Ferina v. United States

• Decision Date: 14 May 1962
• Docket Number: 16784,16909,16786,No. 16783,16908,16911.,16783
• Citation: 302 F.2d 95
• Parties: Felix FERINA, Appellant, v. UNITED STATES of America, Appellee. Anthony J. BIASE, Appellant, v. UNITED STATES of America, Appellee. Anthony CARDARELLA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

302 F.2d 95 (1962)

Felix FERINA, Appellant, v. UNITED STATES of America, Appellee.

Anthony J. BIASE, Appellant, v. UNITED STATES of America, Appellee.

Anthony CARDARELLA, Appellant, v. UNITED STATES of America, Appellee.

Nos. 16783, 16908, 16784, 16909, 16786, 16911.

United States Court of Appeals Eighth Circuit.

April 17, 1962.

Rehearing Denied May 14, 1962.

Kenneth C. West, Kansas City, Mo., for appellant, Felix Ferina, and Walter A. Raymond, Kansas City, Mo., on the brief with him in case No. 16783.

Moss H. Silverforb, Kansas City, Mo., for appellant Anthony Biase in case No. 16784.

Kenneth C. West and James Patrick Quinn, Kansas City, Mo., for appellant Anthony Cardarella and James J. Waters, Kansas City, Mo., with Mr. Quinn on the brief in case No. 16786.

Kenneth C. West, Kansas City, Mo., for appellants Felix Ferina and Anthony John Cardarella in cases Nos. 16908 and 16911 and Walter A. Raymond, Kansas City, Mo., on the brief for appellant Felix Ferina in case No. 16908.

No brief was filed for Mr. Anthony John Cardarella in case No. 16911.

Moss H. Silverforb, Kansas City, Mo., for Anthony J. Biase in case No. 16909.

Allen J. Krouse, Dept. of Justice, Washington, D. C., for appellee in these cases and Herbert J. Miller, Jr., Asst. Atty. Gen., Dept. of Justice, Washington, D. C., and James J. Featherstone, Dept. of Justice, Washington, D. C., on the briefs in the above cases.

Before VOGEL and VAN OOSTERHOUT, Circuit Judges, and GRAVEN, Senior District Judge.

GRAVEN, Senior District Judge.

The appellants were tried in one joint jury trial. On May 22d, 1961, they filed notices of appeal from the convictions and sentences resulting therefrom. On October 26th, 1961, while those appeals were pending, they each filed in the trial court a motion for a new trial on the ground of newly discovered evidence under Rule 33 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. On November 15th, 1961, the trial court entered an order denying the motions. On November 16th, 1961, the defendants filed notices of appeal from that order. The original appeals were argued in this Court on December 5th, 1961. Decision in those appeals was withheld pending the hearing on the appeals from the order denying their motions for a new trial. This opinion covers both the original appeals and the appeals from the order denying the motions for a new trial.

The issues in the original appeals will first be considered. Some of the events which preceded the return of the indictment under which they were tried will first be noted. Early in September, 1959, Kenneth Bruce Sheetz, a resident of Kansas City, Missouri, was arrested by federal agents for the illegal sale of narcotics in that city. At the trial herein he testified that he had made such sales and previous sales. He further testified that he had purchased the narcotics sold by him from the defendant, Anthony J. Biase, a resident of Omaha, Nebraska. Following his arrest, Sheetz agreed to cooperate with the federal authorities in bringing to justice others engaged in the illegal distribution of narcotics. Bernard A. Theisen, Jr., a federal narcotics agent, was assigned to accompany Sheetz in uncovering those engaged in the narcotics traffic. In connection with that work, Theisen assumed the name of Joe Benedetto. Sheetz and Theisen went numerous places, including Omaha, Nebraska. Sheetz received a per diem allowance for his expenses from the federal authorities but received no compensation from them for his services. At Omaha Sheetz made contacts with the defendant Biase, and as a result of those contacts Biase made four sales of narcotics to Sheetz and Theisen. The purchases made by Sheetz and Theisen from Biase were the only purchases of narcotics made by them during their travels. The defendant, Anthony J. Biase, was generally known and referred to as Tony Biase.

During a session of a federal grand jury for the District of Nebraska in March, 1960, Sheetz appeared before it and testified as to the illegal sale of narcotics by Biase. On March 22d, 1960, that grand jury returned an indictment against Biase based on the sales of narcotics made by him to Sheetz and Theisen. Biase was released on bail awaiting his trial under that indictment. On the forenoon of June 20th, 1960, two men identified by Sheetz as the defendants Ferina and Cardarella lay in wait inside the door of Sheetz' residence in Kansas City, Missouri. Upon Sheetz' return home and following his opening the door he was shot several times. Sheetz testified that during the shooting one of the two men said to him, "Here's something from Tony."

