440 F.2d 1203 | 2d Cir. | 1971
Lead Opinion
Rafael Casiano and Louis Fuselli were arrested by agents of the Federal Bureau of Narcotics and Dangerous Drugs on May 9, 1967 and charged with selling marijuana to an undercover agent, Arthur Goldenbaum, on May 2 and May 9.
In 1969 a second, superseding indictment was filed against Casiano alone. In it the Grand Jury alleged that Casiano had unlawfully transferred 1.587 kilograms to Goldenbaum on May 2 and six kilograms to Fuselli on May 9. Trial was to a jury which acquitted Casiano on the May 2 count but convicted him on the May 9 count. Casiano was sentenced to a five year term of imprisonment which he is presently serving, and he appeals his conviction upon the May 9 count. We affirm the conviction.
Other than the government chemist who testified that the substance alleged
In a conversation following the departure of the informer and Fuselli, Goldenbaum testified that Casiano told Goldenbaum to approach him directly in the future and thereby to eliminate the expense of a middleman; he bragged that he could provide “up to half a ton, if you want it,” and explained that Fuselli was a $50-a~week employee who kept the marijuana in his apartment and took the risk of meeting potential purchasers.
About this time other agents entered the apartment and arrested Casiano. A search revealed that he was carrying approximately $1,070 in cash on his person, of which $250 was part of the money Goldenbaum had given to Fuselli when the May 2 purchase was consummated.
Fuselli was the only defense witness. He admitted making the May 2 sale and negotiating the May 9 sale but adamantly denied that Casiano was in any way involved in either transaction. He stated that he had asked Casiano to hold some $400-450 for him during the evening of May 9 because he had a feeling that he would be arrested that night, as indeed he was. When so arrested Fuselli had no money on his person. He testified that one “Bob Loco,” a Roberto Morales, who was said to have been in the apartment when Casiano was arrested, was his “connection,” not Casiano.
On cross-examination Fuselli conceded that he had told two Assistant United States Attorneys, once prior to his trial, and once while at Ashland, that he had been selling for Casiano and that Loco was only Casiano’s delivery boy. On re-direct he explained that the first statement was made solely in hope of being released, and the second so as to increase the likelihood of his obtaining parole.
Appellant, relying on Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), complains that the prosecution should have been compelled to produce the informant, or, at least, to reveal his name, because only he could confirm or deny the conflicting testimo
Appellant’s other claims can be summarily dismissed. A six-pronged attack upon the court’s charge to the jury is without merit. The charge properly defined the jury’s role in weighing credibility, a crucial factor in the case, and properly applied the law relative to the facts. The appellant’s four other claims concerning the charge are also devoid of any merit.
Finally, appellant argues that the record is devoid of any proof of any transfer of marijuana to Fuselli by Casiano on May 9. However, there was ample evidence that Casiano on that date supplied the 15 pounds which Fuselli later attempted to sell to Goldenbaum. And there was sufficient evidence to permit the jury to conclude that Fuselli was not acting as Casiano’s agent in the transaction. Fuselli brought the mari
The judgment of conviction is affirmed.
. It appears that both Fuselli and Casiano were charged with violating 21 U.S.C. § 176a on the two occasions and with violating 26 U.S.C. §§ 4744(a) and 7237(b) with respect to the May 9 transfer.
. Also present in the apartment, according to Goldenbaum, was Roberto Morales (Bob Loco) who was arrested but not prosecuted.
. Goldenbaum’s testimony that he had carefully noted the serial numbers on the bills with which he had made the May 2 purchase was the subject of extensive cross-examination in an effort to impeach the agent’s credibility.
. Tlie pertinent portions of the trial record follow:
Counsel for Casiano: Now you met Fuselli through a man whom you described as an informant?
Goldenbaum: Yes, sir.
Q. Did that informant have a name?
A. Yes, sir.
Q. What was his name?
Asst. U. S. Attorney: That is objected to, your Honor.
The Court: Sustained at this time.
Q. Was bis name Jamie?
Asst. U. S. Attorney: I would object to the question concerning the identity of the informant.
The Court: Objection sustained.
Counsel for Casiano: I respectfully except, your Honor. s{<
Q. When did you last see this informant? A. I can’t say exactly. I would say approximately three years ago.
Q. Do you know whether or not he is still an informant for the Bureau? A. He is not.
Q. You know that he is not? A. Yes, sir.
Q. Do you know whether or not he is in jail? A. I do not know.
Q. Did he have any case pending against him at that time? A. He did not.
Q. Do you know whether or not the Bureau has any address for him? A. Yes, sir, they do have an address.
Counsel for Casiano: I submit at this time, if the Court pleases, that I am entitled to know the name and address of this alleged informant who was present at this alleged conversation between Fuselli and this agent.
The Court: What do you say, Mr. Luttinger?
Luttinger (Asst. U. S. Atty.) : I don’t say that there’s any showing at all that the informant’s identity is required at this time.
The Court: I don’t, either. Objection sustained.
Counsel for Casiano: I respectfully except, your Honor.
. Although the trial court’s instructions to the jury did not define a “transfer” with precision, they did convey the concept that the acts of one’s agent are one’s own acts, which in turn suggests that a merely physical transfer to one’s agent is not a “transfer” under § 4742(a). A more explicit statement would certainly have been desirable, but none of appellant’s objections to the charge suggested, even indirectly, the need for clarification. Appellant is therefore precluded from pressing the claim before us. Cf. United States v. Indiviglio, 352 F.2d 276 (2 Cir. 1965) (en banc), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966).
Dissenting Opinion
(dissenting) :
I would reverse this conviction since the jury was not adequately instructed with respect to what facts it was obliged to find in order to convict Casiano of a “transfer” to Fuselli.
Although 26 U.S.C. § 4742(a) does not define the meaning of “transfer,” some light is cast by the penalty provision, § 7237(b), which refers to “the sale, barter, exchange, giving away, or transfer.” This indicates an intention on the part of Congress that something more is required than the mere handing of marijuana from one person to another without any change in effective control.
If Fuselli was merely Casiano’s servant, it is very old law that no change in possession was effected. See Holmes, The Common Law 179 (Howe ed. 1963). The Government therefore was required to show that Fuselli was acting as a principal, either because he had acquired title to the marijuana or, at the very least, because Casiano had put the marijuana in his hands to do with as he wished. While it may be that the Government produced evidence barely sufficient to warrant submission of this issue to the jury, Casiano was entitled to an instruction which clearly pointed up what the issue was.
I find nothing in the charge which sufficiently enlightened the jury on this subject. The judge defined a transfer as “the giving, the turning over of marijuana either by yourself or by your agent in your behalf.” This language was apt enough with respect to the first count, but gave no help on the second. Indeed, it was quite confusing because the first count alleged, in effect, that Fuselli was Casiano’s employee in the earlier transaction, whereas the second alleged, in effect, that Fuselli was something more in the second. The difficulty was compounded by a further instruction that “if you are satisfied beyond a reasonable doubt that the defendant knowingly had control over that marijuana, either actually or constructively, you may convict him.” While the objection of defense counsel could have been more clearly stated, he said enough to raise the point. In any event I would apply the plain error rule in so close a case as this.