134 F.2d 362 (2nd Cir. 1943), 162, United States v. Valenti

Docket Nº:162.
Citation:134 F.2d 362
Case Date:March 11, 1943
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 362

134 F.2d 362 (2nd Cir. 1943)




No. 162.

United States Court of Appeals, Second Circuit.

March 11, 1943

Page 363

I. Maurice Wormser, of New York City (Edmund Clynes, of Rochester, N.Y., on the brief), for appellant.

Goodman A. Sarachan, Asst. U.S. Atty., of Rochester, N.Y. (George L. Grobe, U.S. Atty., of Buffalo, N.Y., on the brief), for appellee.

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

CLARK Circuit Judge.

Appellant, Frank Valenti, was indicted with twenty others for a conspiracy to violate the internal revenue laws between January 15, 1935, and August 31, 1941. Of those indicted, five for various reasons were not brought to trial, seven pleaded guilty, four were acquitted, and four, including appellant, were convicted by a jury. Appellant alone has appealed. He challenges the sufficiency of the evidence and also the admissibility of an answer made by a government witness on cross-examination.

At the trial the government produced extensive and convincing evidence of a conspiracy to manufacture and distribute illicit alcohol in violation of the internal revenue laws operating between 1935 and 1941 in the Western District of New York. including the city of Rochester, where defendant resided. Indeed, appellant does not seriously dispute this except to say that proof was only of a number of small conspiracies, and not of a single general conspiracy. It appeared, however, that during this period the confessed and convicted defendants other than appellant were variously connected with six illicit distilleries and three alcohol drops seized by the federal authorities. They purchased and operated trucks and automobiles, which they sometimes equipped with extra springs and frequently registered deceptively, three and four at a time, in the names of female relatives who did not themselves drive. They took these vehicles to the same garage for servicing, and the charges were always billed to two of their number, Frank Dimino and Joseph Valenti. They acted throughout with a concert and a unity of purpose which they jury could properly find to constitute a single general conspiracy. The substantial question is whether appellant was associated with this conspiracy. The evidence offered by the government to prove the connection, as necessarily happens in this type of case, is largely circumstantial.

Appellant himself was charged with three overt acts. In 1935, he was arrested upon arriving by automobile at a seized still. He was in overalls, and in his car were found twelve bags of coke and several five-gallon cans. In 1937, a still was discovered in his garage; and he was indicted and sentenced to jail for possessing and failing to register that still. In 1939, his automobile, in which he and two confessed conspirators, Frank Dimino and John DeVita, were riding, with Dimino driving, was stopped for passing a red light after leaving DeVita's home in Jamestown, New York, and was found to be carrying a box containing assorted pipe fittings, a hydrometer, of the type commonly used for testing alcohol, and a water pump similar to one found in a still.

Appellant was, furthermore, related by family ties to many of the guilty conspirators-- in fact two were his brothers, Joseph Valenti and Joseph a. Valenti, one his son, Joseph J. Valenti, and one his brother-in-law, Frank Dimino. Throughout the period of the conspiracy he was in frequent contact with all the conspirators, as...

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