United States v. Calarco

• Decision Date: 16 April 1970
• Docket Number: No. 144,Dockets 33522-3,145 and 509,and 34385.,144
• Citation: 424 F.2d 657
• Parties: UNITED STATES of America, Appellee, v. John CALARCO, Frank Gilfone and Teddia Riviello, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

424 F.2d 657 (1970)

UNITED STATES of America, Appellee, v. John CALARCO, Frank Gilfone and Teddia Riviello, Appellants.

Nos. 144, 145 and 509, Dockets 33522-3, and 34385.

United States Court of Appeals, Second Circuit.

Argued March 5, 1970.

Decided April 16, 1970.

Wellington A. Newcomb, New York City, for appellant Calarco.

Baldwin Maull, Jr., New York City, for appellant Gilfone.

Samuel D. Bozza, Newark, N. J., for appellant Riviello.

Jay Gold, Asst. U. S. Atty., Southern District of New York (Whitney North Seymour, Jr., U. S. Atty., and Peter L. Zimroth, Asst. U. S. Atty., Southern District of New York, on the brief), for appellee.

Before LUMBARD, Chief Judge, ANDERSON, Circuit Judge, and DOOLING,^* District Judge.

ANDERSON, Circuit Judge.

John Calarco, Frank Gilfone and Teddia Riviello appeal from their convictions upon jury verdicts of guilty of conspiring to steal a truck containing an interstate shipment of merchandise and of the substantive offense of stealing the truck, in violation of 18 U.S.C. §§ 371, 659 and 2. We affirm.

There were eight co-conspirators named in the indictment, among whom there was a confessed hijacker of wide experience, named Roland Warren, who was the chief witness for the Government. Of the others, three entered guilty pleas before trial, and the appeal of a fourth, who was convicted with the appellants Calarco, Gilfone and Riviello, has been dismissed.

There was evidence from which the jury could find the following facts: On December 14, 1966, Warren met with David Tronco and Philip Garretson in a bar in Newark to discuss hijacking a truck which made a regular journey from a New Jersey railroad yard into Manhattan, loaded with television sets and phonographs. Tronco said he knew "people in Jersey City" who would be interested in buying the shipment; and he telephoned the appellant Calarco, who joined the other three at the bar. Calarco then asked the others to accompany him across town to talk to "the people that was going to get the load of televisions."

Calarco, Warren, Tronco and Garretson joined James Matthews, who had been waiting outside the bar in Tronco's Thunderbird automobile, and drove to the Democrat Club, another bar. Calarco went inside alone, explaining that he was going to talk to "the buyer." After about an hour, Tronco went to get Calarco, who came out and told the other four in the car that he and they would follow "these people" — indicating two individuals emerging from the Democrat Club. Calarco told the others he "wanted to show them where to bring the truck" after the hijacking.

Those in the Thunderbird then followed a Buick, driven by the appellant Riviello, who was accompanied by an unidentified man, to a location on the McCarter Highway, near Fourth Avenue in Newark. Both cars stopped there and turned off their lights, with the Thunderbird directly behind the Buick. Calarco got out, went over to the Buick, and spoke with Riviello for about fifteen minutes. As Calarco was returning, a police patrol car was approaching, but he got back into the Thunderbird and said, "When you get the truck this is where you are going to bring it, bring it here." At that point, the police arrived and required the occupants of both cars to identify themselves. Riviello explained to an officer that he was just giving the people in the other car directions to Jersey City, and he departed. Tronco and Warren were arrested when it was discovered that traffic warrants were outstanding against them. They were shortly released on bail provided by Calarco, who told Warren that the money had come from Riviello.

Notwithstanding this unforeseen interruption, members of the group reassembled early on the morning of December 16, at Calarco's apartment in Jersey City, to make detailed plans for the hijacking. Those present were Calarco, Warren, Garretson, Matthews, Tronco, and a new addition to the group, John Orangio. It was here agreed that Tronco would approach the driver of the target truck when he boarded the ferry to Manhattan sometime around 5 a. m. that same day and ask for a ride. He was further instructed to draw a gun, provided by Calarco, when the truck had disembarked and reached a point some five blocks away from the ferry in Manhattan, and at that time to order the driver out of the cab. The plan then called for another member of the group to pull alongside the truck in a car, stolen for this purpose, and to take the driver in it to some suitably distant point before releasing him. In the meantime, Warren was to arrive in still another car alongside the stolen truck and drive it to the Tunnel Diner outside the Holland Tunnel in Jersey City, where Calarco would meet him and give further instructions. Calarco gave one of the members of the group the phone number of a motel room in which he, Calarco, would be waiting for notification that Warren was on his way to the diner with the truck.

