holding that “the evidence reveals a sufficient basis for the jury to be satisfied beyond a reasonable doubt that each of the asserted transactions took place, but no evidence linking them together in a single overall conspiracy”
How later courts described this case
- holding that “the evidence reveals a sufficient basis for the jury to be satisfied beyond a reasonable doubt that each of the asserted transactions took place, but no evidence linking them together in a single overall conspiracy”
- holding there was a prejudicial variance where the jury spent “two entire days listening to obviously shocking and inflammatory discussions about assault, kidnapping, guns and narcotics” and concluding the prejudicial nature of this evidence “cannot be underestimated. No defendant ought to have a jury which is considering his guilt or innocence hear evidence of this sort absent proof connecting him with the subject matter discussed”
- finding “sufficient basis for the jury to be satisfied beyond a reasonable doubt that each of the asserted transactions took place, but no evidence linking them together in a single overall conspiracy”
- holding that defendant was prejudiced at trial by two days of testimony about assault, kidnapping, guns and narcotics although there was no evidence linking the defendant to these acts
Written by the judges who cited it.
The opinion
MOORE, Circuit Judge
(concurring and dissenting):
The indictment in issue charges twenty-nine defendants with a conspiracy to distribute and possess with intent to distribute narcotic drugs. There is no question of the involvement of the appellants in this questionable enterprise. The majority concerns itself with the procedural niceties of bringing the gravity of their respective participations before a jury for determination.
The facts portraying the roles of these drug traffickers have been so ably and lucidly set forth by Judge Van Graafei-land that I will mention only briefly my cause of disagreement with the legal conclusions drawn therefrom.
As stated by the majority, Rossi and Coralluzzo were the principal participants. They drew around them satellites of more or less magnitude. In any narcotics conspiracy there is bound to be a wide difference both in participation and in degree of culpability. And every defendant need not participate in every transaction. The critical elements are possession and distribution and there can be no question but that both were convincingly (to the jury) established.
My disagreement with the majority is that they regard the various transactions involved in obtaining the drugs as separate conspiracies, whereas I look upon *161 the swindles, the so-called rip-offs and related activities as merely the means used to obtain possession without payment. Thus, for example, I find no separate convocation having as its object the theft from Flynn. He only entered the picture as a source of narcotics. In short, some of the defendants gained possession of the drugs by intimidation and force. But, as stated, the means employed did not lessen the primary objective which was to possess so as to distribute.
There would be little point in re-analyzing the respective degrees of culpability of each of the defendants since a re-trial may eventually take place. In every multi-defendant narcotics trial there are bound to be periods during which certain defendants will have to listen to testimony directed towards the guilt of others. Were the possibility of some spill-over effect held to be reversibly prejudicial, a principle of individual trials would be created. However, such is not the law.
I would, therefore, affirm the convictions of Capotorto, DeLuca, Angley and Guerra and reverse and remand for a new trial as to Bertolotti, Camperlingo and Thompson.