United States v. Micele

327 F.2d 222
CourtCourt of Appeals for the Seventh Circuit
DecidedJanuary 8, 1964
DocketNos. 14145-14149
StatusPublished
Cited by17 cases

This text of 327 F.2d 222 (United States v. Micele) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Micele, 327 F.2d 222 (7th Cir. 1964).

Opinion

KILEY, Circuit Judge.

These five appeals arise from the same trial by jury under an indictment of nineteen counts, the first charging conspiracy,1 and the balance charging substantive offenses, in violation of narcotics laws.

The conspiracy count named these five defendants, fourteen other defendant eo-conspirators, and fourteen non-defendant co-conspirators, and alleged the conspiracy lasted from the summer of 1960 through 1962. Louis Guido and Albert Sakai2 were named in the conspiracy count only; Alex Micele, John Pellegrini and Thomas McGarry were named in the conspiracy count and one or more substantive counts. All were found guilty of the various charges against them except that Pellegrini was found not guilty of the substantive offense charged against him.

For sake of convenience, we shall treat as one each question common to each appeal.

Micele, Guido, Sakai and McGarry contend there is insufficient evidence to support their convictions under the conspiracy. Taking the evidence in the light most favorable to the government, as we are required to do, United States v. Glasser, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L.Ed. 680 (1942), there is evidence showing that Micele with Louis Vaselli agreed to furnish narcotics to Albert Spagnolia, and that they did so; that Micele with Anthony D’Agostino discussed with Frank Milazzo an opportunity to “pass the stuff” and both took him to meet Guido; that Micele passed narcotics to Milazzo for Pellegrini; that Guido told Milazzo that Micele and D’Agostino owed him money and later Micele left money at a night club for Guido; that Guido indicated to Milazzo that Micele and Guido were partners; that Vaselli and Guido met several times in Guido’s apartment; that Nick Guido’s wife heard him tell Louis Guido that the latter made money with Vaselli in the “narcotics racket;” and that Micele, Pellegrini and Milazzo were arrested in the apartment building where Guido lived as they were returning narcotics which customers claimed were of poor quality.

There is other evidence showing that Vaselli and Joe Gaynor sold narcotics to Sakai; that they tested narcotics in Sakai’s apartment, used by addicts; that [225]*225these addicts were Sakai’s market for distribution; and that Sakai and his roommate would be able to do a good business.

There is evidence of Vaselli leaving a package of white powder on a window sill, McGarry giving Vaselli money and picking up the package; of Stanley Miller’s selling narcotics to McGarry; and of McGarry selling narcotics to a government agent.

We conclude that there is sufficient evidence to support the convictions under the conspiracy count. We see no necessity of discussing cases that went off on grounds of “mere suspicion,” “mere association,” “mere knowledge, approval of or acquiescence in” the goals of the conspiracy. They have no application here. The evidence amply justified an inference that each of the defendants knew of the conspiracy and associated themselves with it. United States v. Aviles, 274 F.2d 179, 189-90 (2d Cir. 1960), cert. denied, 362 U.S. 974, 80 S.Ct. 1057, 4 L.Ed.2d 1009; Nye & Nissen v. United States, 168 F.2d 846, 852 (9th Cir. 1948).

We see no merit in the contention that the defendants were prejudicially misjoined in Count One. We do not agree that the proof showed two conspiracies with some of the defendants participating in but one, and that they were accordingly harmed by the evidence of the other conspiracy. The testimony showed what might be called a north side group — Guido, Vaselli, Micele — and a south side group — Vaselli, Gaynor — in the distribution of narcotics. It is true that Guido’s and Pellegrini’s names appear only in the north side distribution process and there is no testimony that they knew the members of the south side group or vice versa, or had any connection with them other than through Vaselli and to some extent Gaynor. But that is not fatal to the joinder. United States v. Carminati, 247 F.2d 640, 644 (2d Cir. 1957), cert. denied, 355 U.S. 883, 78 S. Ct. 150, 2 L.Ed.2d 113, United States v. Cohen, 197 F.2d 26, 29 (3d Cir. 1952).

The integrated distribution structure, shown by the testimony, did not preclude the inference that those separated from each other at lower levels, as Pellegrini, Sakai and McGarry were, knew the common source of the narcotics at the top, Vaselli and Guido. It was a single-structured conspiracy, and Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), does not apply. It is unimportant that the proof as to those at lower levels does not carry them to the conspiracy’s end. United States v. Stromberg, 268 F.2d 256, 264 (2d Cir. 1959), cert. denied, 361 U.S. 863, 868, 80 S.Ct. 119, 4 L.Ed.2d 102.

For these reasons we think the court did not err in denying severance as to Guido, Pellegrini and Micele. Since there is no merit to the contention of misjoinder of the conspiracy count, the court did not err in instructing the jury to consider the testimony of all witnesses, with certain exceptions, against all defendants.

We see no merit either in Pellegrini’s contention that he was prejudiced by the court’s denial of his motion for a severance because he was not named with any other defendant in a substantive count against him and was compelled to stand trial with other defendants.

And we see no merit in the claim of McGarry’s “entrapment.” The evidence plainly refutes his claim that the seed of his offense was planted in his mind, and that he was an otherwise innocent person.

Pellegrini, Micele and Guido claim error in denial of their motions for bills of particulars. The motions were addressed to the district court’s discretion, United States v. Holovachka, 314 F.2d 345, 349 (7th Cir. 1963), cert. denied, 374 U.S. 809, 83 S.Ct. 1695, 10 L.Ed.2d 1033, and we have not been shown any abuse of discretion in the court’s ruling. The court could with reason have concluded the motions called “for too much details of evidence,” Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. [226]*226300, 71 L.Ed. 545 (1927). Based on our inspecting the indictment, we conclude that defendants were sufficiently “apprised of the nature of the offense charged” against them, and there was probably “no danger of a violation of the principles of double jeopardy.” United States v. Garfoli, 324 F.2d 909 (7th Cir. 1963).

During the cross-examination of Milazzo, attorney for Guido asked him whether he had not been a partner in robberies with Micele.

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327 F.2d 222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-micele-ca7-1964.