90 F.2d 630 (2nd Cir. 1937), 342, United States v. Nardone

Docket Nº:342.
Citation:90 F.2d 630
Party Name:UNITED STATES v. NARDONE et al.
Case Date:June 14, 1937
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 630

90 F.2d 630 (2nd Cir. 1937)

UNITED STATES

v.

NARDONE et al.

No. 342.

United States Court of Appeals, Second Circuit.

June 14, 1937

Thomas O'Rourke Gallagher, of Brooklyn, for defendant-appellant Nardone.

Joseph P. Nolan, of New York City, for defendants-appellants Callahan and Brown.

Louis Halle, of New York City, for defendant-appellant Gottfried.

Lamar Hardy, U.S. Atty., of New York City (Lester C. Dunigan, Asst. U.S. Atty., and Maxwell S. McKnight, Sp. Asst. U.S. Atty., both of New York City, of counsel) for the United States.

Before MANTON, L. HAND, and CHASE, Circuit Judges.

CHASE, Circuit Judge.

The appellants were indicted in the Southern District of New York, tried and convicted on all counts, and sentenced. The indictment was in three counts. The first count charged the violation of 19 U.S.C.A. § 1593(a), as principals under 18 U.S.C.A. § 550, by smuggling a large quantity of alcohol into the Port of New York; the second count charged the violation of 19 U.S.C.A. § 1593(a), by receiving and concealing the smuggled alcohol in the Southern District; and the third count charged a conspiracy to violate the abovementioned statutes contrary to 18 U.S.C.A. § 88.

The evidence, much of it circumstantial, was sufficient to justify the jury in finding that, in accordance with a preconceived plan agreed to by the defendants either at the beginning or as progress was made, they and others who were not indicted, but who will all be referred to as the conspirators, caused 2400 cases of alcohol to be shipped about the 28th day of December 1935 from St. Pierre, Miquelon, on the British oil screw Isabelle H., to be smuggled into this country without payment of duty. That boat anchored for about two weeks off Yarmouth, N.S., waiting for another boat called the Pronto. For some time before that the Pronto had been undergoing repairs at New London, Conn., at the expense of some of the defendants, who sent the funds to pay for them from New York. About the 26th of October, 1935, the Pronto sailed from New London for Yarmouth, N.S., where her repairs were completed, also at the expense of some of the defendants and partially with parts ordered by them in New York, and sent to Yarmouth. About January 12, 1936, the Isabelle H. picked up the Pronto at Seal Island off Yarmouth and towed her empty to a point off the coast of South Carolina, where 800 cases of the alcohol were transferred from the Isabelle H. to the Pronto, which was seized and her crew arrested while trying to run past the Coast Guard. Learning of this, the Isabelle H. put into St. George, Bermuda, where

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she remained for some time under the observation of the United States Coast Guard. While there, those in charge of her communicated with the conspirators in New York and were sent some funds for expenses. While the Isabelle H. was at St. George, the conspirators, Nardone and one Leveque, tried to obtain a boat for use in bringing the 1600 cases of alcohol remaining on the Isabelle H. to New York. They met with others frequently at the Hotel Astor and at the Belford Restaurant in New York, where many telephone calls were made and received. Some of these calls enabled defendant Gottfried to talk with Leveque and defendant Callahan and with one Conrad Mathiasen of the Mathiasen Towing Company.

On March 15, 1936, the S.S. Southern Sword, owned by the Alco Steamship Company, of which defendant Callahan was president, was at Newport News, Va. She had been in command of Capt. Pendleton, but he had been relieved by Callahan of his command and replaced by defendant Brown when on March 16, 1936, the boat sailed with a cargo of coal for Bridgeport, Conn. That night in clear weather the Southern Sword met the Isabelle H. at sea off Winter Quarter Lightship and took aboard the 1600 cases of alcohol. Capt. Brown testified that he supposed the cases held cans of shellac, but there was evidence that he had before stated to a member of the crew that he was to receive alcohol and that he for a moment thought he was transshipping shellac in fair weather at sea from the Isabelle H., a...

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