United States v. Cappello, 300
| Decision Date | 04 February 1964 |
| Docket Number | Docket 28177.,No. 300,300 |
| Citation | 327 F.2d 378 |
| Parties | UNITED STATES of America, Appellee, v. Santo CAPPELLO and Ralph Mallamace, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
Lewis L. Douglass, Asst. U. S. Atty., Eastern District of New York (Joseph P. Hoey, U. S. Atty., Eastern District of New York), for appellee.
H. Elliot Wales, New York City, for appellant Cappello.
Herbert A. Lyon, New York City, for appellant Mallamace.
Before FRIENDLY and HAYS, Circuit Judges, and ANDERSON, District Judge.
The defendants were tried by a court and jury on two counts of an indictment. One of the counts charged them with a conspiracy wilfully to transport obscene films in interstate commerce. On this count they were convicted. The other count, on which they were acquitted, charged them with the substantive offense of transporting films in interstate commerce.
Their appeals are based principally upon the claim that the factual issue of the transportation of obscene films in interstate commerce was decided by the jury in favor of the appellants and, being res adjudicata, could not be used as one of the essential elements proved in support of the conspiracy charge on which they were convicted. They assert that Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932) in holding that consistency in the verdict is not necessary, where offenses are separately charged in the counts of a single indictment, was overruled sub silentio by United States v. Sealfon, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180 (1948). While this court has recently denied a similar claim in a case which, like the present appeal, concerned an acquittal on a substantive count and a conviction on a conspiracy count submitted to the jury at the same time in a single trial, United States v. Marcone, 275 F.2d 205, 206 (2 Cir.), cert. denied 362 U.S. 963, 80 S.Ct. 879, 4 L.Ed.2d 877 (1960), and we see no reason to reexamine that holding, the point could not avail the appellants in any event because there was sufficient evidence to support the jury's verdict of guilty on the conspiracy count without consideration of the evidence of actual transportation across state lines. Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946).
The jury could reasonably have found that Cappello, in April, 1958, made arrangements in Cleveland, Ohio, with a girl named Sherrillyn Ranallo for her to go to New York to make "strip...
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