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Docket Number

No. 339.

Attorney(S)

Herbert Zelenko, of New York City, for appellant Bruno. Salvatore J. Iannucci, of New York City (M. Michael Edelstein, of New York City, of counsel), for appellant Iacono. John T. Cahill, U.S. Atty., of New York City (Joseph P. Martin, Abel I. Smith, Jr., and William F. Young, Asst. U.S. Attys., all of New York City, of counsel), for the United States.

Judges

Charles Edward Clark

Acts

Telecommunications — Wire Or Radio Communication — Miscellaneous Provisions — Unauthorized Publication Or Use Of Communications
Judiciary And Judicial Procedure — United States Magistrate Judges — Court Officers And Employees — Character Of Service

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Smart Summary

Case Summary: UNITED STATES v. BRUNO et al., No. 339 (2d Cir. July 10, 1939)

Factual and Procedural Background

Jerby Bruno and Colagerio Iacono were indicted, along with 86 others, for a conspiracy to import, sell and possess narcotics. Some co-defendants were acquitted; others were convicted. Bruno and Iacono were convicted in the District Court for the Southern District of New York and appealed. The Court of Appeals considered four principal complaints raised by the appellants and rendered judgment reversing Iacono's conviction and affirming Bruno's conviction.

Legal Issues Presented

Whether the evidence proved a single conspiracy as alleged in the indictment or a series of separate conspiracies.
Whether evidence derived from an assertedly unlawful telephone "tap" (a dictagraph recording) was competent and admissible.
Whether the trial judge erred by refusing to instruct the jury as requested concerning the effect of the defendants' failure to take the stand.
Whether the evidence was sufficient to support the convictions.

Arguments of the Parties

Appellants' Arguments

The evidence, at most, established several separate conspiracies (e.g., between smugglers and middlemen, and between middlemen and disparate groups of retailers), not the single conspiracy charged.
Evidence obtained through unlawful telephone tapping (a dictagraph record) was admitted and was therefore incompetent and prejudicial.
The trial judge refused the defendants' requested instruction that the jury should not take the defendants' failure to testify against them.
The evidence was insufficient to sustain convictions against them.

The opinion does not contain a detailed account of the government's specific trial arguments in response to each point.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
United States v. Peoni, 2 Cir., 100 F.2d 401	Illustrates that a defendant who did not know a buyer would resell (and had no interest in whether he did) was not part of a broader conspiracy.	The court distinguished Peoni from the present case, finding that here participants knew of the downstream links and the venture's dependence on the whole, so Peoni was not controlling.
Rudner v. United States, 6 Cir., 281 F. 516, 519, 520	Cited in the court's discussion of the scope of conspiracy.	Cited alongside other authorities in support of the court's analysis of whether one or multiple conspiracies existed.
Jezewski v. United States, 6 Cir., 13 F.2d 599, 602	Cited in the court's discussion of conspiracy principles.	Used as a supporting citation in the court's analysis of the single-conspiracy issue.
Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314	Addressed generally in relation to coverage of multiple-conspiracy situations.	The court stated it was unnecessary to decide how far Berger would independently cover the situation if there had been more than one conspiracy.
Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314	Authority regarding unlawfully obtained telephone communications and admissibility.	The court invoked Nardone in addressing the objection to the dictagraph record introduced to corroborate the agent's testimony.
United States v. Weiss, 2 Cir., 103 F.2d 348	Held that 47 U.S.C.A. § 605 did not extend to intrastate telephone talks.	The court noted Weiss would, if followed, be sufficient to permit admission; alternatively, the court treated any erroneous admission of the record as harmless given the corroborating testimony and strength of the proof against Bruno.
Stout v. United States, 8 Cir., 227 F. 799, 803, 804	Assumed that refusal to give a requested instruction regarding a defendant's failure to testify would be error.	Cited in the court's discussion of the requested instruction and the applicable statute concerning a defendant's silence.
Hersch v. United States, 9 Cir., 68 F.2d 799, 802	Held that refusal to give the requested instruction was error (in context).	Cited as an authority addressing refusal to instruct on the defendant's failure to testify, though the court noted contextual differences.
Swenzel v. United States, 2 Cir., 22 F.2d 280	Held that refusal to give such an instruction did not require reversal.	The court relied on Swenzel to explain that refusal to give the requested admonition ordinarily would not, by itself, require reversal.

Court's Reasoning and Analysis

Scope of Conspiracy: The court analyzed whether the proof established a single conspiracy or multiple distinct conspiracies. The evidence allowed a jury to find a long-standing conspiracy involving many persons whose objective was to smuggle narcotics into New York and distribute them in New York and in Texas and Louisiana. The scheme required cooperation of four groups: smugglers (importers), middlemen (who paid smugglers and sold to retailers), New York retailers, and Texas/Louisiana retailers. Although the evidence did not show direct communication between smugglers and retailers or between the two retail groups, the court emphasized that the smugglers knew the middlemen would sell to retailers and the retailers knew the middlemen must buy from importers. Because participants at different points in the chain knew their role was part of a larger distribution venture and the success of each part depended on the whole, the court concluded that a jury could reasonably find a single conspiracy embracing all accused. The court distinguished United States v. Peoni on the ground that in Peoni the defendant lacked knowledge of the further transfer and had no interest in it.

