127 F.2d 521 (2nd Cir. 1942), 208, United States v. Nardone

Docket Nº:208.
Citation:127 F.2d 521
Party Name:UNITED STATES v. NARDONE et al.
Case Date:April 07, 1942
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 521

127 F.2d 521 (2nd Cir. 1942)



NARDONE et al.

No. 208.

United States Court of Appeals, Second Circuit.

April 7, 1942

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.

L. HAND, Circuit Judge.

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

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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...

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