(concurring in part, and dissenting in part).
The travail of this adjudication has wrought a diversity of opinion in the court as to correct disposition of the appeal of certain of the defendants; as a result it seems to be requisite that the views of each component of the court be made a matter of record.
I concur in the affirmance of the convictions of Casella, D’Aria, Massi and Orlando.
I concur in the conviction of Santore on counts One, Three and Five, and dissent from the reversal of his conviction on count Two, and would affirm as to that.
I concur in the conviction of Lo Piccolo on count Five, and dissent from the reversal as to him on count Two, and would affirm.
I dissent from the reversal of the convictions of Narducci and Tarlentino.
The reasons upon which the foregoing are based can be briefly stated:
At the outset it is to be remembered that this court is unanimous in holding that there was one conspiracy as charged in the indictment, and that all of these defendants were parties to it. The analogy to a partnership is of course not complete, but that terminology is deemed to be sufficiently apt to indicate the true relationship of defendants one to the other.
Since the agreement which the law perceives under such circumstances becomes visible in the acts of those who carry it into effect, the precise roles assigned to each are seldom if ever entirely revealed.
This means that it is an overambitious task to spell out to a nicety the exact allocation of duties of each individual in the performance of the joint task. It may be doubted if the inner workings of such a conspiracy are strictly organized. Probably individual performance is improvised on consent, according to *72the exigencies attending the delivery of a given package of the contraband.
If the foregoing betrays a reasonably correct understanding of such operations as this court is now dealing with, it would seem to follow that the conspiracy itself is the basic element of the picture as a whole, and once that has been found to be present, such details as “constructive possession” as opposed to manual possession, are of unimportant significance.
It is with true deference that I venture to suggest that Judge HAND’S conception of “possession” as meaning “either actual custody of the chattel, or at least that relation to the custodian that makes him unconditionally subject to the ‘possessor’s’ demand for custody” is not dispositive in dealing with the members of such a criminal conspiracy as this.
In such a matter it seems to me that it is each individual’s relation to the contraband (not to one who may be temporarily its custodian) upon which the issue of possession turns. Since the contraband is in the joint custody of all, and since it may pass from hand to hand within the group — and probably does— as circumstances may dictate, the prosecution should not be called upon to prove who it was at a given instant of time that possessed any capacity to make the demand referred to in the foregoing quotation.
The enforcing authorities ought not to be required at all times to be adept at reading the details of what is by its very nature, a thimblerig enterprise.
Once such a joint and coordinated activity has been disclosed, as it was in this case, the later developments must be judged in the light of the partnership relationship so established, because as the law sees it, the conspiracy is not obliterated by the substantive offenses. It seems that the partnership relation, not that of principal and agent, points the path to decision.
That is in outline the premise from which the conclusions hereinabove stated are reached.
Santore.
This dissent has to do with the reversal as to count Two, the sale of December 11, 1957 which was accomplished through the placing of 16 ounces S90 grains of heroin in a bureau drawer in the agents’ room at the Hotel Edison. To quote from Judge Waterman’s careful recital of the facts, Casella had visited Lo Piccolo’s apartment where the contraband had been cached:
“Upon his (Casella’s) return to the hotel where Santore, Marshall (agent) and Picini (agent) were waiting he said that the drugs would be delivered that evening at 9:00 P.M. It was agreed (emphasis supplied) that the drugs were to be placed in a bureau drawer in the agents’ room at the Hotel Edison while they were absent from it.” Again:
“No one had gone into the agents’ room except Ignazio Orlando. When the agents looked in the bureau they found a package containing a half-kilo of heroin. Picini then, at Casella’s direction, gave $6,000 to Santore.”
To me, the above recited agreement to which Santore was evidently a party, and the finding of his membership in the conspiracy, plus the payment to him of $6,000, made him an active and controlling participant in the elaborately concealed delivery.
He had sufficient control over that movement to collect the proceeds upon its successful completion. In other words, he was of managerial status in the enterprise, and should be so dealt with.
