United States v. Bufalino

• Decision Date: 28 November 1960
• Docket Number: No. 357,Docket 26194.,357
• Parties: UNITED STATES of America, Appellee, v. Russell A. BUFALINO, Ignatius Cannone, Paul C. Castellano, Joseph F. Civello, Frank A. DeSimone, Natale Evola, Louis A. Larasso, Carmine Lombardozzi, Joseph Magliocco, Frank T. Majuri, Michele Miranda, John C. Montana, John Ormento, James Osticco, Joseph Profaci, Anthony P. Riela, John T. Scalish, Angelo J. Sciandra, Simone Scozzari and Pasquale Turrigiano, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

285 F.2d 408 (1960)

UNITED STATES of America, Appellee, v. Russell A. BUFALINO, Ignatius Cannone, Paul C. Castellano, Joseph F. Civello, Frank A. DeSimone, Natale Evola, Louis A. Larasso, Carmine Lombardozzi, Joseph Magliocco, Frank T. Majuri, Michele Miranda, John C. Montana, John Ormento, James Osticco, Joseph Profaci, Anthony P. Riela, John T. Scalish, Angelo J. Sciandra, Simone Scozzari and Pasquale Turrigiano, Defendants-Appellants.

No. 357, Docket 26194.

United States Court of Appeals Second Circuit.

Argued June 9, 1960.

Decided November 28, 1960.

Robert S. Erdahl, Dept. of Justice, Washington, D. C. (Malcolm Richard Wilkey, Asst. Atty. Gen., S. Hazard Gillespie, Jr., U. S. Atty., for the Southern District of New York, New York City, Beatrice Rosenberg, Philip R. Monahan, Washington, D. C., Michael A. Berch and John E. Sprizzo, New York City, Dept. of Justice, Washington, D. C., on the brief), for appellee.

Frederick S. Abrams, New York City, for defendant-appellant Russell A. Bufalino.

Remo A. Allio, Endicott, N. Y., for defendants-appellants Ignatius Cannone and Pasquale Turrigiano.

Osmond K. Fraenkel, New York City, for defendants-appellants Paul C. Castellano and Carmine Lombardozzi.

Percy Foreman, Houston, Tex. (David M. Markowitz, New York City, on the brief), for defendant-appellant Joseph F. Civello.

A. L. Wirin, Los Angeles, Cal. (William B. Beirne and Fred Okrand, Los Angeles, Cal., on the brief), for defendants-appellants Frank A. De Simone and Simone Scozzari.

Frederick S. Abrams, New York City, for defendant-appellant Natale Evola.

Anthony A. Calandra, Newark, N. J. (Aaron J. Jaffe, New York City, on the brief), for defendants-appellants Louis A. Larasso and Frank T. Majuri.

Edward H. Levine, New York City (Vernon C. Rossner, New York City, on the brief), for defendant-appellant Joseph Magliocco.

Abraham H. Brodsky, New York City, for defendant-appellant Michele Miranda.

Frank G. Raichle, Buffalo, N. Y. (Maurice N. Nessen, New York City, and Raichle, Moore, Banning & Weiss, Buffalo, N. Y., on the brief), for defendant-appellant John C. Montana.

George Feit, New York City (Abraham Feit, New York City, on the brief), for defendant-appellant John Ormento.

Stanford Shmukler, Philadelphia, Pa. (Jacob Kossman, Philadelphia, Pa. on the brief), for defendants-appellants Angelo J. Sciandra and James Osticco.

Henry G. Singer, Brooklyn, N. Y. (Harry Silver, Brooklyn, N. Y., on the brief), for defendant-appellant Joseph Profaci.

Louis Mansdorf, New York City, for defendant-appellant Anthony P. Riela.

Osmond K. Fraenkel, New York City (Fred H. Mandel, Cleveland, Ohio, on the brief), for defendant-appellant John T. Scalish.

Leonard B. Boudin, David Scribner, New York City (David G. Lubell, Shirley Fingerhood, Sidney Schreiberg, New York City, of counsel), for National Lawyers Guild, amicus curiae.

Nanette Dembitz, Melvin L. Wulf, New York City (Rowland Watts, New York City, of counsel), for American Civil Liberties Union and New York Civil Liberties Union, Amici Curiae.

Before LUMBARD, Chief Judge, and CLARK and FRIENDLY, Circuit Judges.

LUMBARD, Chief Judge.

Russell Bufalino and nineteen co-defendants appeal from judgments of conviction in the Southern District of New York for conspiring to obstruct justice and commit perjury (18 U.S.C. §§ 371, 1503, 1621) by giving, before federal grand juries, false and evasive testimony regarding a gathering attended by them and at least 39 others at the home of Joseph Barbara, Sr., in Apalachin, New York, on November 14, 1957. Named as members of the conspiracy were seven other co-defendants and 36 co-conspirators.¹ The appellants were all sentenced to prison terms running from three to five years, and in addition thirteen of them were each fined $10,000.

