Capriola v. United States

Decision Date12 October 1932
Docket NumberNo. 4652-4655.,4652-4655.
Citation61 F.2d 5
PartiesCAPRIOLA v. UNITED STATES, and three other cases.
CourtU.S. Court of Appeals — Seventh Circuit

North, Linscott, Gibboney & North, of Rockford, Ill. (Harry B. North and Charles H. Linscott, both of Rockford, Ill., of counsel), for appellants Capriola and Dodaro.

David D. Madden, of Rockford, Ill., for appellant Walsh.

John Elliott Byrne, of Chicago, Ill. (Frank R. Reid, of Aurora, Ill., of counsel), for appellant D'Agostin.

George E. Q. Johnson, U. S. Atty., and Victor E. La Rue, Asst. U. S. Atty., both of Chicago, Ill., and John H. Page, Asst. U. S. Atty., of Rockford, Ill.

Before EVANS and SPARKS, Circuit Judges, and WILKERSON, District Judge.

EVANS, Circuit Judge (after stating the facts as above)

The errors assigned may be somewhat grouped, although each appellant contends that his appeal necessitates a separate consideration of the record. This plan we have adopted. To avoid an opinion of unreasonable length, however, some of the assignments of error have been treated together. Moreover, only one opinion will be written in the four appeals.

The errors assigned are: (1) The insufficiency of the indictment to charge the crime of conspiracy against the respective appellants. (2) The admission in evidence over appellants' objections of (a) bills of lading, search warrants, and returns thereon, (b) attorneys' memoranda of proceedings in other cases, (c) informations and bail bonds, (d) certain exhibits, (e) testimony as to reputation of D'Agostin, (f) evidence of unrelated substantive crimes, (g) evidence of a fight at a picnic, and (h) remarks of a prosecuting attorney about Italians and other remarks upon introduction of certain exhibits. (3) Errors in the (a) refusal of cross-examination of government witnesses as to residence, (b) refusal to limit evidence to particular defendants, (c) failure to direct a verdict, allow motion in arrest of judgment (as to appellant Dodaro because jury found that he was known by name of Dodaro, whereas indictment called him Dodora), or grant a new trial, and (d) limiting of counsels' argument. (4) Errors in instructions: (a) failure to specifically limit evidence admitted against a certain defendant to that defendant, (b) failure to instruct jury not to consider picnic fight evidence which was stricken, and (c) erroneous instructions given to the jury after it retired. (5) Insufficiency of the evidence to support the verdict or the indictment. (6) Failure to establish one conspiracy. (7) Unfair trial because of number of defendants.

Sufficiency of the Indictment. The demurrers to the indictment were based on numerous grounds. None of them are well taken. The indictment covers twenty printed pages, and the demurrers cover eleven of such pages. They are too long to be here set forth.

In this court counsel argued that there were many prejudicial statements set forth in the indictment, and appellants were thereby prejudiced. The usual and ordinary attack upon an indictment is because it is indefinite and lacking in specificity. That complaint is here changed to one that specified facts not necessary to the charge, which embarrassingly involved appellants, were made. In other words, the substance of the complaint is that the Government pleaded its evidence and did not confine itself to the language of the statute covering conspiracy.

We think the criticism unjust and unfair to the indictment and without merit in the case before us, even if true. An unusually large number of men were included in the alleged conspiracy. They apparently participated in this enterprise in different ways. Some of the conspirators were the distributors of the product through employment in saloons or drinking parlors where the intoxicating liquors were sold. Some were employed in transporting the intoxicating liquor, and these were specifically named. Others were engaged in supplying the residences with stills, etc., and actually operating the stills where the liquor was manufactured. Others were retained to provide protection for those actually engaged in the manufacture, sale or distribution of the liquor. Others were engaged in purchasing the material necessary to the production of the liquor. Still others purchased the material for the equipment of the stills, rectifiers, and steam boilers, while still others were engaged in furnishing the bail for those who were arrested. All of these facts are set forth, and the names of the participants given in the forepart of the indictment. This is followed by the formal definite charge wherein all of the defendants are named, and this statement was followed by one hundred and nine overt acts, none of which are insufficient or improper. Instead of being criticized, the indictment, it seems to us, can be commended in respect to one matter at least — it avoided the necessity of defendants' demanding a bill of particulars. The indictment is not bad simply because more overt acts were alleged than were necessary.

