Calvaresi v. United States
| Decision Date | 16 November 1954 |
| Docket Number | No. 4833-4848.,4833-4848. |
| Citation | 216 F.2d 891 |
| Parties | William CALVARESI, Appellant, v. UNITED STATES of America, Appellee (three cases). Jerry BENALLO, Jr., Appellant, v. UNITED STATES of America, Appellee (three cases). Eugene SMALDONE, Appellant, v. UNITED STATES of America, Appellee (four cases). Clyde SMALDONE, Appellant, v. UNITED STATES of America, Appellee (four cases). Michael J. BENALLO, Appellant, v. UNITED STATES of America, Appellee (two cases). |
| Court | U.S. Court of Appeals — Tenth Circuit |
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A. F. Zarlengo, W. H. Erickson and Francis S. Mancini, Denver, Colo. (A. X. Erickson, Albert E. Sherlock, Milton Berger, F. E. Dickerson, T. J. Morrissey, W. F. Dwyer and William L. Rice, Denver, Colo., on the brief), for appellants.
Donald E. Kelley, U. S. Atty., and James W. Heyer, Asst. U. S. Atty., Denver, Colo. (Robert Swanson, Asst. U. S. Atty., Denver, Colo., on the brief), for appellee.
Before HUXMAN, MURRAH and PICKETT, United States Circuit Judges.
These appeals center around a series of indictments returned against appellants in the United States District Court for the District of Colorado. Indictments Numbers 13,800 and 13,833 were conspiracy indictments, in which all of the appellants together with others were joined. Numbers 13,777, 13,778, 13,794 and 13,795 were indictments against individual defendants, charging them with the commission of substantive offenses growing out of the conspiracy indictments. All the indictments except Number 13,833 were consolidated for trial. No trial other than as to Eugene Smaldone and Clyde George Smaldone has been had on that indictment. For the purpose of simplifying the record and saving unnecessary expense of duplicate records in each appeal, a consolidated record and brief were filed by the appellants. All appellants join in presenting the issues common to all of them and in urging additional assignments arising in each individual case under the substantive indictments. All the parties to this appeal are to be commended for this because such a procedure has not only resulted in eliminating a great deal of unnecessary court costs and printing fees but has greatly lightened our work in considering the issues presented.
On September 21, 1953, indictment Number 13,777 containing four counts was returned against William Calvaresi. Counts one and two charged him with corruptly endeavoring to influence and impede petit jurors in the United States District Court for Colorado and by such means endeavoring to impede the administration of justice in a trial set for September 21, 1953, against Eugene Smaldone, in violation of 18 U.S.C.A. § 1503. Counts three and four predicated on the same acts charged in counts one and two charged him with bribing and offering to bribe such jurors, in violation of 18 U.S. C.A. § 206.
On the same day, indictment Number 13,778 containing two counts was returned against Jerry Benallo, Jr. Count one charged him with unlawfully endeavoring to impede the administration of justice in the same trial by seeking to intimidate jurors by threats and force, in violation of 18 U.S.C.A. § 1503. Count two predicated on the same transaction set out in count one charged the offense of bribery and attempted bribery, in violation of 18 U.S.C.A. § 206.
On September 25, 1953, indictment Number 13,794 was returned against Eugene Smaldone. The first eight counts charged that on the dates specified therein the defendant by force and threats endeavored to influence petit jurors in the case pending against Eugene Smaldone and thus sought to obstruct the administration of justice, in violation of 18 U.S. C.A. § 1503. Counts nine to sixteen, inclusive, based upon the same transactions set out in the first eight counts charged bribery and attempted bribery of jurors, in violation of 18 U.S.C.A. § 206.
On September 25, 1953, indictment Number 13,795 was returned against Clyde George Smaldone. The first three counts charged that on dates specified therein the defendant by force and threats endeavored to influence petit jurors in the case against Eugene Smaldone and thus sought to obstruct the administration of justice. Counts four, five and six based upon the same transactions set out in the first three counts charged bribery and attempted bribery of jurors, in violation of 18 U.S.C.A. § 206.
