United States v. Nardone, 412.

• Citation: 106 F.2d 41
• Decision Date: 09 October 1939
• Docket Number: No. 412.,412.
• Parties: UNITED STATES v. NARDONE et al.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

106 F.2d 41 (1939)

UNITED STATES v. NARDONE et al.

No. 412.

Circuit Court of Appeals, Second Circuit.

July 20, 1939.

Writ of Certiorari Granted October 9, 1939.

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.

Writ of Certiorari Granted October 9, 1939. See 60 S.Ct. 103, 84 L.Ed. ___.

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 to destroy incriminating papers at the time of his arrest. He went to a watercloset 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 watercloset, 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 been enough, had it not been followed by his later association with the smugglers; but when that was proved, it was reasonable to infer that it was in continuation of the original course of dealing, which took its color from what had gone before. There was plainly enough to support a verdict against all these men — certainly as to the conspiracy.

Objection was taken to the admission of several bits of testimony other than that procured by the "taps". The prosecution was allowed to prove the landing at Keansburg, New Jersey, of some alcohol from the Pronto, which was interrupted by Treasury agents while it was in progress, and which developed into a shooting affray. This was altogether competent as in execution of the conspiracy. Several of the principal smugglers had been present at the scene and on the next day LeVeque was excitedly discussing it in the restaurant, where he had met several of the others, among them Nardone. The objection appears to be based upon the notion that the evidence was incompetent because it was likely to divert the jury's mind from the crime to one of its distracting incidents. That is often true, but is never a reason for refusing to admit anything that goes to...