Telephone "Tap" Evidence: The court addressed the admission of a dictagraph machine record placed in a telephone circuit to corroborate an agent's testimony. The court cited Nardone concerning unlawfully obtained telephone communications and noted United States v. Weiss, which held that 47 U.S.C.A. § 605 did not extend to intrastate calls—this alone would permit admission. Even assuming the record was incompetent, the court held that any error was not prejudicial enough to justify reversal because the agent testified to what he heard and the record only corroborated a limited fact (that LaRose called Bruno and they spoke in Italian). The court found the agent's testimony reliable and the overall proof of Bruno's guilt sufficiently strong that the admission, if erroneous, was harmless.

Judge's Charge Regarding Failure to Testify: The defendants had requested an instruction that the jury should not take the defendants' failure to testify against them. The judge refused and instead instructed that a defendant has the privilege to testify, but that if he does his credibility must be evaluated in light of his interest. The court acknowledged this was not the equivalent of the requested instruction. Reviewing authorities, the court observed varying treatments: some cases assumed or held refusal to give the requested instruction to be error, while Swenzel held such refusal did not require reversal. The court explained the rationale for the statute: the principal practical protection is to bar the prosecution from using the defendant's silence as an inference of guilt; a judicial admonition against drawing such an inference is of limited practical value and may even highlight the defendant's silence to the jury.

Sufficiency of Evidence: The court treated the sufficiency issue separately for each defendant. For Bruno the court found the proof of guilt plain and sufficient. For Iacono the court found the evidence tenuous: the only showing was that Iacono received seven money orders in New York from members of the Louisiana retailers (some in assumed names), totaling about $6,800, but it did not appear these remittances represented proceeds from sales of narcotics. Even if those remittances suggested complicity in some illicit enterprise, the court observed that the defendants were a disreputable lot among whom many ventures could be occurring; the remittances were not shown to be sufficiently interwoven with narcotics sales. The court concluded the proof against Iacono was insufficient.

Holding and Implications

Judgment reversed as to Colagerio Iacono.

Judgment affirmed as to Jerby Bruno.

Consequences: The direct effect is that Iacono's conviction was vacated for insufficient evidence, while Bruno's conviction was upheld. The opinion does not announce a new rule of broad application; its holdings address (1) the factual determination that the evidence could support a single, wide conspiracy, (2) that the admission of the particular telephone record was either permissible under controlling circuit precedent or harmless if erroneous, (3) that refusal to give the requested silence instruction does not ordinarily mandate reversal, and (4) that the evidence against Iacono was insufficient in the circumstances of this case.

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UNITED STATES v. BRUNO et al.

PER CURIAM.

Bruno and Iacono were indicted along with 86 others for a conspiracy to import, sell and possess narcotics; some were acquitted; others, besides these two, were convicted, but they alone appealed. They complain, (1), that if the evidence proved anything, it proved a series of separate conspiracies, and not a single one, as alleged in the indictment; (2) that unlawful telephone "taps" were allowed in evidence against them; (3) that the judge refused to charge the jury properly as to the effect of their failure to take the stand; and (4) that there was not enough evidence to support the verdict.

The first point was made at the conclusion of the prosecution's case: the defendants then moved to dismiss the indictment on the ground that several conspiracies had been proved, and not the one alleged. The evidence allowed the jury to find that there had existed over a substantial period of time a conspiracy embracing a great number of persons, whose object was to smuggle narcotics into the Port of New York and distribute them to addicts both in this city and in Texas and Louisiana. This required the coöperation of four groups of persons; the smugglers who imported the drugs; the middlemen who paid the smugglers and distributed to retailers; and two groups of retailers — one in New York and one in Texas and Louisiana — who supplied the addicts. The defendants assert that there were, therefore, at least three separate conspiracies; one between the smugglers and the middlemen, and one between the middlemen and each group of retailers. The evidence did not disclose any coöperation or communication between the smugglers and either group of retailers, or between the two groups of retailers themselves; however, the smugglers knew that the middlemen must sell to retailers, and the retailers knew that the middlemen must buy of importers of one sort or another. Thus the conspirators at one end of the chain knew that the unlawful business would not, and could not, stop with their buyers; and those at the other end knew that it had not begun with their sellers. That being true, a jury might have found that all the accused were embarked upon a venture, in all parts of which each was a participant, and an abettor in the sense that the success of that part with which he was immediately concerned, was dependent upon the success of the whole. That distinguishes the situation from that in United States v. Peoni, 2 Cir., 100 F.2d 401, where Peoni, the accused, did not know that Regno, his buyer, was to sell the counterfeit bills to Dorsey, and had no interest in whether he did, since Regno might equally well have passed them to innocent persons himself. Rudner v. United States, 6 Cir., 281 F. 516, 519, 520; Jezewski v. United States, 6 Cir., 13 F.2d 599, 602. It might still be argued that there were two conspiracies; one including the smugglers, the middlemen and the New York group, and the other, the smugglers, the middlemen and the Texas Louisiana group, for there was apparently no privity between the two groups of retailers. That too would be fallacious. Clearly, quoad the smugglers, there was but one conspiracy, for it was of no moment to them whether the middlemen sold to one or more groups of retailers, provided they had a market somewhere. So too of any retailer; he knew that he was a necessary link in a scheme of distribution, and the others, whom he knew to be convenient to its execution, were as much parts of a single undertaking or enterprise as two salesmen in the same shop. We think therefore that there was only one conspiracy, and it is not necessary to decide how far Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314, would independently have covered the situation, had there been more than one.

