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...

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