The indictment, the charging part of which is set forth in the margin,² alleged a conspiracy from November 14, 1957, the date of the Apalachin gathering, to the filing of the indictment on May 13, 1959. The 29 overt acts of the indictment which the court submitted to the jury charged that pursuant to the conspiracy various conspirators made statements and gave testimony under oath at different stated places and times from November 14, 1957 to May 11, 1959, including testimony on eleven occasions before federal grand juries in the Southern District of New York.

The indictment did not allege what the November 14, 1957 gathering at Apalachin was about, and the government stated at the beginning of the trial that it could present no evidence of its purpose. There is nothing in the record of the trial to show that any violation of federal or state law took place or was planned at the gathering, although federal grand juries in the Southern and Western Districts of New York on twenty occasions over the following year and one-half, and a variety of other federal and state officials on numerous other occasions, questioned many of these present about the Apalachin gathering and the surrounding circumstances.

We find that in two essential respects the evidence was insufficient to prove the crime charged. First, we find that the government failed to introduce sufficient evidence to support a finding that the defendants agreed to lie about the gathering. Second, we hold that the evidence was insufficient to show that the defendants had reason on November 14, 1957, to anticipate that any of them would be called to testify under oath about the events of that day.

I

The government contends that the November 14 gathering was planned in advance; that when those present became aware that law-enforcement officers had discovered the assemblage they thought there might be an investigation and immediately agreed to give false, fictitious and evasive accounts of the circumstances of the gathering to official inquiries, including formal proceedings calling for sworn testimony; and that when some were summoned before federal grand juries inquiring into the nature of the gathering, they testified falsely pursuant to the agreement. The government's claim was that "the participants gave false and evasive accounts as to the planning and purpose of the meeting and the circumstances and reasons for their presence, all of which were basically similar in that they were calculated to explain away the meeting as a mere co-incidental gathering."³

The government's proof of the agreement consisted entirely of testimony by state and federal officers regarding unsworn statements made by the conspirators on November 14 and on numerous occasions thereafter and of excerpts from official records of sworn statements made after November 14. The defendants did not take the stand and offered no evidence to counter the government's contention that they had conspired.⁴ The government's theory is that the similarity of the statements, insofar as "they all deny planning and seek to concoct a picture of accidental and coincidental presence at Barbara's,"⁵ and insofar as most of them explain the visits as motivated by concern for Barbara's illness, can be accounted for only if there was an agreement on November 14, 1957.

The government claimed that the conspiracy was formed between 12:40 P.M. on November 14, when Barbara's wife saw the officers' unmarked car in the driveway, and 1:20 P.M. when a mass exodus from Barbara's home began. The court charged the jury that in order to find that any defendant was a member of the conspiracy it would have to conclude that he "willingly entered" the conspiracy sometime before midnight on November 14, at which time the officers completed their questioning of the alleged conspirators at the state police barracks at Vestal.

A. The Events on November 14

At 12:40 P.M. on November 14, Sergeant Edgar Croswell of the New York State Police, accompanied by another state trooper and two agents of the Alcohol and Tobacco Tax Unit of the U. S. Treasury Department, drove from a public road into the parking lot in front of Barbara's garage. Barbara's home was an estate of 130 acres in a rural section, and his house and garage were on a dead-end dirt road. After recording the license numbers of some of the eight or ten cars in the lot and observing several unidentified men, they drove away. Before leaving, however, Croswell noticed four or five men walking or running toward the house and saw at least 20 other cars parked away from the house. At 12:50, Croswell and his companions parked their car half a mile from Barbara's home and set up what amounted to a roadblock.

When Croswell backed out of the Barbara driveway Mrs. Barbara saw his car and exclaimed, in the hearing of her maid, "There's the state troopers." A few minutes later Ignatius Cannone drove past the roadblock on his way to Barbara's. At about 1:15, Bartolo Guccia, in his pick-up truck, drove down from Barbara's past the parked police car and returned five minutes later. The jury could have concluded that Cannone and Guccia reported what they had seen, and that Guccia had been sent down the road to investigate.

During the next few hours, 58 men were stopped and asked to identify themselves. Of these, 35 were more or less perfunctorily questioned by state troopers, occasionally assisted by federal officers.⁶ At 1:20 P.M. Emanuel Zicari and Dominic Alaimo drove past the roadblock and were stopped, on radioed instructions from Croswell, by other officers and asked to identify themselves. Next came Russell Bufalino in his Chrysler Imperial with Joseph Ida, Gerardo Catena, Dominick Oliveto and Vito Genovese. Upon being stopped at the roadblock, they all identified themselves. Bufalino said that he had come to visit his sick friend, Barbara. Vito Genovese remarked that he understood that he did not have to say anything and he said nothing. Ida, Catena, and Oliveto said nothing about the meeting and apparently were not asked about it. Other cars, driven by Joseph Magliocco, John Ormento, Pasquale Turrigiano, Anthony Riela, Pasquale Monachino, Joseph...