Lo Piccolo.
Again there is a reversal as to count Two (the said sale of December 11, 1957).
This was the subject of a conversation on the previous evening; the said agents and Santore and Casella, while dining, were discussing a purchase of heroin. Lo Piccolo entered the restaurant, and Casella joined him but apart from the others. After those two talked, Casella *73returned to the group and stated that all desired arrangements had been made.
The court’s opinion contains the following :
“Despite his vehement protestations to the contrary, there is no doubt in our minds that the Government established his participation in that sale (Dec. 11, 1957) and that he was a member of the peddling conspiracy.”
Despite the foregoing, the opinion later says: that there was no evidence that Lo Piccolo ever possessed heroin as early as December 11, 1957, physically, or by controlling the disposition of it, or otherwise.
It seems to me that the foregoing is inconsistent with the evidence. The heroin is shown to have been removed from Lo Piccolo’s apartment by young Orlando. Casella did not report to the agents on December 11 that the heroin would be delivered at the agents’ room as has been stated, until he had visited the apartment building where Lo Piccolo lived. If Lo Piccolo did not have custody and control over his own apartment, it is to be supposed that he would have submitted testimony to that effect. Of course the version that young Orlando would have given, touching his removal of the contraband from Lo Piccolo’s apartment and delivery to the agents’ room, has not been revealed, but in my opinion it was not needed.
Lo Piccolo’s place in the conspiracy having been shown, it matters not whether he secreted the heroin as shown, of his own volition, or because Casella told him to. While it was in his apartment, he had sufficient possession of it to enable him to summon the authorities to relieve him of it, or otherwise dispose of it so as to frustrate the purpose of his talk on the previous evening with Casella. Of course he did neither.
It is required of a trial judge that he be fair and impartial, but not that he be feeble-minded.
I think Judge Noonan was right in convicting Lo Piccolo on this count, and therefore I would affirm.
Tarlentino and Narducci.
This court reverses as to counts Four and Five. The former charges these defendants with possession on January 21, 1958 of over six pounds of heroin, and with the conspiracy as charged in count Five.
As to the latter, this court finds these defendants to have been guilty, but nonetheless reverses their conviction. I can imagine no more triumphant non-sequi-tur.
In dealing with count Four, it is to be remembered that the said package of heroin was found in Napolitano’s (not a defendant named) car on January 21, 1958. The facts show that on the previous evening these defendants drove to the place where Napolitano’s car (in which the package had been placed) was parked; Tarlentino remained in the car in which they arrived while Narducci went to that of Napolitano, opened the trunk, lifted the package, and while in the act of so doing became aware of the presence of certain agents, dropped the package back into the trunk, and rejoined Tarlentino.
Thus the character and contents of the package have been shown, and the conduct of these two defendants in seeking to further its delivery is clearly revealed. Since it is familiar law that success need not attend the object of a conspiracy in order to establish its existence, I fail to see how the reversal as to the Fifth count can be justified.
The court’s opinion states that “there was no evidence whatsoever to indicate that they had knowledge that the drugs in the package were contraband drugs, and because we are not able to say from the record that they were ever in possession, actual or constructive, of that package * * *
As to the possession, there was a joint effort to further delivery, by the approach to Napolitano’s car. If they had not known what was in its trunk, the *74errand was of no apparent purpose. The grasping of the package by Nar-ducci was either with kn'owledge of its character, or in ignorance of it. There is no middle ground. That temporary possession was surrendered, but for a brief period of time it existed. The replacement of the package was consistent only with a purpose of concealment, and otherwise would not have been resorted to.
This circumstantial evidence was not consistent with innocence in any degree that is perceptible to me.
Thus as to these defendants I would affirm as to both counts.
In sum, it seems to the writer that the case comes before this court clothed with the usual immunity from reversal in the absence of a showing that the decision of the trial judge was clearly erroneous. To my mind it was clearly correct, and should be affirmed in its entirety.