On September 28, 1953, indictment Number 13,800 in two counts was returned against Eugene Smaldone, Clyde George Smaldone, William Calvaresi, Jerry Benallo, Jr., Fiore Smaldone, Louis F. Smaldone and Michael J. Benallo. Count one charged them with a conspiracy under 18 U.S.C.A. § 371 to commit an offense against the United States, in that they would corruptly and by threats and force and by threatening communications endeavor to influence jurors summoned on a panel to the United States District Court in a case pending against Eugene Smaldone. This count set out twenty overt acts. Count two charged a conspiracy under 18 U.S.C.A. § 371, to bribe and offer bribes to such jurors.
On October 16, 1953, indictment Number 13,833 in two counts was returned against the same defendants and one additional defendant, Joseph F. Cefalu. The two counts of this indictment were identical in substance with the corresponding two counts of indictment Number 13,800. The indictment set out the same twenty overt acts set out in Number 13,800, but contained two additional overt acts.
Before trial, Eugene Smaldone and Clyde George Smaldone entered pleas of guilty to counts one and two of indictment Number 13,833. The remaining defendants pleaded not guilty thereto and all defendants pleaded not guilty to all other indictments, including conspiracy indictment Number 13,800. Louis F. Smaldone and Fiore Smaldone were granted a severance and have not been brought to trial.
When the consolidated indictments came on for trial, Eugene Smaldone and Clyde George Smaldone filed pleas of former jeopardy in causes Numbers 13,794, 13,795 and 13,800, predicated on the ground that these indictments charged the same offense to which they had pleaded guilty under indictment Number 13,833. The trial court reserved its ruling on the motion until after the verdict by the jury and thereafter overruled the motion. The jury found all defendants guilty on all counts of all indictments on which they were tried in the consolidated case.
Sentences.
In Number 13,777 the court sentenced William Calvaresi to five years on counts one and two and to fifteen years on counts three and four. Two years of the sentence on counts one and two and ten and one-half years of the sentence on counts three and four were suspended. A fine of $5,000 was also imposed. The sentences on all four counts were made to run consecutively. In Number 13,800 Calvaresi was sentenced to a term of five years on each of counts one and two. The judgment is silent as to whether these sentences run consecutively or concurrently. Service of sentence was suspended. Calvaresi thus is required to serve a total sentence of fifteen years and pay a fine of $5,000.
In Number 13,794 Eugene Smaldone was sentenced to five years on each of the first eight counts and to fifteen years on each of counts nine to sixteen, inclusive, and to pay a fine of $24,000. Two years of the sentence on each of the first eight counts were suspended; twelve years of the sentence on counts nine to fourteen, inclusive, were suspended and eleven years of the sentence on each of counts fifteen and sixteen were suspended. In Number 13,833 he received consecutive sentences of five years each on counts one and two, these sentences to run consecutively to the sentences imposed in Number 13,794. In Number 13,800 he received consecutive sentences of five years on each of counts one and two, these sentences to run concurrently to those imposed in Numbers 13,794 and 13,833. Service of this sentence was suspended. The total sentence he was required to serve was sixty years.
In Number 13,795 Clyde Smaldone was sentenced to five years, on each of counts one, two and five and to fifteen years on each of counts three, four and six, and to pay a fine of $24,000. One year of the sentence on counts one, two and five, two years of the sentence on each of counts four and six, and three years of the sentence on count three were suspended. In Number 13,833 he received consecutive sentences of five years on each of counts one and two. These sentences were made to run consecutively to the sentences imposed in Number 13,795. In Number 13,800 he received consecutive sentences of five years on each of counts one and two. Service of Sentence was suspended. His total sentence was sixty years.
In Number 13,778 Jerry Benallo, Jr., was sentenced to five years on count one and to fifteen years on count two, and to pay a fine of $5,000. Two years of the sentence on count one and three years of the sentence on count two were suspended. In Number 13,800 he received consecutive sentences of five years on each of counts one and two. Service of these sentences was suspended. He was thus required to serve a total of fifteen years.
In Number 13,800 Michael Benallo was sentenced to consecutive sentences of five years on each of counts one and two, making a total term of ten years to be served by him, and to pay a fine of $5,000.
Twenty-one assignments of error are urged for reversal. Those that relate to all the appellants will be treated generally without referring to individual appellants. A number of assignments relate to matters that fall within the field of exercise of discretion by the trial court. In order to keep the opinion within reasonable limits, these assignments will be considered together and we will not set out in detail the evidence in the record which leads us to the conclusions with respect to the same, as hereinafter set out. We think it is sufficient to say that we have given careful...
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