On July 14th, 1960, a grand jury for the Western District of Missouri returned the indictment in the present case. In Count I of the indictment the defendants Cardarella and Ferina were charged with injuring Sheetz because of his having testified as a witness before the Nebraska federal grand jury. In Count II the defendants Cardarella and Ferina were charged with endeavoring to intimidate Sheetz from being a witness in the trial of Biase to be had in Nebraska. In Count III Carlton A. Young was charged with endeavoring to intimidate and influence Sheetz from being a witness in the same trial. In Count IV Biase, Cardarella, Ferina and Young were charged with conspiring to injure Sheetz for his having testified as a witness before the Nebraska federal grand jury and to intimidate him from being a witness at the impending trial of Biase.

Counts I, II, and III were based on Section 1503, Title 18 United States Code. That Section provides, in part, as follows:

"Whoever corruptly, or by threats or force, or by any threatening * * * communication, endeavors to influence, intimidate, or impede any witness, in any court of the United States * * * or injures any party or witness in his person * * * on account of his * * * having attended such court * * * or on account of his testifying or having testified to any matter pending therein * * * or corruptly or by threats or force, or by any threatening * * * communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both."

Count IV is based upon the conspiracy statute, Section 371, Title 18 United States Code.

Following the indictments just referred to, Biase, in September, 1960, was tried and found guilty in Nebraska under the Nebraska indictment. Sheetz was subpoenaed as a witness at that trial but did not testify. Following his conviction Biase was sentenced to be imprisoned for fifteen years. He is presently serving that sentence.

At the trial of the present case, at the end of the Government's case in chief, each of the defendants made a motion for judgment of acquittal. The motion of the defendant, Carlton A. Young, was sustained. The motions of the other defendants were overruled. None of the defendants testified. The defendant Cardarella presented several witnesses. At the end of all the evidence each of the remaining defendants made a motion for judgment of acquittal. Those motions were overruled. The jury found the defendants Ferina and Cardarella guilty on Counts I, II, and IV and the defendant Biase guilty on Count IV. The trial court imposed five-year prison sentences upon the defendants Ferina and Cardarella under Counts I and II, the terms to run concurrently. The trial court imposed five-year prison sentences upon the defendants Ferina, Cardarella and Biase on Count IV. The prison sentences imposed upon the defendants Ferina and Cardarella on Count IV run consecutively to the sentences imposed upon them on Counts I and II.

The appellants, hereafter referred to as the defendants, make a number of contentions. Each of them contends that the evidence was insufficient to sustain their convictions. In that connection the defendants Ferina and Cardarella urge that the testimony of Sheetz identifying them as his assailants was lacking in credibility. The defendant Biase urges that evidence connecting him with Sheetz' assailants is lacking. All of the defendants contend that the chief trial attorney for the Government in his argument made improper statements in connection with the matter of the credibility of Sheetz as a witness. Each of the defendants contends that the trial court erred in failing to strike the testimony of certain witnesses. The defendant Biase contends that the trial court erred in not sustaining his objection to the testimony of Sheetz as to the statement, "Here's something from Tony."

Sheetz prior to 1956 had been convicted of burglaries in Virginia and had served prison terms under those convictions. In 1956, following the completion of those terms, he came to Kansas City, Missouri. In 1960 he and his wife were residing in a house in the residential portion of Kansas City. His wife operated a beauty shop and was away from home during the day. His means of livelihood in Kansas City was the subject of extensive inquiry at the trial. He testified that he worked for a concern that put in air conditioners, furnaces and plumbing. The defendants claimed that he was engaged in illegal activities. The only direct proof of illegal activities on his part during the period he resided in Kansas City was the proof relating to his sale of narcotics. It is manifest that Sheetz turned informer in the hope that by so doing he would be treated with leniency on the narcotics charge against him. No promises of leniency were made to him. Sheetz subsequently plead guilty to the narcotics charge but at the time of the trial in the present case had not been sentenced.

The events connected with the shooting as detailed by Sheetz will be next noted. On the forenoon of June 20th, 1960, at around 10:30 A.M., he went to his residence in Kansas City. His wife was at her beauty shop. It was a bright sunny day. The shades in the house were drawn. Upon arriving at his...