Tronco succeeded in hitching a ride with the truck driver, one Calanders Cherry; but from that point on, everything went wrong for the hijackers. Matthews was left behind in the washroom of a New Jersey diner when his companions and the ferry suddenly departed. Tronco then pulled the gun on Cherry when the truck was barely out of sight of the Manhattan ferry slip. Rather than surrender the truck, Cherry put up a fight, which delayed things until Garretson arrived in the stolen car and helped to subdue him. While Tronco and Garretson drove Cherry to Yonkers, members of the group following in another car approached the truck. They decided, however, that completion of the robbery had become impossible because several construction workers were standing near the prematurely-seized truck. They, therefore, simply left it standing on West Street, with its engine running. One of them called Calarco to tell him the news, and they returned to New Jersey.

When Warren got back to the diner, he found Calarco, the appellant Gilfone, and an unidentified man waiting outside. The four of them and Orangio drove back to Manhattan to see if the truck might yet be driven away; but when they found a number of people milling around it, they gave up.

Calarco and Warren went back to the Democrat Club in Newark, and Calarco went inside for a few moments. When he came out, he told Warren that Tronco, following his abduction of Cherry, got in touch with Riviello and learned that his premature action had frustrated the attempt to get the truck back to New Jersey. Tronco then said to Riviello that he would finish the job himself, and meet "those two guys" at a new rendezvous point on Route 46. Calarco told Warren that the two of them must go to the unloading place on Route 46 to warn Gilfone, and the unidentified person with him, that a police trap was now suspected. Meanwhile, Tronco and Garretson had returned from Yonkers to the truck, which, after several hours, was still parked on West Street with its engine running.

The police, whom Cherry had called from Yonkers, found the truck and staked out the area around it. They apparently saw Tronco approach the truck around 9 a. m., but when a detective went after him, he fled. Garretson came to Tronco's rescue in the stolen automobile, and the two of them made their escape down the street as the detective fired five shots into the car. But they were not destined to drive very far. No sooner had they eluded the detective than Garretson crashed the getaway car into another automobile while attempting to avoid a double-parked truck a block and one-half away. Both Garretson and Tronco were arrested as they attempted to flee on foot.

Riviello and Calarco, after their arrest, both waived their rights to remain silent. They were shown photographs of some of the others who were being held in connection with the offense, but Riviello denied knowing Calarco, and Calarco denied knowing either Riviello, Warren, Garretson or Gilfone.

All of those indicted who did not plead guilty were convicted after being tried; and Calarco and Riviello were each sentenced to concurrent terms of five years for conspiracy and ten years on conviction of the substantive theft offense. Gilfone received concurrent prison terms of four years on each of the two counts.

Riviello argues in his appeal that the evidence was insufficient to establish either his participation in the conspiracy or that he aided and abetted the theft itself. The only connection shown between these events and him, he alleges, was his "mere presence" with the others at the McCarter Highway site. He claims that all the other testimony involving him consisted only of hearsay statements by various conspirators.

As has been many times stated, the rule is that before the jury may be permitted to consider other conspirators' hearsay utterances in furtherance of the conspiracy as a means of determining a particular defendant's guilt beyond a reasonable doubt, the trial judge must first conclude from all the evidence that the defendant in question has been shown to be a member of that conspiracy "by a fair preponderance of the evidence independent of the hearsay utterances." United States v. Geaney, 417 F.2d 1116 (2 Cir. Nov. 6, 1969). The non-hearsay evidence linking Riviello to the conspiracy in this case included not just his "mere presence" at a certain site, but also his acts of leading the others from the Democrat Club to that location and there relaying instructions to them through Calarco.¹ This was sufficient for the trial judge to conclude that Riviello was a participant in the conspiracy and that hearsay statements of his co-conspirators in furtherance of the conspiracy were admissible against him. United States v. Nuccio, 373 F.2d 168, 173-174 (2 Cir.), cert. denied, 387 U.S. 906, 87 S.Ct. 1688, 18 L.Ed.2d 623 (1967).

All of the appellants claim that the trial court committed prejudicial error in permitting the Government to introduce police file photographs of them in evidence. Each appellant's...