UNITED STATES v. FALCONE No. 193.
109 F.2d 579 (1940)
UNITED STATES v. FALCONE et al.
Circuit Court of Appeals, Second Circuit.
February 13, 1940.
Daniel H. Prior of Albany, N. Y., for Salvatore Falcone and Joseph Falcone.
Roger O. Baldwin, of Syracuse, N.Y., and Jack J. Danella, of Utica, N.Y., for Alberico.
Stanley Palewski, of Utica, N. Y., for John Nole.
Irving K. Baxter of Utica, N. Y., for Lawrence Grimaldi, Nicholas Nole, Salvatore Graniero, and Frank Soldano.
David D. Joselit, of Syracuse, N. Y., and Ralph L. Emmons, U. S. Atty., for appellee.
Before L. HAND, CHASE, and CLARK, Circuit Judges.
L. HAND, Circuit Judge.
These appeals are from convictions for a conspiracy to operate illicit stills. There were originally sixty-eight defendants, but the appeals before us concern only eight, which may be divided into two groups: one those of the appellants, Salvatore and Joseph Falcone, Alberico, John and Nicholas Nole; the other, of Grimaldi, Graniero and Soldano. Two other defendants, Milozzo and Melito, have withdrawn their appeals. The second group were actual distillers; the first supplied them and other distillers with sugar, yeast, and cans, out of which the alcohol was distilled, or in which it was sold. The evidence disclosed that in the year 1937 and 1938 within a radius of fifty miles from the City of Utica some twenty-two illicit stills had been set up, which were in each case to some extent operated after the same pattern; that is to say, real property was bought or leased, motor cars were registered, and applications for electric and water services were made, all in fictitious names; the equipment and materials were bought from the same persons; and the distillers frequented the same café or saloon, where they talked together. Grimaldi, Graniero and Soldano were all operators of one or more stills; the evidence of their guilt was ample; and they complain only of the manner in which the trial was conducted. We shall reserve their objections till the end, because the most serious matter is as to the sufficiency of the evidence to support the verdict against the others.
The case against Joseph Falcone was that during the year 1937 he sold sugar to a number of grocers in Utica, who in turn sold to the distillers. He was a jobber in Utica, and bought his supply from a New York firm of sugar brokers; between March first and September 14, 1937, he bought 8,600 bags of sugar of 100 pounds each, which he disposed of to three customers: Frank Bonomo & Company, Pauline Aiello, and Alberico and Funicello, all wholesale grocers in Utica. Some of the bags in which this sugar was delivered were later found at the stills, when these were raided by the officials; and Falcone was seen on one occasion assisting in delivering the sugar at Bonomo's warehouse, when a truckload arrived. His business in sugar was far greater while the stills were active than either before they were set up, or after they were seized, and we shall assume that the evidence was enough to charge him with notice that his customers were supplying the distillers. The evidence against Salvatore Falcone went no further than to show in various ways that he helped his brother in purchase of sugar during the period in question; there is really nothing to show that he knew its eventual destination. However, since in the view we take of the law he was equally innocent if he did, in disposing of his case we shall assume that he did know. Alberico was a member of the firm of Alberico and Funicello who, as we have just said, were buyers from Joseph Falcone. Alberico's purchases and sales of sugar also varied with the activity of the stills. In the first three months of 1937, when there were five or six of these operating in or about Utica, his purchases ran up to over a half-million pounds; after they had been raided in April, his business fell off to very little; when they became active again in September, his purchases rose again. A like correspondence, though less exact, was proved for the early part of the year 1938. A jury might also have taken the conversation which he had with one of the distillers, Morreale, as evidence of his knowledge of the kind of business that he was supplying. While the stills were active, Alberico also did a large business in five-gallon cans which he sold direct to the distillers. Many cans sold by him were found at the stills when they were raided. The evidence against Nicholas Nole consisted of his sales of yeast and cans to the distillers. The prosecution proved that in the spring of 1937 he had ordered and received shipments of imported yeast through a forwarding company of which he was the owner; and that in July and August of that year he bought of the Atlantic Yeast Company 8,300 pounds of yeast packed in wrappers, made expressly for the "Acme Yeast Company", a name under which he did business by virtue of a certificate, taken out for him by a cousin. Many of
In the light of all this, it is apparent that the first question is whether the seller of goods, in themselves innocent, becomes a conspirator with — or, what is in substance the same thing, an abettor of — the buyer because he knows that the buyer means to use the goods to commit a crime. That came up a number of times in circuit courts of appeal while the Eighteenth Amendment was in force, and the answer was not entirely uniform. The first case we have found is Pattis v. United States, 9 Cir.,
We need consider only three of the four points raised by Soldano, Graniero and Grimaldi. The first is that the judge allowed some of the other accused to plead guilty in the presence of the jury. The argument is that in doing so, these confessed that they had been parties to a conspiracy, and thus supplied a link in the evidence necessary to convict the appellants, without the sanction of an oath, or the protection of cross-examination. The same objection has been several times raised, and always, so far as we have found, without success. Grunberg v. United States, 1 Cir., 145 F. 81, 86; Schliefer v. United States, 3 Cir., 288 F. 368; United States v. Rollnick, 2 Cir.,
The second point is that some of the evidence was seized upon a defective search warrant, the defect being that the place to be searched was described as a "Dwelling house, No. 1166 Webster Avenue", without adding that it was in Utica, New York. The warrant is not in the record and we do not know where it was issued; if in Utica, the point is utterly immaterial; and even if it was issued elsewhere, the omission was not vital. A warrant must indeed be specific enough not to allow the officers latitude to search at their choice; but the chance that there might be two dwelling houses at the same street and number in different cities, was so remote as to be negligible. All that is required is reasonable certainty of identification. Steele v. United States, No. 1,
The last point is the admission of evidence of the existence of illicit stills with which the appellants were not shown to have been connected, and the judge's instruction to the jury that this bore upon the existence of the conspiracy, even though all the conspirators had not personally been connected with those particular stills. The prosecution was trying to prove that the twenty-two stills were being operated in concert; it would be most unlikely that all the conspirators would be operating every still; there would be a division of labor in this, as in lawful enterprises. Even though all the stills were not shown to have been run under a single scheme, it would not be fatal to the prosecution; at worst it would be only a variance, and that not a material one, for there was some concerted scheme, and if the prosecution failed to prove that it had spread as far as the indictment alleged, it did not matter. It is quite true that there was a danger that the existence of so much illicit distilling might predispose the jury to assume that all the accused were connected with it; but that was unavoidable if the prosecution was to be allowed to try to prove the scheme as alleged. It might be held as it used to be, that variances were material just because of that danger, but today courts are disposed more to rely upon the ability of a jury to distinguish between those who are in fact involved in the crime, and those who are not; and there can be little doubt that in the long run this latitude promotes the administration of justice.
The convictions of Salvatore and Joseph Falcone, of Alberico and of Nicholas and John Nole are reversed. The convictions of Soldano, Grimaldi and Graniero are affirmed.
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