United States v. James Santore, Peter Casella, 270 F.2d 949, 3rd Cir. (1959)

270 F.
2d 949
UNITED STATES of America

v.
James SANTORE, Appellant, Peter Casella.
No. 12850.
United States Court of Appeals Third Circuit.

Argued Sept. 24, 1959.
Decided Oct. 12, 1959.
Claude O. Lanciano, Philadelphia, Pa., for appellant.

Chester A. Weidenburner, U.S. Atty., Newark, N.J., for appellee.
Before GOODRICH, STALEY and HASTIE, Circuit Judges.
STALEY, Circuit Judge.
Appellant, James Santore, presents two questions relative to the defense of

entrapment in this appeal: (1) whether the evidence in the instant case was
susceptible of only one conclusion and, therefore, a matter of law to be
determined by the district judge, and (2) whether the trial court erred in
submitting the issue of entrapment to the jury even though the evidence was
such as would normally present a jury question.
Santore was indicted and convicted on a four-count indictment charging

unlawful sale of heroin and opium which had been unlawfully brought into the
United States;1 unlawful receipt, concealment and purchase of heroin and
opium;2 unlawful sale of narcotics which were not in or from the original
stamped package;3 and unlawful sale of narcotics not 'in pursuance of a written
order * * * on a form * * * issued in blank for that purpose by the Secretary' of
the Treasury.4
Appellant does not dispute the sufficiency of the evidence to justify the
conviction for the offenses charged in the indictment, but rather relies
principally on alleged errors relative to the treatment accorded his defense of
entrapment.
Evidence on this issue was given by two government narcotics agents and the
appellant himself. The testimony of the government agents may be summarized
as follows: Acting upon information supplied by the Federal Bureau of
Narcotics in New York that Santore was engaged in the narcotics traffic, they
sought out the appellant. The information supplied to the agents indicated that
Santore was believed to operate at a luncheonette in Philadelphia, and on
February 26, 1957, agent Picini telephoned the luncheonette and asked for
appellant. Although Picini did not speak with Santore on the phone, the
unidentified party who answered apparently relayed the message to him and
arranged a meeting for the same evening. Upon arrival at the luncheonette,
Picini was taken to a political club where he met Santore. Picini indicated that a
man named 'Tee' from Baltimore had referred him to Santore. Santore asked
whether Picini knew anyone about town and specifically inquired concerning
Harry Riccobene, Marco Reginelli and others. Picini replied that although he
had heard of them, he did not know any of the individuals. He then informed
Santore that he was interested in purchasing heroin and that Tee had advised
him that the appellant 'could take care' of it. Santore replied that Riccobene was
the connection for purchasing narcotics in Philadelphia and although he was
then in jail his associates were still doing business. Furthermore, Santore
advised Picini that he could obtain heroin for him for $3,500 per quarter kilo.
The agent testified that this conversation took place within the 'first few
minutes' or within the first half hour of their first meeting. Subsequent to the
first meeting Picini met Frank Valle through the appellant in the basement of
Valle's home, and on March 20, 1957, the second government agent, Marshall,
met Santore. At this meeting the sum of $200 was given to appellant because
he 'needed a loan' and Santore informed the agent that he 'could take it off the
purchase price' of the quarter kilo of heroin that the agent ordered at or about
that time. Three days thereafter the heroin was delivered to the agents, and a
subsequent sale was consummated on April 3, 1957. In both cases the money
was paid directly to Santore and he delivered the narcotics. Subsequent
transactions occurred, but at no time preceding his arrest did he ever protest
against any participation in the narcotics traffic.
Appellant, on the other hand, testified that the first met agents Picini and
Marshall in the latter part of January, 1957, in a luncheonette in Philadelphia.
They asked for James Santore, introduced themselves as Mike Felani and John
Myers, indicated that they were from Baltimore and had been referred by a
friend of Santore's named Tee, and stated that they had money and wanted
some 'action' for it. Appellant stated that in the following three or four weeks he
was frequently contacted by either or both of the agents concerning their desire
to get their money working either in 'numbers' or 'horses' and that he was
unable to find anything for them. Finally, Picini asked him whether he could
get a connection for them from whom they could get narcotics. Santore
informed him he had nothing to do with 'that stuff' and had never had anything
to do with it. The agents complained that their money was dwindling and Picini
gave him $300 as a gift and urged him again to try to make a connection for
them. Appellant testified that he asked various people about 'stuff' and finally
found a man called Valle who said he could get some and informed him of the
price. The information was passed along to the agents who supplied the money
which he turned over to Valle from whom he got instructions regarding the
delivery of the heroin on March 23, 1957. There was additional testimony as to
subsequent pressure from the agents for more narcotics and new contacts.
6
Even a summary of the evidence on this issue indicates the insubstantial nature
of the first issue raised by appellant. The evidence elicited at the trial was
certainly susceptible of more than one conclusion. Appellant inferentially
recognizes this fact, for he urges this court to ignore much of the testimony of
the government agents, asserting that it is too incredible to be believed. On the
contrary, it is not only believable but it was accepted by a jury. We find no
substance in this contention and therefore must consider the second point raised
by appellant.
Relying entirely upon the Supreme Court's opinion in Sherman v. United

States, 1958, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848, appellant asserts that
the trial court should have decided whether or not he had been entrapped even
though the issue involved controverted questions of fact. A reading of the cited
opinion clearly shows that his reliance is misplaced. Although support for this
proposition may be found in the concurring opinion of Justice Frankfurter, the
majority opinion delivered by Chief Justice Warren clearly refused to
reconsider the principles enunciated in Sorrells v. United States, 1932, 287 U.S.
435, 53 S.Ct. 210, 77 L.Ed. 413, and applied them to the disposition of the
case. In Sorrells the judgment was reversed, for the Supreme Court found that
the trial court was in error in refusing to submit the issue of entrapment to the
jury. As noted in the Sherman opinion, the case in the Courts of Appeals since
Sorrells have unanimously concluded that unless it can be decided as a matter
of law, the issue of whether a defendant has been entrapped is for the jury. This
court has so held on a number of occasions. United States v. Klosterman, 3 Cir.,
1957, 248 F.2d 191; United States v. Sawyer, 3 Cir., 1954, 210 F.2d 169;
United States v. Brandenburg, 3 Cir., 1947, 162 F.2d 980, certiorari denied 332
U.S. 769, 68 S.Ct. 80, 92 L.Ed. 354. The instant case falls squarely within that
principle.
On the same day that Sherman was decided, the Supreme Court decided
Masciale v. United States, 1958, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859. In
that case, as in this, there was conflicting evidence on the issue of entrapment,
and the district court submitted the issue to the jury. The Supreme Court upheld
this action.
9
The other point raised by the appellant is without merit.
10
The judgment will be affirmed.
21 U.S.C.A. 174
21 U.S.C.A. 174
26 U.S.C. 4704(a)
26 U.S.C. 4705(a)

United States v. James Santore, Peter Casella, 270 F.2d 949, 3rd Cir. (1959)

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United States v. James Santore, Peter Casella, 270 F.2d 949, 3rd Cir. (1959)

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270 F.

UNITED STATES of America

United States Court of Appeals Third Circuit.

Claude O. Lanciano, Philadelphia, Pa., for appellant.

Appellant, James Santore, presents two questions relative to the defense of

Santore was indicted and convicted on a four-count indictment charging

Relying entirely upon the Supreme Court's opinion in Sherman v. United

The other point raised by the appellant is without merit.

The judgment will be affirmed.

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