85 F.2d 544 (2nd Cir. 1936), 382, United States v. Lanza

Docket Nº:382.
Citation:85 F.2d 544
Party Name:UNITED STATES v. LANZA. [*]
Case Date:August 13, 1936
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 544

85 F.2d 544 (2nd Cir. 1936)

UNITED STATES

v.

LANZA. [*]

No. 382.

United States Court of Appeals, Second Circuit.

August 13, 1936

Page 545

Caesar B. F. Barra, of New York City (Ralph J. Barra, Nicholas P. Iannuzzi, and Julius I. Puente, all of New York City, of counsel), for appellant.

John Dickinson, Asst. Atty. Gen., John Harlan Amen and Albert J. Law, Sp. Assts. to the Atty. Gen., Joseph A. Barrett and Andrew Bennett, Sp. Assts., and John C. Herberg, Sp. Atty., of Washington, D.C.

Before MANTON, SWAN, and CHASE, Circuit Judges.

CHASE, Circuit Judge.

The appellant was convicted and sentenced, together with other defendants tried at the same time, and alone has appealed. The indictment, which superseded the original one, charged in the first count a conspiracy to restrain trade and commerce in fresh water fish among the several states; in the second count, a conspiracy to monopolize such trade and commerce in such fish; in the third, an attempt to monopolize such trade and commerce in such fish; and, in the fourth, that they did monopolize such trade and commerce in such fish. The appellant was convicted on all the counts, and was sentenced upon all.

He has not attempted to question the sufficiency of the evidence to prove, as the jury found, that the unlawful conspiracy and monopoly existed. The evidence as to that is, indeed, so strong that to question it would have been futile. But the appellant does argue that there was no evidence connecting him with the unlawful acts shown on the part of others and that there was reversible error in the admission of evidence and in the opening statement of the prosecutor to the jury. So it will be necessary to outline the nature of the evidence upon which reliance is placed to sustain the verdict and judgment against the appellant.

From it the jury was justified in believing that by far the greater part of the fresh water fish handled in the New York market is shipped there from states other than New York; that by 1932 the retail dealers had combined, after some trouble, what may be called their Brooklyn association with their Bronx and Upper Manhattan association into what became known as the Bronx, Upper Manhattan, and Brooklyn Fish Dealers Association, with one of the defendants, Kiselik, acting as the so-called impartial chairman of the combined associations; that Kiselik was endeavoring to have the wholesale fresh fish dealers organize and co-operate with the retail dealers to extend the control of the business; and that to bring this about he arranged a meeting of the wholesalers at the Half Moon Hotel in Coney Island; that at this meeting the appellant, who was a delegate of the United Sea Food Workers Union, was present and set with Kiselik

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at a table on the dais but did not address the meeting; that most of the wholesalers attended and were told of the organization of the retailers and urged by Kiselik and one O'Keefe to organize to remedy the market conditions in concert with the retailers; that a committee was appointed to try to work out a satisfactory plan for the division of profits on a percentage basis; that the report of this committee was received and discussed but not then adopted, and that the meeting broke up without taking any definite action; that O'Keefe continued his efforts with individual wholesalers, and in about two weeks had worked out a scheme for co-operation on a changed basis which seemed likely to be generally approved; that within four or five weeks he had formed another committee consisting of five wholesalers who agreed, and that he then submitted his plan to the committee formed at the Half Moon Hotel; that the result was the formation of a profit-pooling association; the assignment of percentages to wholesalers; the formation of a representative committee to collect information as to supply, prices, bad debts, credits, and the elimination of duplication; that in carrying out the scheme, which was really one to monopolize the business, they used threats and violence, extortion, boycotts, levies upon dealers who were coerced into paying; picketing; made charges for opening new stores; created labor disturbances; and that they fixed prices and attempted to maintain them by threats and violence.

Aside from the presence of the defendant at the meeting at the Half Moon Hotel, his connection with the scheme was shown only by evidence in substance as follows: One of the large dealers, Booth Fisheries, had trouble with the organization. It was indebted to the Guaranty Trust Company, and O'Neill of that bank undertook to look into the matter. He talked with a friend, Reardon, who knew the appellant and who told him that O'Neill had inquired about the Booth situation. Lanza said that he had nothing to do with it, but that he would take him to the man who handled the fish end of the business and took him to Kiselik. Reardon asked Lanza and Kiselik if they would go to the Guaranty Trust Company with him to meet O'Neill and they assented and went. O'Neill and Kiselik talked over the difficulties which had beset the Booth Fisheries, while Lanza either talked with Reardon a few feet away or listened to what was said. O'Neill explained that the Booth Fisheries Company was having trouble in New York, and was informed that Booth had not co-operated. During the conversation, Heinrichs, who had charge of the principal office of the Booth Fisheries Company in Chicago, and who was trying to adjust the trouble that had arisen in New York, came in. O'Neill testified in...

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