The next question concerns the admission of evidence alleged to have been incompetent, because derived through the unlawful tapping of a telephone. Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314. This consisted of the record of a dictagraph machine which had been interposed in a circuit leading from a telephone in a room used by a government agent who was posing as a buyer of narcotics. The agent was present when a conspirator used the telephone, and testified to what he heard; the record was used to corroborate him. His testimony was that while he was bargaining with LaRose — one of the New York distributors in New York — LaRose said that the drug — cocaine — was in Bruno's possession. LaRose then called up Bruno, who was also in New York and talked to him in Italian which the agent could not understand. The record confirmed the fact that LaRose had called up Bruno and that they had talked in Italian, but no more. In United States v. Weiss, 2 Cir., 103 F.2d 348, we held that the statute, 47 U.S.C.A. § 605, did not extend to intrastate telephone talks, and that alone would be enough here; but against the possibility that the Supreme Court may take another view, we think that, even though the record was incompetent, its admission was not serious enough error to justify reversal. True, it did confirm the agent's testimony that LaRose talked to Bruno, and that in turn corroborated what the agent said LaRose had told him of Bruno's part in the sale. We do not believe, however, that the result would have been different, had the agent's testimony stood alone, for, although the only other testimony incriminating Bruno was of accomplices, there was nothing to shake the agent's testimony, or any reason, except possible excess of zeal, to doubt the truth of what he said. The proof of guilt was too strong to upset the verdict for such an error, if it was an error at all.

Finally as to the judge's charge. He was asked to tell the jury that they should not take it against the defendants that they had not testified in their defense. This he failed to do, and told them instead that it was a defendant's privilege to testify, but that when he did so, his credibility was "to be determined in the light of his interest which * * * is * * * a matter which may seriously affect the credence that shall be given to his testimony." It must be confessed that this was not the equivalent of what the defendant had requested. We have not been able to find much that is helpful by way of interpretation of the statute, § 632, Title 28, U.S.Code, 28 U.S.C.A. § 632. In Stout v. United States, 8 Cir., 227 F. 799, 803, 804, it was assumed that if such a request were made, it would be error to refuse it; and in Hersch v. United States, 9 Cir., 68 F.2d 799, 802, that was definitely held, though apparently less because the instruction was itself important, than because an earlier comment of the judge had made it so. On the other hand in Swenzel v. United States, 2 Cir., 22 F.2d 280, we held that such a refusal did not require us to reverse. The statute is primarily intended to prevent the affirmative use of the accused's failure as an inference of guilt; and it would not be an error to refuse to charge the jury that they must not make that inference — at least it would not be except under some unusual circumstances that we cannot foresee. The important thing to bear in mind is the probable futility of the instruction. When an accused does not take the stand, everybody knows that he fears to do so, for a man will not forego anything that may exculpate him. Sometimes no doubt he may merely be afraid that he cannot get out the truth on the stand, but that is very seldom. Ordinarily, it is because he fears the disclosure which will result. Everybody knows this, and nobody can fail to make the inference, if he thinks about it at all; the accused's only safety is in having his failure kept as much as possible in the background. Hence the real protection, and the only practical protection, is in preventing the prosecution from using it as the basis of an inference of guilt. That is indeed a very real protection, for the prosecution's freedom would be a very deadly weapon; but the advantage derivable from an admonition by the judge that the jury shall make no such inference is wholly illusory; and only serves to put before them what will generally harm the accused, if it does anything at all.

The last point is as to the sufficiency of the evidence. There is nothing to be said about this as to Bruno, who was plainly guilty. Iacono was probably guilty also, but the evidence to establish his guilt was tenuous. All that was shown was that he had received in New York seven money orders from members of the Louisiana retailers, some of them taken out in assumed names. They were for about $6,800 in the aggregate, but it did not appear that they covered the proceeds from the sales of narcotics. Even if these documents were enough to convict Iacono of complicity in some sort of illicit enterprise — itself a somewhat gratuitous assumption — the accused were shown to have been a disreputable lot and all sorts of ventures may have been afoot among them. The remittances should have been more closely interwoven with the sale of narcotics. The case is close, but we think that not enough was shown.

Judgment reversed as to Iacono.

Judgment affirmed as to Bruno.

UNITED STATES v. BRUNO