United States v. Antonelli Fireworks Co.

• Decision Date: 02 May 1946
• Docket Number: No. 192.,192.
• Citation: 155 F.2d 631
• Parties: UNITED STATES v. ANTONELLI FIREWORKS CO., Inc., et al.
• Court: U.S. Court of Appeals — Second Circuit

155 F.2d 631 (1946)

UNITED STATES v. ANTONELLI FIREWORKS CO., Inc., et al.

No. 192.

Circuit Court of Appeals, Second Circuit.

May 2, 1946.

COPYRIGHT MATERIAL OMITTED

William J. Maloney, of Rochester, N. Y., for appellant Antonelli Fireworks Co., Inc.

George J. Skivington, of Rochester, N. Y., for appellant Antonelli.

Charles P. Maloney, of Rochester, N. Y. (Ray F. Fowler, of Rochester, N. Y., on the brief for appellants Joseph DeRitis and Barbollo), for appellants John DeRitis, Joseph DeRitis, and Barbollo.

R. Norman Kirchgraber, First Asst. U. S. Atty., of Buffalo, N. Y. (George L. Grobe, U. S. Atty., of Buffalo, N. Y., and John M. Kelley, Jr., Sp. Asst. to Atty. Gen., on the brief), for appellee.

Before L. HAND, CLARK, and FRANK, Circuit Judges.

CLARK, Circuit Judge.

This appeal brings up for review a trial of charges of improper manufacture of munitions of war had upon two indictments filed in the District Court on August 25, 1943. The first indictment charged the present appellants, Antonelli Fireworks Co., Inc., Amerigo Antonelli, John and Joseph DeRitis, and Dominick Barbollo, in fifteen counts with wilfully defective manufacture of war material in violation of 50 U.S.C.A. § 103; while the second charged these same defendants and three others, Bennie Piteo, Frank Bianchi, and Angelo Costanza, in a single count with conspiracy to defraud the United States in its war effort in violation of 18 U.S.C.A. § 88.¹ Piteo and Bianchi pleaded guilty. The court consolidated the two indictments; and after a trial which lasted from May 1 to June 10, 1944, and produced a record of nearly 4,000 pages, the jury acquitted the defendants of all charges of the first indictment, but found the corporation, Antonelli, the DeRitis brothers, and Barbollo guilty as charged in the second indictment. Costanza was found not guilty. The court imposed fines upon the corporation and upon Antonelli, and sentences of imprisonment for eighteen months upon Barbollo, and for two years upon the other individuals. Their appeal seeks reversal of their convictions on the grounds of insufficiency of the evidence, errors in the conduct of the trial, and repugnancy in the verdict.

Antonelli Fireworks Co., Inc., was a family corporation, all the stock of which was owned by its president and treasurer, the defendant Amerigo Antonelli. John and Joseph DeRitis, stepsons of Antonelli, were superintendents of the factory; and Barbollo, husband of a stepdaughter of Antonelli, was a foreman. Although organized in 1925, its debts appear to have been consistently greater than its assets until November, 1941, when, through the Chemical Warfare Service of the Army, it obtained a contract with the United States covering, inter alia, the loading of 3,000,000 incendiary bombs at a unit price of 33½ cents, or a total of $1,005,000. This munitions contract was an immediate boon, for the government not only made an advance payment of 30%, but also provided the money for new buildings and equipment, salaries of employees, and retirement of a corporate indebtedness of roughly $15,000. Production of bombs started in February, 1942; and in July, 1942, the corporation obtained the other government contract here in question, for the manufacture of 1,000,000 M-14 incendiary grenades at a unit price of 17½ cents, or a total of $175,000. Since magnesium was not available at the time of the bomb contract, the corporation was permitted to make a substitute steel-jacket bomb, subject to the government's option to require magnesium on 30 days' notice.