There was no prejudice arising from the indictment's being sent to the jury room. For the court in instructing the jury, at the time he said he would send the indictment to them, stated:

"This is a criminal case. The government prefers its charges in the form of an indictment which, in this case, consists of a single count. The presentation of this indictment is no evidence of their guilt. It is not to be treated by you in any way as raising any kind of presumption or creating any kind of prejudice against the defendants. The indictment is the formal, written accusation of pleading by which the defendants are brought to trial. You must regard this indictment in that light and in no other light."

It was necessary for the jury to have before it a list of the defendants so that there would be no confusion on its part as to the names and identity of the individuals who were thus charged with violating the law. The fact that seven were found not guilty bears evidence of the wisdom of the court's policy in allowing the jury to have the indictment which furnished the names of all.

The Sufficiency of the Evidence to Sustain the Indictment. Appellants, singly and collectively, assert that the evidence fails-to establish the conspiracy as charged in the indictment although admitting that many individual violations of the National Prohibition Act are disclosed.

Briefly stated, the proof showed that in Rockford, Illinois, there is a quarter commonly known as the "Italian Section," covering 12 to 15 blocks, wherein, during the period in question, 95 illicit stills (primary and secondary distilleries) were seized by the government officers. There was a marked similarity in the character and relative location of these stills. They were placed in houses of the residential type, with garages attached. In many instances similar vats were found in the basements and under the floors of these garages. Corn sugar and yeast were the principal ingredients for the mash manufactured. There likewise was similarity in the one and five-gallon tin containers which were found when searches and seizures were made. Appellant Dodaro, doing business under the name of Piemonte Bakery (a small bakery with no outside help), purchased from Standard Brands, Inc., 303,151 pounds of yeast, and no plausible explanation was offered for the acquisition of such a large quantity. Appellant Capriola, who was in the restaurant business, purchased from the Olive Can Company, 226,419 one-gallon and 10,881 five-gallon tin cans, the exact type of which prohibition agents found, time and again, with the liquor therein, when searches and seizures were made. Appellant Capriola, in addition to buying the tin cans above mentioned, purchased 59 carloads of corn sugar of the kind used in making corn sugar mash. Appellant Dodaro, in addition to purchasing more than 300,000 pounds of yeast, purchased 116 carloads of corn sugar.

There was also testimony to the effect that several of the defendants acted in the capacity of salesmen; that there was a price fixed and agreed upon, namely $6 a gallon for quantities over 100 gallons and $6.25 a gallon for lesser amounts. Supplementing the evidence respecting uniformity of prices as indicative of a common enterprise, there was evidence to the effect that the owners of the individual distilleries had no quarrels among themselves. The absence of competition among producers pointed to an accepted distribution agency, the existence of which was established by other evidence.

There was also evidence of conversations had between agents of the government, whose identity was concealed, and various defendants, including at least three of the appellants, which, if true, leaves no room for speculation as to their guilty participation in the enterprise. This evidence disclosed the existence and effective working of a criminal conspiracy, which is but another name for an enterprise which is knowingly entered into and carried out, the object of which is to do some act which constitutes an offense against the laws of the United States.

The only legitimate inquiry presented by the record is as to the scope of the conspiracy and the names of the parties who participated in it. That the conspiracy charged in the indictment had for its object the commission of many crimes is quite apparent. Likewise, in the commission of some of the offenses there were no doubt other, and what might be called smaller, conspiracies between a smaller group of the defendants. To illustrate, the larger conspiracy contemplated the making, the manufacturing, and the selling of illegal liquor. This enterprise necessitated the purchase and acquisition of material — corn sugar, yeast, etc. — out of which the liquor was distilled. It also contemplated the transportation of the liquor, after it was manufactured, to the purchasers who bought large quantities, which required delivery. This phase of the enterprise...

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