*2 Before VAN GRAAFEILAND and MES KILL, Judges, BONSAL, Circuit Dis Judge.* trict MESKILL, Judge: Circuit The government appeals from a judg- acquittal ment of in favor of appellee Mar- iani entered the United States District Court for the Northern District of New York pursuant 29(c). Fed.R.Crim.P. Judge granted McCurn 29(c) the Rule mo- tion and set aside the guilty verdict against appellee for conspiring to steal money of the United States violation of 18 U.S.C. The government claimed that defendant planned to sell to Drug Enforce- * Bonsai, Dudley York, Honorable sitting by designation. B. United States Dis- trict for the Southern District of New (DEA) ment the deal. The agents King Administration what DEA be, fact, agents agreed change plans but was not in and all purported to charge against riding controlled substance. The four men with Miller departed Mariani was included in a six count su- car the DEA Horney’s agents followed Fargno- indictment perseding Horney patted Louis in another Miller’s car. *3 who, li in and Miller addition to the Daniel once en route to Burger chest while being conspiracy with one count of charged package King and did not detect on his 641, to 18 U.S.C. were § violate person. charged unlawfully count of con- with one the Burger When the arrived at group and distribute metham- spiring possess to lot, King sitting Mariani was in a parking of in violation 21 U.S.C. phetamine blue in an isolated area. parked Lincoln (1982), two 841(a)(1) and 846 counts §§ first, near Horney parked the res- drove in intent to distrib- unlawfully possessing with taurant was followed the building and ute 21 methamphetamine violation of in front agents parked DEA who 841(a)(1) (1982), U.S.C. and 18 2 U.S.C. § § that agents Lincoln. The observed the Lin-
and
unlawfully distributing
two counts of
they
on as
parking lights
coln’s
were
drove
in violation of
methamphetamine
21 U.S.C.
in and that
were
on
headlights
the
turned
2
841(a)(1)
(1982).
and 18 U.S.C.
Mar-
§
§
car.
they
when
the
approached
iani made a motion to' sever which was
Miller,
jacket unzipped, got out
with his
denied.
were
guilty
The defendants
found
Horney’s
walked over to the
car and
on all
charged, except
Fargnoli
for
Miller
to
Lin-
agents’
pointed
vehicle.
the
who was
on the section
acquitted
641 count.
sitting
coln and
man’s
over there”
“my
said
guilty
Mariani
of conspiring
was found
to
here,
got
go
to
“you
and
wait
I’ve
over
steal money
of the United
the
Miller
get
there and
the
then
package.”
charge
him.
filed
to
spoke
walked to
Lincoln and
Mariani
the
judgment
We reverse the
and remand
through the
the driver’s
window on
side.
to reinstate the jury
instructions
ver-
through
Miller
the
got into the Lincoln
door
proceedings.
dict and
further
for
on the
and remained
the
passenger’s side
out,
got
car for a
time. When he
short
BACKGROUND
was
he cradled his
jacket
arms
zipped
The
had before it the
evi-
following
against his body.
dence.
an auto
shop
Mariani owned
repair
Miller
back to the DEA
then walked
at which Daniel Miller was an employee.
car,
agents'
package
in and handed
to
got
DEA,
James
an informant for
Horney,
agents.
immediately
arrest-
Miller was
shop
contacted Miller at Mariani’s
on sever-
ed.
then arrested Mar-
agents
Surveillance
arrange drug
al
to
purchases.
occasions
iani, who
the front seat
was seated in
Horney arranged for two DEA undercover
arrested, Mariani
Lincoln. When
stated
agents
purchase
pound
from Miller one
that, “All I
a friend a
give
was
ride.”
did
$22,000.
methamphetamine
place
transaction was to take
on December
transported
Miller and Mariani were
to-
1,1982
Johnson’s
at a Howard
restaurant
gether
Public
Binghamton
Safety
Binghamton, New York.
route,
Building.
Miller asked the
While en
agents why
Miller
Mariani left
been arrested and
repair
auto
he had
was
shop
selling
on the afternoon
that the
separately
charge
of Decem-
told
controlled
ber 1.
was later
substance.
that
dropped
agents
Miller
off at the
Miller stated
it
person
restaurant
an unidentified
driv-
should check
because
did not
package
ing a blue Lincoln automobile. Miller en-
contain controlled substances. Mariani was
evening.
agents
Syracuse
tered the restaurant
and told the
taken to
later that
Dur-
“you
man” did
Horney
“my
ing
trip
guys
not want to
he remarked
got.”
you
consummate the transaction there and that
don’t have what
think
A
you
analysis
to a
they
go
Burger
subsequent
laboratory
would have to
revealed
nearby
11,
package
contained no traces of
19 n.
2788 n.
methamphetamine.
L.Ed.2d 560
A reasonable mind
must be able to conclude
on each and
violat-
guilty
found Mariani
every element
the charged
offense. See
ing
However,
18 U.S.C. 641.1
the district
Macklin,
States v.
671 F.2d
court concluded that
(2d Cir.1982) (citing In re Winship, 397 U.S.
find
guilty
could not
him
be-
conspiracy
1068, 1072,
90 S.Ct.
yond
granted
a reasonable doubt and
Mar-
(1970)). However, “all reasonable inferenc
29(c)
acquittal.
iani’s Rule
motion for
That
es are to be resolved in
the prose
favor of
appeared
decision
partly premised
be
required
cution and the trial court
questioning
the court’s
its own earlier rul-
view
most favor
ing
motion
denying Mariani’s
for a sever-
able
Government with
ance.
