United States v. Allegretti, 13915-13918.

• Decision Date: 03 August 1964
• Docket Number: No. 13915-13918.,13915-13918.
• Citation: 340 F.2d 243
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James ALLEGRETTI, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. David FALZONE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Frank LISCIANDRELLO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Louis DARLAK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

340 F.2d 243 (1964)

UNITED STATES of America, Plaintiff-Appellee, v. James ALLEGRETTI, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. David FALZONE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Frank LISCIANDRELLO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Louis DARLAK, Defendant-Appellant.

Nos. 13915-13918.

United States Court of Appeals Seventh Circuit.

April 22, 1964.

Rehearing Granted August 3, 1964.

Maurice J. Walsh, Anna R. Lavin, Daniel C. Ahern, Julius Lucius Echeles, Frank W. Oliver, Chicago, Ill., for appellant.

Edward V. Hanrahan, U. S. Atty., John Peter Lulinski, Atty., Chicago, Ill., for appellee; Frank E. McDonald, Chicago, Ill., John Powers Crowley, Asst. U. S. Atty., of counsel.

Before SCHNACKENBERG, KNOCH and CASTLE, Circuit Judges.

Rehearing Granted August 3, 1964 en Banc.

SCHNACKENBERG, Circuit Judge.

James V. Allegretti, Louis A. Darlak, David Falzone and Frank Lisciandrello, defendants, have severally appealed from judgments on the verdict of a jury and their sentences to imprisonment in pursuance thereof.

Defendants were tried on an indictment charging in count I that they and Joseph Lisciandrello and Gerald Covelli conspired to possess goods which they knew were stolen from an interstate shipment, in violation of 18 U.S.C.A. § 371. In count II they were charged with possession of Old Sunnybrook whiskey stolen in interstate commerce, and known to have been stolen, in violation of 18 U.S. C.A. §§ 2 and 659.

Although the indictment was returned in the district court for the Northern District of Illinois, Eastern Division, it was transferred to the district court for the Southern District of Illinois, Northern Division, for trial.

Defendant Joseph Lisciandrello, who suffered illness during the trial, was granted a mistrial.

The trial started on March 28, 1962. Ending on April 12, 1962, the jury heard the testimony of 20 government witnesses, as the court reserved its rulings upon repeated objections made by defense counsel to parts of the testimony, relating to acts, conversations and statements made by one or more of the defendants, out of the presence of the other defendants.

The district court, on April 12, 1962, spoke directly to the jury and said:

"Ladies and gentlemen, will you please give me your attention:

"From time to time objections have been made by defendants to testimony as to acts, conversations, and statements, had or made by one or more of the defendants, but out of the presence of the other defendants. Whenever such objections have been made, I have reserved my ruling thereon, upon the Government\'s avowal to connect up such testimony.

"I now rule that the Government has sustained its avowed burden, and has shown to the satisfaction of the Court that a connection does exist between each such act, conversation and statement and the several defendants. Emphasis supplied.

"At this time, therefore, I overrule each objection as to which my ruling was reserved from time to time as such objections were made; and I now rule that the testimony relating to the acts, conversations and statements by the several defendants and in each such instance is admissible and admitted as evidence against all of the defendants whether or not each was present when such acts were done, such conversations were had or such statements were made.

"I therefore instruct you that you may consider the testimony of the character above mentioned as evidence against such other defendants who were not then present, as well as against those defendants who are shown by the testimony to have been then present and participating in such arguments, statements, and conversations.

"Now, of course, this ruling is in regard only to the matters which the Court reserved from time to time."

Thereupon all defense counsel joined in a motion for a mistrial, on the ground that the court had invaded the province of the jury. That motion was denied. Thereupon the government rested its case, and the evidence in defense was received.

1. It is undisputed that the government had the burden of submitting to the jury sufficient evidence showing beyond a reasonable doubt that the conspiracy charged in count I existed and that defendants were members thereof. The court accordingly instructed the jury as to its duty in this respect. He also defined the term "conspiracy", as set forth in 18 U.S.C.A. § 371. The court characterized a conspiracy as "a kind of `partnership in criminal purposes' in which each member becomes the agent of every other member."

