Appeal from the United States District Court for the Northern District of Illinois. No. 71 CR 1025 THOMAS R. MCMILLEN, Judge.
Swygert, Chief Judge, Cummings and Stevens, Circuit Judges. Stevens, Circuit Judge, dissenting.
In November 1971, a 15-count indictment*fn1 was returned against eleven persons alleging narcotic offenses in violation of what was then 21 U.S.C. § 174. Appellant Carl Fiorito was named only in the first count, which charged him and the ten co-defendants with violating the conspiracy portion of said statute. The grand jury alleged that the eleven defendants conspired "to receive, conceal, buy, sell and facilitate the transportation, concealment and sale of narcotic drugs after being unlawfully imported and brought into the United States, knowing the same to have been imported and brought into the United States contrary to law." Parts of the conspiracy charged were that the defendants would unlawfully procure quantities of heroin and then sell and distribute it in the Northern District of Illinois, while concealing "the purpose of and the acts done in furtherance of the conspiracy." Six overt acts were specifically alleged in Count I. Fiorito was named only in the sixth, which read as follows:
"On or about February 15, 1971, defendant Fred Coduto had a telephone conversation with defendant Carl Fiorito in the Northern District of Illinois, Eastern Division."
After alleging that overt act, the indictment realleged each allegation in the remaining Counts as an overt act under Count I. Fiorito's name does not appear in the balance of the indictment.
For various reasons immaterial to Fiorito's appeal, the case against each of the co-defendants was resolved before and during trial, and he proceeded to verdict alone.
The February 15, 1971, telephone conversation between Fiorito and Coduto specified in Count I of the indictment as overt act 6 was obtained through a wire-tap on Coduto's phone. The transcript of that conversation was as follows:
CARL FIORITO: What do you say, Diavolo?
FRED CODUTO: What's happening?
CARL FIORITO: Did you do any good, like the last time?
FRED CODUTO: No, I, Madonna -- I saw you Saturday.
CARL FIORITO: Yah, I know.
FRED CODUTO: You know, ...