United States v. Allegretti

• Decision Date: 21 January 1965
• Docket Number: No. 13915-13918.,13915-13918.
• Citation: 340 F.2d 254
• 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 254 (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.

December 22, 1964.

Rehearing Denied January 21, 1965.

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

Edward V. Hanrahan, U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., for appellee.

Before HASTINGS, Chief Judge, and DUFFY, SCHNACKENBERG, KNOCH, CASTLE, KILEY and SWYGERT, Circuit Judges, en banc.

Rehearing Denied January 21, 1965 en Banc.

KNOCH, Circuit Judge.

This matter came before the Court for reconsideration of its opinion previously rendered on April 22, 1964, 340 F.2d 243, in which the nature of these proceedings is sufficiently set out to make repetition here unnecessary.

We have enjoyed the benefit of oral argument on such re-consideration together with the record and the briefs of counsel.

On reconsideration, this Court adopts the majority opinion handed down April 22, 1964, insofar as that opinion concluded that the evidence was sufficient to convict all the defendants herein on both counts of the indictment of (1) conspiracy to possess whiskey stolen from interstate commerce knowing such whiskey was stolen from interstate commerce, and (2) as to each defendant, of knowingly possessing the stolen whiskey.¹

The trial was a long one. The conspiracy disclosed by the evidence was complicated. There was ample proof that the whiskey in question was stolen from an interstate shipment and abundant circumstantial evidence from which the jury could have concluded that each defendant must have known that the whiskey was stolen. The record shows that all of the defendants contributed to carrying out the object of the common conspiracy to possess the stolen whiskey. We deem it unnecessary to narrate the details of their activities. The record discloses that each engaged in one or more of such acts as storing the whiskey, directing or carrying out its distribution to various cafes, operating those cafes, stowing the whiskey there, and, in some cases, transferring it to other containers, raising funds to enable the conspiracy to continue after government agents had arrested one of the conspirators and after raids on some of the cafes involved, or making false exculpatory statements to the government agents.

There were sharp conflicts in the testimony and in numerous instances the jury would have to resolve issues of credibility. Viewed in the light most favorable to the government, the evidence supports the convictions. Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680.

We do not adopt the majority opinion of April 22, 1964, with respect to the comments made by the Trial Judge in connection with his ruling on the admissibility of acts and statements of certain defendants in evidence against other defendants. It was on the basis of those comments that the majority, in the opinion of April 22, 1964, based its reversal of the convictions here appealed. We adopt instead the dissenting opinion to the effect that the statements of the Trial Judge did not constitute reversible error. 340 F.2d 243, beginning at page 248.

The defendants contend that statements made by alleged co-conspirator defendant David Falzone after his arrest were improperly admitted in evidence against other defendants. Their theory is that with the arrest of David Falzone, and the raids made the same day on some of the cafes where the stolen whiskey was stored, the conspiracy to possess liquor stolen from interstate commerce had come to rest. The evidence in the record supports a contrary holding that David Falzone's arrest did not terminate the conspiracy. Gerald Covelli testified to seeing some of the stolen whiskey in the possession of fellow conspirators two weeks after the earlier raids on some of the cafes. Even while in the custody of the Federal Bureau of Investigation, David Falzone was still issuing instructions for disposition of a part of the stolen liquor. Max Olshon testified that when released on bond, David Falzone stated that he was not unduly worried because Jimmy Allegretti would "straighten out the whole case." Gerald Covelli testified that he and David Falzone then engaged in efforts to raise the money requested by James Allegretti for that purpose. There was evidence that David Falzone continued to participate in the conspiracy. United States v. Agueci, 2 Cir., 1962, 310 F.2d 817, 839, and cases there cited. It was not necessary for the government to prove what, if anything, James Allegretti actually did to "straighten out the case," and continue the conspiracy. There was evidence that he asked for money and that, after David Falzone's arrest and release on bond, Falzone and Gerald Covelli did raise such sums which were turned over to James Allegretti to be used for that purpose.

David Falzone testified that he had seen Agent Weatherwax casually at a motel in April, 1962, had started a conversation with him, and that Agent Weatherwax, on hearing that Falzone proposed to testify at the trial, had said, "Don't be a fool, we will murder you on that stand." On cross-examination, the government attempted in vain to elicit certain testimony of further conversation with Agent Weatherwax respecting David Falzone's reasons for testifying as he did. Under the circumstances, it was proper rebuttal for Agent Weatherwax to testify to those further conversations and to incriminating admissions made by David Falzone in the course of such conversations.

We have scrutinized all the other examples of such evidence, the admission of which is characterized by appellants as reversible error, and must conclude that the position of the defense on this point is not well founded.

It is contended that post conspiracy declarations of one co-defendant, although admitted as to him alone (a matter on which the jury was instructed) were elicited with intent to prejudice the other defendants. Some of these declarations were made in the course of conversation between David Falzone, Gerald Covelli, and various government agents, including William D. Weatherwax, in the U. S. Attorney's office. During cross-examination of Gerald Covelli reference was made to contradictions between his prior statements and his trial testimony. Gerald Covelli was explaining this on re-direct, pointing out that he had been corrected by David Falzone as to certain dates and places in the course of the above conversation. The corrections and attendant comments made by David Falzone, and described by Gerald Covelli, were incriminatory admissions of David Falzone and were clearly admitted only as evidence against Falzone. These admissions were corroborated by the testimony of a government agent present at the time who was properly permitted to testify to that effect and to the attendant circumstances, including the questions and comments in answer to which the incriminatory admissions were made.

The testimony of Gerald Covelli was a vital part of the government's case. The defense witness Robert Westerhausen testified that while he and Covelli were prison-mates at Leavenworth, Covelli told him in the course of many conversations that he was being paid to implicate his co-defendants, who in fact had nothing to do with the stolen liquor, in order to shield the real culprits.

The cross-examination of Mr. Westerhausen brought out the details of his prior...