Faced with the duty of deciding whether a conspiracy had been proved by the evidence, the jury was aware that the court had told it that the government had "shown to the satisfaction of the Court that a connection does exist between each such act, conversation and statement and the several defendants." (Italics supplied.) It was for this reason that the court instructed the jury that it might consider certain evidence, which it had mentioned, against such other defendants who were not then present, as well as against those defendants who were present and participating in such statements and conversations.

Of course the court had the duty to make a ruling upon the objections in question. However, we know of no requirement that the court state to the jury its reasons therefor. We have no doubt that a statement by the court that the government had shown to the satisfaction of the court that a connection existed between such relevant evidence and the various defendants charged with conspiracy, undoubtedly had the effect of conveying to the jurors the court's belief that a conspiracy existed, which was the very question which the jury was required to ascertain. We are convinced that a jury would construe the word "connection", used by the court in its oral statement, as closely akin to a conspiracy, as characterized by the court in the foregoing instruction.

In United States v. Pronger, 7 Cir., 287 F.2d 498 (1961), where defendant Pronger had appealed from a judgment convicting him on the verdict of a jury on a two-count indictment involving the movement in interstate commerce of a stolen automobile, it was urged at the trial that there was a common scheme or plan between Pronger and a second defendant. The court instructed the jury that it should find whether or not there was any common design or common concert of action between the defendants with regard to the charges made and that the jury should determine, from evidence, whether or not the defendants were guilty of the charges. In referring to certain remarks of the court, we said, 287 F.2d at 500:

"In a case such as this a defendant cannot be bound by the acts or declarations of another defendant until the common design or common concert of action between the two defendants and their participation have been established. Glasser v. United States, 315 U.S. 60, 74, 62 S.Ct. 457, 86 L.Ed. 680; United States v. United States Gypsum Co., D.C., 67 F.Supp. 397, 451; May v. United States, 84 U.S.App.D.C. 223, 175 F.2d 994, 1008.

"Whether intentional or not, we believe that the court\'s remarks had the effect of telling the jury that the government had proved that the common design or common concert of action of Roberts and Pronger, as charged, had been proved. If they did not have that effect, they merely succeeded in confusing the jury. In either event, Pronger was deprived of a fair trial by jury. `A conviction ought not to rest on an equivocal direction to the jury on a basic issue.\' Bollenbach v. United States, 326 U.S. 607, 613, 66 S.Ct. 402, 405, 90 L.Ed. 350."

We reversed as to defendant Pronger and remanded for a new trial.

In the case at bar, in attempting to justify the statement by the district court that the government had shown to the court's satisfaction that a connection existed between the evidence to which the court referred and the various defendants, government counsel rely on United States v. Bernard, 7 Cir., 287 F.2d 715 (1961). However, 287 F.2d at 720, it appears that the district court's statement to the jury not only was different from that used in the case at bar, but was properly limited so as not to convey to the jury the opinion of the court that a common plan or design had been shown to exist. But the court did instruct that evidence, with certain exceptions, which when received was not to be considered against any defendant to whom the evidence did not pertain, could thereafter be considered as to all defendants if the jury found that there was a common plan or design proved.

We there held that the question of whether there was such a plan or design was properly submitted to the jury.

At no place in Bernard did it appear that the district court attempted to give any reason or explanation for its ruling, which was undoubtedly correct. The court simply announced to the jury its ruling admitting the evidence against all defendants, but left to the jury the question of deciding whether a common plan or design was proved beyond a reasonable doubt. We adhere to the opinion written by District Judge Mercer, who sat with us in deciding that case.

We are constrained to hold that, in the case at bar, the expression of the court's reasons did have the effect of suggesting to the jurors that the court believed that a conspiracy existed, and for that reason invaded the province of the jury. This requires a reversal of the judgments and sentences on count I.

2. In view of our holding in regard to count I, it becomes necessary to consider the verdict, judgments and sentences, insofar as they pertain to count II, which charges defendants with possession of whiskey stolen from a shipment in interstate commerce and known by them to have been stolen.

The court instructed the jury that each offense and the evidence applicable thereto should be considered seprately. The jury was further instructed, specifically as to count II, that...