Before Schnackenberg, Major and Knoch, Circuit Judges.
Defendant, Phillip Vittoria, was indicted on a charge of feloniously conspiring with five codefendants two other named persons, and others whose names were unknown, beginning on or about July 1, 1957, and continuing to the date of indictment, November 20, 1958, to receive, conceal, buy, sell and facilitate the transportation and concealment of narcotics, in violation of Title 21 U.S.C.A. § 174, as amended by the Narcotic Control Act of 1956. All defendants waived trial by jury. During the course of trial, the five codefendants withdrew pleas of not guilty and entered pleas of guilty. The trial proceeded on Vittoria's plea of not guilty. The District Court found Vittoria guilty as charged in the indictment and sentenced him to imprisonment for a term of twelve years.
In his appeal from that judgment, defendant argues that he was not proven to be a part of the conspiracy charged in the indictment; that the evidence shows, at worst, only that he may have been engaged in some criminal activity apart from the conspiracy charged; that there is a fatal variance between the indictment and proof; and that evidence of acts and declarations of codefendants and purported coconspirators done and said out of defendant's presence, and evidence obtained in violation of the statutes of Illinois by "electronic eavesdropping" was improperly admitted against defendant.
One of the alleged coconspirators but not a codefendant was James V.Chiaro. He testified that he, with codefendant John Dispensa, or on his instructions, made numerous trips to New York City, during which Chiaro carried a brief case given him by Dispensa; that, in New York, on some of the trips, Chiaro would hand the brief case to codefendants Saverio Schifano, Dominick Gentile, and Nicholas Exposito, sometimes individually, sometimes together, to whom money would be paid; and that on return, the brief case would contain a white powdery substance.
Chiaro testified further that in Chicago, on return from New York, on Dispensa's instructions, or with Dispensa, he would measure out this white substance, adding quinine and milk sugar, into small, tinfoil wrapped packages, which would be distributed to codefendant Morris Rosenguard, Lawrence Lemons, an alleged coconspirator and others. He testified further that on March 2, 1958, he had acquired such a white powdery substance, as heretofore indicated, and had packaged it in the manner aforesaid. Two of the small packages were delivered to Lemons and the rest placed in a safety deposit box. Later Chiaro had delivered some of the material from the safety deposit box to Rosenguard. Chiaro testified that he sold the remainder of the contents of the safety deposit box, on three different occasions, to a buyer who, unknown to Chiaro, was Federal Narcotic Agent Everett Paul Leek. Agent Leek testified to these transactions. The substance sold to Agent Leek on these occasions was examined by a chemist and found in each case to contain heroin hydrochloride. Chiaro was arrested on June 26, 1958, after which he assisted the Federal Bureau of Narcotics. On several occasions he engaged in conversations with various members of the alleged conspiracy, including Vittoria, while carrying electronic equipment to increase the audibility of those conversations and to record them on tape.
The details of Chiaro's testimony were in large part corroborated by such evidence as aeroplane tickets, hotel and motel registration records, and the record of his arrest and fine while traveling in Dispensa's automobile on one trip. There was substantial evidence to support the finding that a conspiracy existed to buy heroin in New York City and package and distribute it in Chicago.
Chiaro testified that he met defendant, Phillip Vittoria, in the summer of 1957. He stated that after one of the trips to New York, in the summer of 1957, John Dispensa had come to Chiaro's home, in the 1500 block east on 51st, in Chicago, and had asked Chiaro to deliver something. Chiaro testified further that he had gone downstairs with Dispensa, had entered Dispensa's automobile, and had waited there with Dispensa.
After a while, Vittoria, in another automobile, pulled up about half a block away. Dispensa gave Chiaro a tinfoil package which corresponded in appearance to the packages in which Chiaro and Dispensa had placed the white substance brought from New York. Chiaro took the package over to Vittoria, who rolled down his automobile window and took it. Chiaro merely said, "This is from John." When he returned to Dispensa's automobile, Dispensa paid Chiaro $10.
About two weeks later, Dispensa told Chiaro to get a package from Vittoria. Dispensa and Chiaro both went to meet Vittoria. Dispensa then gave a package to Vittoria, who gave it to Chiaro with instructions to take Vittoria's automobile, drive to 57th and Princeton and wait. Chiaro did so. Later, both Dispensa and Vittoria pulled up behind Chiaro in Dispensa's automobile. Chiaro walked back to them and was told by one or the other to put the package among the weeds near the railroad at 56th and Wallace. After doing that, Chiaro returned to Dispensa who told him that the package couldn't be found, and instructed him to get the package and give it to someone who would be walking down the street. Chiaro did get the package out of the weeds, and seeing Lemons and Vittoria coming down the street, gave it to Lemons. Chiaro testified further that in the summer of 1957, he had asked Phillip Vittoria to speak to Dispensa about $200 which Chiaro needed, and that the following conversation took place:
"Chiaro: Philly, I thought you had some interest in this.
"Vittoria: I do. I'm supposed to have a half interest in this. I'm supposed to be - tell things to and know what's going on myself. I sure will tell him to give it to you." [Transcript p. 244]
Defendant's counsel argues that these statements by Vittoria may well have been lies designed to draw information from Chiaro. This issue would be decided by the trier of the facts. It was equally reasonable to accept these statements as factually true.
Vittoria lived at 256 West 23rd Place, in Chicago. On two occasions, Federal Narcotic Agents observed him conversing with Dispensa at Dispensa's Pizzeria in Evergreen Park. The Illinois Bell Telephone Company's records showed several calls, made in the summer and fall of 1957, from a telephone listed to Dispensa at "Connie's Pizza Pie" in Evergreen Park, to a telephone for which the listed subscriber from March 9, 1948 to the time of the trial was Bert Vittoria at 256 West 23rd Place, Chicago. Federal Narcotic Agent Irving Lipschutz testified that Phillip Vittoria was arrested at that address, where he resided with his brother who was present at the time. The brother's name was not stated, however. After his arrest on November 20, 1958, Philip Vittoria was placed in a cell with John Dispensa. Vittoria then stated that he did not know Dispensa. This was apparently a false exculpatory statement indicating guilty consciousness. United States v. Farina, 2 Cir., 1954, 218 F.2d 62, 63. ...