Both contracts contained strict specifications of manufacture. The contract for bombs imposed the obligation of inspection primarily upon the contractor; and the grenade contract provided that invoices for materials produced should bear the certification of the contractor that the bill was accurate and the conditions in all respects complied with. The specification in both contracts with which we are here particularly concerned was that a charge of Therm-8, or incendiary mixture of specified weight, was to be loaded into the grenade or bomb, whether steel-jacket or magnesium, in four approximately equal increments, each increment to be successively consolidated.² Eighty per cent of the bombs were to be ordinary incendiary bombs, and twenty per cent were to be made with burster charges. On the trial, a colonel in Chemical Warfare Service, qualified as an expert on incendiary munitions, testified that the employment of separate increments was necessary to obtain a uniform center of gravity, and that the functioning of the bombs would be seriously impaired by consolidation of a lesser number of increments than called for by the specifications. He further testified that the purpose of the requirement for burster charges in 20% of the bombs was to discourage fire fighters from approaching the bombs too soon after they had fallen.

The second indictment, that on which the defendants were found guilty, charged them with conspiracy, over a period from March 1, 1942, until June 10, 1943, to defraud the United States in its prosecution of the war by defective production of bombs and grenades, by misrepresentations of the munitions to United States inspectors stationed at the plant, by employment of schemes to avoid compliance with specifications, and by presentment of false claims to the United States, as prohibited by the false-claims statute, 18 U.S.C.A. § 80. It alleged many overt acts, most of which consisted of instructions given the employees to use fewer than the required number of increments and to mismark munitions, while others were based on employment of rejected materials, clustering of defective bombs, and making of false invoices and certificates by the defendants themselves.

To support the indictment, the government relied primarily upon the testimony of employees of the defendant corporation and of government inspectors located at the plant. That there was defective manufacturing was thoroughly established; that it reached truly appalling amounts seems likewise clear. This was shown by the testimony and report of a disinterested X-ray specialist, who stated that in tests of Antonelli products, made at random and thus fairly representative of the entire output, he found that out of 777 steel-jacket bombs, only 291 contained four increments, and that out of a total of 272 magnesium bombs tested, none contained four increments and only 23 contained three increments. Similarly shocking results were reported as a result of visual testing by the Chief of the Incendiaries Branch, Chemical Warfare Service. Indeed, the defendants did not seriously dispute the fact of extensive misproduction, but rather contended that the deficiencies were entirely accidental and due to the sudden necessity of mass production, or that, if any criminal intent did exist, it was entirely on the part of subordinate employees.

It is quite clear, however, that the jury was justified in concluding otherwise. Two witnesses, one a government inspector and the other a plant employee, testified that they had seen Antonelli himself take rejected grenades out of their box and place them in the outgoing line of production; and five witnesses were equally positive as to observation of similar acts on the part of Barbollo or the DeRitis brothers. The testimony by plant workers that defendants had instructed them to use fewer than the specified number of increments (at times warning them to use the full number in the presence of government inspectors) and to use rejected bombs and grenades was so abundant that detailed review is impracticable and unnecessary. It is sufficient to say by way of summary that a foreman, together with two subordinate employees, testified that Antonelli personally instructed them either to use rejected material, or to omit the specified charges, or both; that five witnesses testified to receiving similar instructions from Joseph DeRitis, and two from John DeRitis. One witness stated that John DeRitis promised her a raise for turning out more work by using a deficient number of charges, and that in her presence he told the defendant Piteo to see that his instructions were carried out. Two employees testified that their production rate was literally doubled by use of an insufficient number of increments.

The verdict as to each defendant was therefore amply supported by the evidence. It is true, as defendants point out, that there were other employees who testified that they had been exhorted to produce in accordance with specifications; but questions of credibility are for the jury. There was express testimony by an impressive array of employees to support the conviction. And additional credence is afforded the jury's conclusion by the extent of the defective manufacturing, so great as to cast serious doubts on the asserted obliviousness of the corporate officials to what was going on, and by the further fact that they, and not the workers, who were paid by the hour, stood to gain from the fraud.

Turning, therefore, to the defendants' extensive assignment of errors as to the conduct of the trial, we dismiss at the outset their contention that the consolidation of the two indictments itself constituted reversible error. The summary of the indictments and of the testimony already given amply demonstrates the near identity of the defendants, the similarity of the offenses charged, and the necessarily overlapping nature of the evidence in support of each. The facts of the case place it well within the terms of 18 U.S.C.A. § 557, authorizing consolidation when "there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together." See United States v. Smith, 2 Cir., 112 F. 2d 83; McNeil v. United States, 66 App.D. C. 199, 85 F.2d 698; Federal Rules of Criminal Procedure, Rules 8, 13, and Advisory Committee Notes thereto. It has been repeatedly held that the...