365 F.2d 206 (2nd Cir. 1966), 216, United States v. Bozza

Docket Nº:216, 29797.
Citation:365 F.2d 206
Party Name:UNITED STATES of America, Appellee, v. Daniel BOZZA, Charles Mulhearn, Ronald Jones, Michael Pizzo, Salvatore Guarnieri, Anthony DeLutro, a/k/a Tony West, Appellants.
Case Date:August 01, 1966
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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365 F.2d 206 (2nd Cir. 1966)

UNITED STATES of America, Appellee,

v.

Daniel BOZZA, Charles Mulhearn, Ronald Jones, Michael Pizzo, Salvatore Guarnieri, Anthony DeLutro, a/k/a Tony West, Appellants.

No. 216, 29797.

United States Court of Appeals, Second Circuit.

August 1, 1966

Argued Feb. 25, 1966.

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John R. Wing, Anthony F. Marra, New York City, for appellants Bozza, Mulhearn and Jones.

Leonard M. Marks, New York City (Paul, Weiss, Rifkind, Wharton & Garrison, Edward N. Costikyan, New York City, of counsel), for appellant Guarnieri.

John D. Lockton, Jr., William D. Conwell, New York City, for appellant Pizzo.

H. Elliot Wales, New York City, for appellant DeLutro.

Jerome C. Ditore, Brooklyn, N.Y. (Joseph P. Hoey, U.S. Atty., Eastern Dist. of New York, John Goldstein, Atty., Dept. of Justice, of counsel), for appellee.

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Before WATERMAN, MOORE and FRIENDLY, Circuit Judges.

FRIENDLY, Circuit Judge:

Six defendants, Bozza, Jones, Mulhearn, Pizzo, Guarnieri and DeLutro, appeal on numerous grounds from a judgment of the District Court for the Eastern District of New York convicting them of various crimes relating to the burglary of United States post offices in New Jersey and the transportation and receipt of stamps stolen therefrom. See 18 U.S.C. §§ 641, 2314. The trial, before Judge Mishler and a jury, lasted some thirty days; ten counts were ultimately submitted to the jury, a much simplified version of these appearing in the appendix to this opinion. After deliberating three and a half hours, the jury found all defendants guilty on all counts with which they were respectively charged; the court imposed sentences ranging from two to fourteen years, as indicated in the appendix. 1

I. The Government's Case.

The Government's case save as to count 28 was presented primarily through an accomplice, Edward Kuhle, who testified at length as to the crimes charged: In January 1964 Bozza and Kuhle met in New Jersey and decided to burglarize a post office, Bozza's expressed motive being his need to pay off debts to Jones, Mulhearn and Pizzo. Requiring a fence, Bozza and Kuhle got in touch with Frank Polak, who lived in Astoria in the Eastern District of New York; 2 after a meeting there, to which they had driven in a Buick car owned by Jones but registered to Mulhearn, they agreed to meet Polak a few days later, by which time the stolen stamps were expected to be available. Using the Buick and tools which Jones, Mulhearn and Pizzo had loaned them, Bozza and Kihle burglarized the Morganville Post Office, with disappointingly small results. They repeated the performance at Middletown a few nights later and had better luck. Loading the stolen stamps, worth some $5,000, in the trunk of the Buick, they drove to Frank Polak's home in Astoria, arranged a meeting in a drugstore in Manhattan and delivered the stamps; he took them to his brother Bedrich 3 and got the money which, after deducting a $500 fee, he turned over to Bozza and Kuhle. They returned to New Jersey where Bozza used some of his share to pay debts to Jones, Mulhearn and Pizzo.

Impecunious because of these payments, Bozza proposed another burglary. He, Kuhle and one Robert Williams 4 burglarized the Woodbridge Post Office, again using the same tools; they met with still greater success, making off with some $10,000 in stamps. Having telegraphed the good news to Polak and stopped at the Chris-Ann Motel in New Jersey to count the proceeds, they drove to New York the next day, met Polak in Astoria after sundry misadventures, and agreed on a further meeting for delivery and payment. Bozza and Williams spent the night at the same motel; Bozza was inadvertently locked out of the room and broke down the door. The following day, the trio rejoined Polak in Manhattan where delivery and payment were effected.

Between mid-February and mid-March, Jones and Mulhearn told Kuhle that Bozza still owed them money, and inquired how the burglary business was progressing. Bozza, admitting that he owed

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money to them as well as to Pizzo, expressed readiness for another try. He, Williams and Kuhle, utilizing the Jones-Mulhearn-Pisso tools, 'hit' the Keyport Post Office with only fair results in stamps but with a yield of 5000 blank money orders for $100 each. Again came a pause at a motel-- this time the Skyway in Jersey City-- to count the proceeds, a drive by Kuhle and Williams to Astoria, a meeting at a Manhattan drugstore, delivery, payment and division of the proceeds.

