106 F.2d 41 (2nd Cir. 1939), 412, United States v. Nardone

Docket Nº:412.
Citation:106 F.2d 41
Party Name:UNITED STATES v. NARDONE et al.
Case Date:July 20, 1939
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 41

106 F.2d 41 (2nd Cir. 1939)

UNITED STATES

v.

NARDONE et al.

No. 412.

United States Court of Appeals, Second Circuit.

July 20, 1939

Page 42

David V. Cahill, of New York City, for Frank Carmine Nardone.

Wegman & Climenko, of New York City (Jesse Climenko and Eugene J. Davidson, both of New York City, of counsel), for appellant Hoffman.

Louis Halle, of New York City, for Robert Gottfried.

John T. Cahill, U.S. Atty., of New York City (Lester C. Dunigan and Maxwell S. McKnight, Asst. U.S. Attys., both of New York City, of counsel), for the United States.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

The accused appeal from a judgment convicting them under an indictment in three counts two for smuggling and concealing alcohol, and a third for a conspiracy to do so. We affirmed an earlier conviction under the same indictment (United States v. Nardone, 2 Cir., 90 F.2d 630), but the Supreme Court reversed our judgment (Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314) because of the admission of certain telephone 'taps' which we thought competent, but they did not. Upon the present trial the same transactions were proved by what, generally speaking, was the same evidence, omitting the 'taps'; and the main question raised by these appeals is whether the judge improperly refused to allow the accused to examine the prosecution as to the uses to which it had put the information unlawfully gained; that is, as to what part of the evidence introduced was indirectly procured as a result of tapping the wires. We may refer to the statement of facts in our first opinion to show the general character of the crime charged and proved, and before discussing the main issue, we will take up some of the incidental objections raised. Nardone says that there was no evidence against him except the declarations of other parties to the venture, which did not become competent until he had been independently connected. The principle is right, but its application is wrong. The prosecution directly proved that he was habitually in the company of those conspirators who were openly connected with the smuggling; and Geiger, a radio operator, swore that at the interview at which LeVeque, one of the conceded smugglers, was giving him his instructions, both Nardone and Hoffman were present; they would not have been, had they been merely disinterested observers. Another witness, McAdam, said that LeVeque introduced Nardone to him as his partner, and that the project was freely discussed before him. Apparently Nardone was one of the ringleaders. Gottfried also was repeatedly in the company of the smugglers at their customary places of meeting. His guilt was clearly enough shown by his effort

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to destroy incriminating papers at the time of his arrest. He went to a water closet off the bar where the arrests took place and threw into the flush-tank among other papers, the business cards of one, Mathiasen, and one Callahan. The reason for supposing that these came from Gottfried rather than from Nardone, who had earlier gone into the same water closet, is that one, Mathiasen, swore that Gottfried had arranged with him to have Callahan, the owner of the Southern Sword, board that ship when she entered New York Harbor, loaded with alcohol on March 17, 1936, the date of the smuggling in the substantive counts. It is reasonable to conclude that these papers at least he tried to conceal, even if it was Nardone who threw away those relating to the places where the Isabelle H. and the Southern Sword were to meet in southern waters. Hoffman's connection was also sufficiently established. He had paid for the gasoline to run the trucks that took the alcohol from the Pronton in December 1934 or January 1935, and he too was repeatedly seen in the company of the others. He objects that the conspiracy was laid as commencing on January 2, 1935, and that it was not shown that he paid for the gasoline after it began. That is irrelevant; his earlier complicity might not have...

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