United States v. Nardone
| Decision Date | 07 April 1942 |
| Docket Number | No. 208.,208. |
| Parties | UNITED STATES v. NARDONE et al. |
| Court | U.S. Court of Appeals — Second Circuit |
David V. Cahill and Louis Halle, both of New York City, for appellants.
Maxwell S. McKnight and Mathias F. Correa, U. S. Atty., both of New York City, for appellee.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
This case comes before us now for the third time. The general nature of the charge and the evidence in support of it have been so fully set out in the two opinions of the Supreme Court (302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314; 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307), and in our own (2 Cir., 90 F.2d 630; 2 Cir., 106 F.2d 41), that we may dispense with any introduction and proceed at once to the points now mooted. The chief of these is whether the information got by "tapping" telephone wires and unlawfully seizing telegrams so far infiltrated the prosecution's preparation of the case as to make incompetent some part of the evidence introduced at the trial. Following the direction of the Supreme Court upon the second appeal, the trial judge held a preliminary hearing in which the prosecution accepted the burden of proving that none of the evidence which it proposed to use, and which it later did use, had been the result of leads from the "taps" and telegrams; and at the close of this hearing findings were made, among which was the following: "the testimony and evidence offered by the Government at this trial were derived wholly and completely from sources independent of any intercepted * * * communications, or information, clues or leads obtained therefrom." Such a finding should, we think, enjoy the same finality as a judge's finding in a civil action. Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. We address ourselves therefore to the evidence which supported it.
The case was principally prepared by one, Dunigan, an "assistant supervisor of the Alcohol Tax Unit." An informer named Murray told him some months before the "taps" or seizures were made that the defendants Nardone and Hoffman were members of a ring of alcohol smugglers which also included Leveque and Erickson, each of whom was the owner of a "rum-running" vessel. Dunigan learned later that the rendezvous of these four men was the lobby of the Hotel Astor in New York, where they were seen also in company with Geiger — a radio operator working for Leveque — Kleb and Saunders. On December 20, 1935, after he had had the confederates under observation for some time, Dunigan began to "tap" the telephones which they used to talk with their accomplices, and this he continued until March 20, 1936, when Leveque, Nardone and some of the others were arrested. It was the admission of these "taps" that caused the first reversal. On December 16th Dunigan had already seized three telegrams under circumstances which — although the prosecution contests the point — we shall arguendo assume made the seizure unlawful. These had all been sent by Erickson; two of them were money orders transmitting funds to accomplices in Nova Scotia to finance the vessels carrying the alcohol, and the third was merely an appointment for a telephone talk on the same day. Much later — in April — Dunigan also seized a number of other telegrams, all but two of which were again money orders transmitting money from New York to Nova Scotia. (The other two cryptic messages could have played no part in the preparation of the trial.) The importance of the first three telegrams was that they "absolutely convinced" Dunigan "that a conspiracy had been entered into and it warranted any further investigation that was possible"; they led him "from the suspicious stage to the factual stage"; they were part of what aided in his "conclusion that Nardone and the others were in the conspiracy." The prosecution did not prove that they had not led Dunigan to begin to "tap" the telephones four days later; or that without the "taps" he would have pressed through his investigation to a successful conclusion.
However, neither telegrams nor "taps" were introduced at the trial; nor did they lead to the discovery of any of the evidence that was introduced, or contribute to the willingness of the witnesses to speak. The only ones as to which this could have been possible even theoretically were Leveque, Geiger, Lancaster and Velez. Leveque was the head and front of the ring and had pleaded guilty to two earlier indictments, one apparently laying the same crime as that now before us, and the other an earlier smuggling in South Carolina. Before the second trial came on he had served his time and had been released; but he was still under indictment for the Keansburg smuggling of November 22, 1935, which, since it had resulted in some shooting, became known at once well in advance of the seizure of the three telegrams. The only reasonable conclusion is that Leveque consented to...
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