U.S. v. Alessi

Decision Date06 November 1980
Docket NumberNos. 1170,s. 1170
Citation638 F.2d 466
Parties7 Fed. R. Evid. Serv. 909 UNITED STATES of America, Appellee, v. Leonard ALESSI, Thomas Carcone, John Colagrande, Ralph Ferrara, Jacob Jesselli, James Margro, Anthony Martelli, and Louis Peraino, a/k/a Lou Perry, Defendants-Appellants. to 1172 and 1175 to 1176, Dockets 80-1057 to 80-1064.
CourtU.S. Court of Appeals — Second Circuit

Gary A. Woodfield, New York City, for defendants-appellants Alessi and margro.

Ralph S. Naden, New York City, for defendant-appellant Carcone.

Arnold E. Wallach, New York City, for defendant-appellant Ferrara.

David S. Gould, New York City, for defendant-appellant Peraino.

Ira London, Brooklyn, N.Y., for defendant-appellant Colagrande.

Peter J. Peluso, New York City, for defendant-appellant Jesselli.

Bert Koehler, III, Sunnyside, N.Y., for defendant-appellant Martelli.

Frank J. Marine, Atty., Dept. of Justice, Washington, D.C. (Edward R. Korman, U. S. Atty., Eastern District of New York, Brooklyn, N.Y., Robert J. Erickson, Atty., Dept. of Justice, Washington, D.C., Kenneth J. McCallion, Sp. Atty., Brooklyn Strike Force, Dept. of Justice, of counsel), for appellee.

Before FRIENDLY and MANSFIELD, Circuit Judges. *

MANSFIELD, Circuit Judge:

The eight appellants, Alessi, Carcone, Colagrande, Ferrara, Jesselli, Margro, Martelli and Peraino, were among 17 individuals 1 indicted in the District Court for the Eastern District of New York on charges of conspiring to use stolen airline credit cards to obtain airline tickets in violation of 15 U.S.C. § 1644(a) (Count One), which makes it unlawful for any person to use or conspire to use a stolen credit card to obtain money, goods, services or anything else of value. 2 Appellants were also charged with conspiring under 18 U.S.C. § 371 3 to violate Viewed most favorably to the Government, the proof showed a scheme, involving numerous persons, to use lost or stolen airline credit cards to obtain airline tickets which would then be sold for cash at prices substantially below their face value. The credit cards were United Air Travel Plan "Q" cards (Q cards), a type of card issued by airlines to certain businesses and their executives. It permits the holder to make multiple purchases of tickets in any passenger name or names, with no maximum monetary limit.

                15 U.S.C. § 1644(e) 4, which makes it a crime for a person knowingly to use or sell for interstate or foreign transportation tickets which have been purchased or obtained by use of lost, stolen, or fraudulently obtained credit cards (Count Two).  Various appellants were also charged with substantive violations of 15 U.S.C. § 1644(e).  All eight were convicted of both conspiracy counts and of related substantive counts after a jury trial before Judge Eugene H. Nickerson.  5 Judgment was entered on February 1, 1980.  We affirm
                

Typically, the cards were stolen by prostitutes from out-of-town businessmen staying at midtown Manhattan hotels. The prostitutes would then sell the cards to one or more persons ("middlemen") who would use them to obtain airline tickets ordered by others ("retailers"). The orders would have been obtained by the retailers from customers for use on personal travel, to whom the tickets would be sold for cash at discounts ranging from 15% to 60% below the tickets' face value. The tickets would be delivered to the customers shortly before their flights, with payment and delivery often taking place in a car, on the street or in a parking lot. Almost all of the tickets were stamped on their face with the name of the corporation and executive card holder The scheme depended for its success on a steady flow of recently stolen or lost cards, since a stolen or lost card may be successfully used for only a short time to unlawfully obtain tickets from airlines. Soon the card may be invalidated and, in addition, delay exposes the user to greater risk of discovery and apprehension. Moreover, to achieve the maximum utilization of each stolen card for volume purchases of tickets it is important to have a number of middlemen and retailers so that each, by communication and interchange of recently stolen cards with others in the group, can take or place orders which will be executed by using a freshly stolen card. The cash payments involved amounted to thousands of dollars for airline trips to many parts of the world.

and showed that they had been purchased with Q cards. Almost all the thefts, the wholesaling and the retailing activities occurred within the mid-town Manhattan area.