McCurn stated his belief that
each element
offense.” United
*4
evidence introduced
defendants Mil-
38,
v. Rodriguez,
(2d
States
702
41
F.2d
ler
Fargnoli
on the other five counts
Cir.1983) (quoting
Artuso,
United
v.
States
over”
“spilled
despite
onto Mariani
a jury
192,
(2d
denied,
Cir.),
618 F.2d
195
cert.
449
instruction to the contrary.
appeal by
This
861,
164,
101
U.S.
S.Ct.
may indicate to the circum issues that Mariani raise on tively and reference general. United States v. argued. stances See that were neither briefed nor Cir.), Carson, (2d 702 F.2d 362 cert. instructions Reversed and remanded with denied, — U.S. —, 2456, 77 103 S.Ct. verdict further and for reinstate L.Ed.2d proceedings. court Although correctly district failed governing principles enunciated it BONSAL, Judge (dissenting): District The court apply properly. them found I dissent. respectfully presence Mariani’s at the scene the sale acquit- granting In Mariani’s motion ex- spontaneous to be “consistent with [his] 29(c), the trial tal under Fed.R.Crim.P. arrest, was planation upon ‘giving that he ” judge stated: a ride.’ friend The court discounted has reviewed the evidence Court post-arrest “you Mariani’s statement required, presented against Mariani as you have guys you got” by don’t what think govern “in a most favorable to the light stating weight given the state- conjunc ment in isolation and ‘not but “must be ment considered v. F.2d Terry, tion’ ”. United States strong possibility merely that Mariani Cir.1983) (2d quoting, 299 at 321 echoing what he had heard Miller earli- say Geany [sic], F.2d States doing, In so court er.” the district substi- *5 denied, 1028, 90 (2d Cir.), cert. 397 U.S. tuted its own determination of the weight (1970); Glasser S.Ct. and the reasonable inferenc- 60, 80, v. United U.S. jury. es to be drawn for that of the This 457, 469, I am ne 86 L.Ed. was error. say jury might to that a vertheless unable The court’s should analysis have ad beyond conclude a reasonable reasonably whether, the question upon dressed based a willfully doubt that Mariani became all of the relevant evidence introduced conspiracy. member of the Mariani, jury a reasonable could The had instructed judge properly trial concluded beyond have a reasonable doubt a jury determining that “In whether that he was to guilty conspiring violate alleged a member of an con- defendant was 641. 18 U.S.C. Miller’s references to only spiracy ... should consider “my as his Mariani man” and conversation evidence, any, if to his own pertaining Mariani car through prior with window not acts and did statements.” entering pick up bogus the Lincoln to instruction, because of perhaps follow this drugs, under circumstances and when drug its findings whole,
taken as a could establish in the named, not in which Mariani was minds of a reasonable Mariani’s illicit trial judge stated: conspiracy. Potentially association light post-arrest reviewing harmful Mariani was his After the evidence in might government, because it the Court statement indicate favorable to par- knowledge package did contain finds that the evidence of Mariani’s drugs. Resolving ticipation agreement money reasonable an to steal all inferences viewing government simply in favor of the all from the federal juror the evidence most too to find meager in the favorable for government, beyond we believe that a rea a reasonable guilty Mariani mind fairly sonable could be doubt. judgment a reasonable
yond doubt. I the trial nothing find to indicate that acquittal improper. therefore He had judge’s was erroneous. conclusion to observe the witnesses appellee opportunity Because Mariani is the in this case, prejudice presented our decision is without and to the evidence consider properly trial. The effect of may motions Mariani make the course of the will
reversal mean Mariani In his conviction. the interest see the
judicial economy, prefer I would
proceeding ended now. affirm.
Accordingly, I would Maas, Atty., E. Asst.
Brian U.S. E.D. N.Y., Dearie, J. Brooklyn, (Raymond N.Y. E.D.N.Y., Ross, Atty., Allyne R. Asst. N.Y., counsel), Atty., Brooklyn, for America, Appellee, UNITED STATES of appellee. Pollack, Michael B. New City, York for CANCILLA, Appellant. Peter appellant. No. Docket 82-1341. FEINBERG, Judge, Before Chief of Appeals, United States Court KEARSE, RE, Judge, Circuit Chief Circuit. Second Judge, States Court International Argued Dec. 1983. Trade.*
Decided Jan. FEINBERG, Judge: Chief judgment
Peter Cancilla from a appeals September of conviction in United States District Court the East- *6 York, Platt, ern District of New Thomas C. J., after a trial which he and his Cancilla, appealed, wife Teresa who has not fourteen of mail were convicted on fraud in violation of 18 U.S.C. §§ Peter received a Cancilla sentence $14,000 years prison four and a fine. On position appeal, takes this true an court should assume as come to attention allegation has its that defendant’s trial counsel had himself activity in criminal related to the engaged for which defendant was convicted conduct should further assume that defendant activity no such knowledge had is whether his counsel. The issue unusual of this case there was on the facts a conflict of interest that violated defend- right to counsel. ant’s Sixth Amendment below, we answer that given For reasons reverse question in the affirmative. We new trial. and remand for a * Sitting designation.