United States v. De Angelo, 8319.

• Decision Date: 28 October 1943
• Docket Number: No. 8319.,8319.
• Parties: UNITED STATES v. DE ANGELO.
• Court: U.S. Court of Appeals — Third Circuit

138 F.2d 466 (1943)

UNITED STATES v. DE ANGELO.

No. 8319.

Circuit Court of Appeals, Third Circuit.

Argued September 8, 1943.

Decided October 28, 1943.

Harold Simandl, of Newark, N. J., for appellant.

Charles A. Stanziale, Asst. U. S. Atty., of Newark, N. J. (Charles M. Phillips, U. S. Atty., of Trenton, N. J., on the brief), for appellee.

Before JONES, GOODRICH, and McLAUGHLIN, Circuit Judges.

JONES, Circuit Judge.

The appellant, DeAngelo, and two others (William Vasilick and James Francis Rooney) were jointly indicted, under appropriate statute,¹ for having robbed on October 17, 1940, within the district of New Jersey, two messengers of the First National Bank & Trust Company, of Pompton Lakes, New Jersey, of funds belonging to the bank which was a member of the Federal Reserve System. At the same time, they were also indicted by separate bill for having conspired between September 1 and December 1, 1940, within the district of New Jersey, to commit the robbery embraced by the indictment first above referred to. The conspiracy indictment set forth eleven overt acts allegedly committed by one or more of the defendants in furtherance of the conspiracy. Five of the alleged overt acts involved DeAngelo and all averred aggregately the presence of each of the defendants at the scene of the robbery and his participation therein.

Each of the defendants plead not guilty to each of the indictments. At the trial of the robbery indictment, which was had first, the jury found Vasilick and Rooney guilty but acquitted DeAngelo on all counts. Subsequently, all three defendants were brought to trial on the conspiracy indictment. All were convicted and sentenced. DeAngelo alone appeals.

In outlining the conspiracy case, the United States Attorney, after reading the indictment to the jury, stated that "The government contends and will prove that all the defendants participated in the substantive offense which was the object of the conspiracy and joined in and committed the overt acts which I have read to you." Evidence thought to show DeAngelo's presence at and participation in the robbery was then offered by the government. This evidence consisted, for the most part, of the testimony of one Hughes who testified to a certain conversation in his presence between Vasilick, Rooney and DeAngelo (to whom Hughes had just been introduced) in the early part (first week or ten days) of September, 1940, outside a tavern in Clifton, New Jersey, and that, after that, Hughes had seen Rooney and DeAngelo together several times. Also one Spurling who had operated the tavern in Clifton testified that in the latter part of July or early August, 1940, and again about a month later (latter part of August or early part of September), DeAngelo had come into his tavern and had inquired for Rooney. DeAngelo was not otherwise identified as having been present at the scene of the robbery on October 17, 1940.

At the close of the government's case counsel for DeAngelo moved for a directed verdict on the ground that the evidence as to his client was insufficient to support a verdict of guilt. This motion, as well as one to like effect at the close of the case, was denied. The trial court's action in such regard furnishes the basis for the appellant's first contention.

Even if the evidence was insufficient to support a finding that DeAngelo was the perpetrator of one or more of the overt acts committed in connection with the robbery, we think that the conversation between Vasilick, Rooney and DeAngelo in Clifton the early part of September, 1940, as related by Hughes, if believed by the jury, was sufficient to make DeAngelo a party to the alleged conspiracy which was the offense for which he was then on trial. For proof of that offense, it was unnecessary for the government to show that DeAngelo was a perpetrator of one of the overt acts (all of which related to the actual robbery) so long as there was proof, as there was, that another of the co-conspirators committed one of the overt acts alleged. While a conspiracy is pending the act of one conspirator in furtherance of the object of the conspiracy is considered the act of all of them and is evidence against all of them. See Logan v. United States, 144 U.S. 263, 308, 309, 12 S.Ct. 617, 36 L.Ed. 429. This rule is so well known as not to call for extended citation of authority. The assignments based on the alleged insufficiency of the evidence are overruled.

Upon opening DeAngelo's defense at the trial of the conspiracy indictment, his counsel proposed to outline to the jury his intention to prove that the issue of DeAngelo's presence at and participation in the robbery had been present in and was material to the trial for robbery and that the jury's verdict of acquittal conclusively answered that issue adversely to the conspiracy indictment's allegations and the testimony offered by the government in support thereof. The court refused counsel the right so to proceed and, later, sustained the government's objections to counsel's subsequent offers to prove the issues involved in the robbery trial, the questions of fact (relevant to the indictment and plea) submitted by the court to the jury in that trial, and the answers which the jury gave to those questions as indicated by their general verdict of not guilty. For the purposes of the record, the trial court did permit the introduction of the robbery indictment in evidence for the comparative disclosure that the overt acts charged against DeAngelo and the other defendants in the conspiracy indictment covered the same conduct which was the basis of the indictment for the robbery. The...