Although the purloined stamps had been moving smoothly into the stream of illicit commerce, the burglars had not yet found means for realizing on the stolen money orders despite their acquisition of such useful properties as validating stamps. 5 Five days after the Keyport burglary, Bozza phoned Kuhle that he had located buyers for the money orders in Brooklyn. Kuhle and Williams came to a Manhattan parking lot; Bozza took the money orders from Kuhle's car into his own, saying he was going to meet the purchasers, defendants Guarnieri and one Tony Santangelo. 6 The quintet met that evening in a Brooklyn bar, where Bozza announced that Guarnieri and Santangelo were handling the stolen money orders. During the rest of March, Bozza and Kuhle met frequently with Guarnieri in Brooklyn to discuss the subject. In the early part of April Guarnieri and Bozza told Kuhle they could pass $5,000 a day at the World's Fair if a validating machine could be procured. On April 11, Bozza, Williams and Kuhle stole one from the Morganville Post Office and repaired to Williams' home and forged several days' supply. They then made two trips to Brooklyn to give Guarnieri and Santangelo the merchandise.

The first rift in the lute came on April 23 when Kuhle was arrested on an unrelated charge by New Jersey police, who searched his house and found the tools used in the burglaries. Bozza's car, standing near Kuhle's house, was then searched pursuant to a warrant; the search produced the validating machine recently stolen from Morganville, money orders taken from Keyport, a stolen hand stamp and a stamp pad. Kuhle was released in May and apparently acted as an agent for the Government thereafter.

In the middle of May Kuhle went with Mulhearn to meet Guarnieri and Bozza in a Brooklyn bar called The Illusion; Guarnieri announced that he was keeping Bozza in his house to avoid apprehension by the New Jersey police and that Bozza, as usual, needed money since he was substantially in debt to Guarnieri and other Brooklynites; Guarnieri disclosed that he had some burglary tools in his car and went with Mulhearn to put them in Kuhle's. While Kuhle in the bar was watching the transfer of the tools, Bozza said he needed 'work' and had to get away since 'the Feds are in Brooklyn every day looking for me.' Kuhle and Mulhearn drove back to New Jersey and left the tools at Nicholas Guzzo's home. 7 A few days later, by now early June, Guzzo delivered the tools to Jones and Kuhle who, together with Bozza, put them to immediate use in burglarizing the Paramus Post Office, where they obtained a good haul of stamps, worth. $19,000. After going to Guzzo's house to count the loot and hide the tools, Kuhle drove Bozza on to Brooklyn. A call from him to Kuhle that Guarnieri was ready to pay $9,500 led Jones, Mulhearn and Guzzo to a Brooklyn rendezvous with Guarnieri; later Jones called Kuhle for

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a profit-sharing meeting with Mulhearn and Guzzo at a New Jersey bar; Bozza had received his share in Brooklyn.

There was to be one last fling. On June 23 Kuhle, Mulhearn and Jones, again using Guarnieri's tools, burglarized the Hillsdale Post Office. This last burglary was also the most fruitful in yield of stamps, worth $36,000, and, less fortunately, a .38 caliber gun. The three thieves returned to Guzzo's home where they counted the stamps; they left everything with Guzzo, telling him to get rid of the gun. But the loot proved hard to move, and the clouds were gathering. Frank Polak, Kuhle's prior outlet, had been arrested and nobody wanted to go to Brooklyn. Postal inspectors, armed with a warrant, searched Pizzo's house. This led to a council of war among Jones, Mulhearn, Pizzo and Kuhle. Jones' interest was excited by a statement in the affidavit for the search warrant that information had come from a previously reliable informant; he said a friend would find out who this was and the four would take care of him, with the four to shoot simultaneously. Kuhle, of course, was the informant. Finally, Mulhearn, Pizzo and Kuhle rented a car in Kuhle's name with the objective of going to see DeLutro, also known as Tony West, who first appears at this late stage. Finding him at a Manhattan coffee shop, they told him of the $36,000 of Hillsdale stamps. DeLutro indicated interest and promised to call them at a New Jersey bar that evening from Brooklyn. He did, asking for Pizzo; as arranged, Pizzo wrote down DeLutro's number, went to an outside telephone, and called him in Brooklyn. When DeLutro offered $10,000, Kuhle took the phone and bargained until DeLutro raised the offer to $12,000 which was accepted. DeLutro promised to meet the trio in Manhattan at 2:00 A.M.; using Kuhle's rented car they delivered the stamps to him. Later that same morning, they returned to New York with Jones; DeLutro complained about bringing in another guy, and Jones and Kuhle waited in a nearby bar while Mulhearn and Pizzo collected $8,000. Still later DeLutro paid a further $2,000 at a place not identified.

Kuhle's exceedingly circumstantial story was substantiated in a number of ways in addition to those already noted, see fns. 2, 3 and 5, although none bore directly on...

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