553 F.2d 300 (2nd Cir. 1977), 885, United States v. Cavallaro

Docket Nº:885, 1086, Dockets 76-1437, 76-1481.
Citation:553 F.2d 300
Party Name:UNITED STATES of America, Appellee, v. Anthony L. CAVALLARO and Gerald J. Brown, Appellants.
Case Date:April 19, 1977
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 300

553 F.2d 300 (2nd Cir. 1977)

UNITED STATES of America, Appellee,

v.

Anthony L. CAVALLARO and Gerald J. Brown, Appellants.

Nos. 885, 1086, Dockets 76-1437, 76-1481.

United States Court of Appeals, Second Circuit

April 19, 1977

Argued March 16, 1977.

Page 301

Joseph A. Pavone, Asst. U. S. Atty., Syracuse, N. Y. (Paul V. French, U. S. Atty., N. D. N. Y., Albany, N. Y., on the brief), for appellee.

Arnold Wallach, New York City (Joel A. Scelsi, Endicott, N. Y., on the brief), for appellant Cavallaro.

Stuart E. Finer, Utica, N. Y., for appellant Brown.

Before LUMBARD and TIMBERS, Circuit Judges, and DAVIS, Judge, Court of Claims. [*]

LUMBARD, Circuit Judge:

Anthony L. Cavallaro and Gerald J. Brown appeal from convictions entered in the Northern District on September 16, 1976, after a three-day jury trial before Judge MacMahon. Appellants were tried and found guilty on one count of kidnapping in violation of 18 U.S.C. §§ 1201(a) and 2. Cavallaro and Brown were each sentenced to 25 years imprisonment. Appellants claim (1) that proof of an interstate kidnapping was not established beyond a reasonable doubt; (2) that 18 U.S.C. § 1201(a) is unconstitutionally vague; (3) that appellants' right of confrontation was violated when the court ruled it would not allow the government's chief witness to be questioned regarding her current address; (4) that the court erred in admitting evidence of a subsequent crime; and (5) that the court exhibited a bias against appellants during the trial, which deprived them of a fair trial.

The government's chief witness was Mary Shepardson. She testified that she lived with her infant child in a trailer in Endicott. Shepardson had only recently moved into a trailer home from an apartment she shared with Richard Sampson. She testified that before living with Sampson for approximately one month, she had been living with another individual, Dave Baer. On December 10, 1975, Shepardson went to the apartment of Debbie Buchanan in order to have Buchanan babysit her child. Buchanan was living with Richard Finch in a small apartment house at 5 Camden Street in the Endwell area. Sampson occupied an apartment above Buchanan and Finch.

After Shepardson dropped off her child with Buchanan, she hitchhiked to the welfare office to obtain money to buy fuel for her trailer. She was picked up by Cavallaro, whom Shepardson had known for about one year. Cavallaro drove her to the welfare office and she later returned to Buchanan's apartment for a time and then went out on further errands. Upon her return, Shepardson was met at the door by

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Buchanan who expressed concern for her safety. Buchanan told Shepardson that she should stay inside. Shortly thereafter, Brown, whom Shepardson had not met before, came to Buchanan's apartment. He told Shepardson that Dave Baer was outside and wanted to speak to her. Shepardson and Brown went outside to a car where Brown told Shepardson, "Get in the car. We are going for a ride." Dave Baer was sitting in the back seat, his face was swollen and "he looked scared"; Cavallaro was sitting in the driver's seat. At the time Shepardson did not know what was going on but she felt that when Brown told her to come outside she "had no choice."

Shepardson testified that after she entered the car, Cavallaro drove off down the highway. She sat in the front passenger seat while Brown sat behind her in the back seat and held her hands behind the seat "most of the time." Brown told her that she had better tell the truth about the "rip-off" and that he had been hired to kill her. Cavallaro told her that he was tired of being ripped off and lied to. Apparently, Cavallaro had been "ripped off" in a marijuana transaction and believed that two individuals, Jerry Brooks and David Lamont, were responsible. Cavallaro also believed that Shepardson might be involved, or at least that she could provide some information about Brooks. Despite continued threats, however, Shepardson insisted that she knew nothing. Cavallaro then stopped the car, and turned and pointed a gun at her. Shepardson exclaimed, "Oh my God. I don't know anything." At this point Brown told Cavallaro to "cool it" and that he would take care of the job he had been hired to do.

At some point during the ride Shepardson looked out the window and saw a sign that read "Welcome to Pennsylvania." Brown continued to threaten her, telling her that she had only a little time to talk and if she wanted to see her son again, she should tell him where they could find the people involved in the rip-off. Cavallaro stopped the car a second time and...

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