New York. Appellants were all convicted of conspiracy to distribute and to possess with intent to distribute a Schedule II controlled substance (methamphetamine hydrochloride--popularly known as "speed") in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) and 846, after a jury trial before Hon. Arnold Bauman, United States District Court Judge, which commenced on April 3, 1973 and ended on April 10, 1973. The jury did not reach a verdict on a substantive count of distribution of speed as to which Judge Bauman declared a mistrial. On May 7th Masullo was sentenced to a five-year prison term and a special parole period of two years, and Pare was sentenced to a prison term of two years. Sentence was suspended on Pare who was placed on probation for three years. Judgments affirmed.
In view of the character of the arguments raised on appeal, no elaborate discussion of the facts is necessary. The evidence of the Government established that an undercover agent, Nicholas Alleva, with the assistance of an informant, Joseph Swiatek, conducted negotiations with Pare for the purchase of pure amphetamine. After the usual furtive negotiations and meetings which characterize this business, the sale of about a half pound of amphetamine for $4500 was made on August 17, 1972 in Pare's apartment at 41 West 35th Street in New York City. All three of the defendants were present in addition to Alleva and Swiatek. Also present, but not named as a defendant was fellow conspirator Charles Velasquez. The supplier was Masullo who was observed to take $4000 of the payment which was in marked bills. Pare's share was $500. Masullo had been the subject of a two-year investigation by the Bureau of Narcotics and Dangerous Drugs (BNDD) as a major supplier of speed. Edelman was a henchman of Masullo, who on the afternoon of the sale told Swiatek that he had been sent ahead by Masullo to count the money before the package was delivered. Swiatek vehemently insisted that the deal had to be made directly with Masullo and not with his underling.
Agents who were surveilling Masullo observed him arriving with Edelman at a hotel near Pare's apartment carrying a brown paper bag. Edelman was then observed entering 41 West 35th Street carrying the same brown paper bag. Masullo soon followed and the sale was then consummated as described. Masullo and Pare were arrested on August 29, 1972. Masullo still had in his possession $1700 in the marked currency employed in the sale. Neither Masullo nor Edelman presented any defense.
On appeal Edelman urges that there was insufficient evidence upon which to base his conspiracy conviction. Looking at the evidence in the light most favorable to the Government as we must (Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942); United States v. Tutino, 269 F.2d 488, 490 (2d Cir. 1959)), there is no doubt that Edelman, although not a figure of major importance, was nonetheless an active participant in the conspiracy charged in the indictment. The uncontradicted evidence established that Edelman was a trusted lieutenant of the major figure of the conspiracy, Masullo. He was sent out to make sure that everything was in readiness for the transaction including the payoff; he was observed carrying the inevitable brown paper bag which the jury could reasonably infer contained the speed which was eventually sold to the agents. He was not only present at the sale, but extolled the quality of the merchandise. There was clearly sufficient evidence to support the jury's determination that Edelman was part and parcel of the criminal enterprise and not an innocent bystander. See United States v. Martinez, 479 F.2d 824, 829 (1st Cir. 1973); United States v. Garguilo, 310 F.2d 249, 253-54 (2d Cir. 1962).
Appellant's argument that there could be no conviction of Edelman without proof that he was in actual or constructive possession of the amphetamine is not sound. Edelman was indicted for conspiracy to violate 21 U.S.C. § 841(a) which involves not only possession but also, in the alternative, the distribution or dispensing of the contraband. The court made this point clear in its instructions to the jury. Even if the charge had been limited to conspiracy to possess there would have been no need of showing actual or constructive possession.*fn1 See United States v. Rappy, 157 F.2d 964, 966-67 (2d Cir. 1946), cert. denied, 329 U.S. 806, 91 L. Ed. 688, 67 S. Ct. 501 (1947).
The appellant Pare makes the argument that it was reversible error for the court to refuse to give the so-called "procuring agent charge," to wit:
If you find that the defendant, Pare, was asked by a federal agent or his special employee to buy drugs for him, and the defendant, Pare, then purchased from a third person with whom he was not associated in selling, then you must acquit Pare of the charges against him.
The procuring agent charge had validity where a defendant was charged with selling narcotics (United States v. Winfield, 341 F.2d 70 (2d Cir. 1965)), and there was evidence that he in fact was acting on behalf of a buyer rather than the seller. The legal theory is that as an agent for the buyer he is a principal in or is conspiring in the purchase rather than the sale of the contraband. United States v. Sawyer, 210 F.2d 169, 170 (3d Cir. 1954). See also Lewis v. United States, 119 U.S. App. D.C. 145, 337 F.2d 541, 543-44 (1964), cert. denied, 381 U.S. 920, 14 L. Ed. 2d 440, 85 S. Ct. 1542 (1965).
It has no present application where the charge is not sale but rather distribution or possession with intent to distribute. The statute (21 U.S.C. §§ 802(10) & (11)) defines "dispense" and "distribute" to mean "deliver" and the term "deliver" is defined to mean "the actual, constructive, or attempted transfer of a controlled substance, whether or not there exists an agency relationship" (21 U.S.C. § 802(8)). Under any view of the evidence, Pare was unquestionably actively seeking a transfer of the controlled substance and therefore the requested charge was properly refused. Other circuits have recently reached the same conclusion in cases which are directly in point. United States v. Miller, 483 F.2d 61, 62 (5th Cir. 1973); United States v. Johnson, 481 F.2d 645, 646-47 (5th Cir. ...