Various businessmen testified that they missed their Q cards after being jostled or solicited by prostitutes. One prostitute stole at least 300 Q cards during the period of the conspiracy and sold them for $125 each to various co-defendants (Casella, Fugario, Goldenberg). The record shows that, in addition to these persons, appellant Colagrande and other co-conspirators purchased lost or stolen cards. Appellant Ferrara met with defendant Fugario at a luncheonette where Fugario bought stolen credit cards from prostitutes. Defendants Casella and Doctor were seen by police meeting at Lexington Avenue and 49th Street with females described as "young, wearing short dresses and bleached hair." Police followed appellant Colagrande to defendant Casella's home.

There was also extensive proof that Colagrande and certain co-defendants used lost or stolen Q cards to purchase airline tickets which were then sold by appellants at substantial discounts to customers for cash. In all, the transactions numbered in the hundreds. In addition there was proof of several hundred communications during the period of the alleged conspiracy, either in person or by phone call, between certain defendants and co-defendants. Frequently, some appellants would refer customers to another member of the group. Often, tickets sold by certain appellants to customers had been purchased on the same stolen card used to obtain tickets sold by other appellants or defendants. Aside from the evidentiary mosaic as a whole, which provided the basis for an inference of a loose-knit scheme, the principal items of proof linking each appellant to the scheme may be summarized as follows:

Colagrande. There was evidence from which it could reasonably be inferred that Colagrande was one of the major actors in the group, purchasing stolen airline cards from prostitutes, using the cards to obtain tickets, selling the tickets to numerous retailers and customers, and collaborating with another possessor of stolen cards, co-defendant "Rocky" Casella, to obtain tickets with the cards and deliver them to customers. Two witnesses, Michael Sottosanti and John Ciarletta, testified to some 40 occasions when they bought airline tickets for cash from Colagrande at a 50% discount or higher, taking delivery on the street, at the theatre, or at Colagrande's house, and then delivering them to friends and relatives who had ordered them and who would pay for them in cash.

Colagrande told Sottosanti that he (Colagrande) had purchased the cards from prostitutes for $125 each. On one occasion Sottosanti saw Colagrande with a wallet filled with credit cards in other persons' names. Colagrande also stated that, in using the stolen cards to purchase tickets, he would often misspell the passengers' names to avoid being discovered. On one occasion he told Sottosanti that he could not obtain tickets at that particular time unless co-defendant Casella had a card. This was corroborated by evidence that Casella did sometimes use a lost or stolen card to buy tickets for Colagrande. There were many Alessi. Three witnesses (Angelo Gamarra, Selma Elves and Harry Schwartzbach) testified to purchasing numerous airline tickets from Alessi at discounts of 40-50%. Another witness, Joe Rugus, directed several purchasers to Alessi and made deliveries of some tickets on Alessi's behalf, receiving cash which he turned over to Alessi. The tickets were purchased with Q cards that had been lost or stolen a few days previously. Delivery of one ticket to Elves was made in an automobile in exchange for $2,000 cash. Alessi once told Schwartzbach that he obtained the tickets at a discount from people who were in debt and sold their tickets to raise money. On another occasion, Alessi (through Schwartzbach) referred a purchaser (Galvez) to appellant Thomas Carcone.

phone calls over a period of six months between Colagrande and appellants Ferrara (35 calls), Margro (20 calls) and Peraino (39 calls), as well as with co-defendants Casella (76 calls) and Pedicine (38 calls). Colagrande sold tickets purchased with the same Q cards as those used to obtain tickets sold by appellant Margro and co-defendants Doctor and Pedicine. A witness named Nanoia testified that he overheard Colagrande and appellant Peraino arguing about Colagrande supplying "the goods."

Alessi also sold some tickets bought with the same stolen Q cards as those used to obtain tickets sold by appellant Jesselli. Telephone company records showed some 44 toll calls between the residences of Alessi and co-defendant Fugario between May and October, 1977. The jury might reasonably have concluded that Alessi placed his orders with Fugario, a middleman who supplied other retailers as well, and that Alessi had knowledge of at least one other retailer's activities. The Government also introduced evidence of a 1972 conviction of Alessi for conspiring to purchase airline tickets with misappropriated credit cards.

Carcone. One customer, Matilde Galvez, testified that she bought tickets on a number of occasions at a 60% discount from appellant Carcone, whom she knew as "Tommy." Carcone demanded payment in cash. She was referred to Carcone by Harry Schwartzbach, at the suggestion of appellant Alessi. When a customer was denied passage by an airline because his ticket was bought with a stolen card, Carcone claimed that the ticket was not illegally obtained, but...

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