United States v. Cerone, 8791

• Decision Date: 22 October 1945
• Docket Number: No. 8791,No. 8797.,8796,8791,8797.
• Citation: 150 F.2d 382
• Parties: UNITED STATES v. CERONE et al. (two cases). SAME v. ALOISIO et al.
• Court: U.S. Court of Appeals — Seventh Circuit

150 F.2d 382 (1945)

UNITED STATES v. CERONE et al. (two cases). SAME v. ALOISIO et al.

Nos. 8791, 8796, No. 8797.

Circuit Court of Appeals, Seventh Circuit.

June 30, 1945.

Rehearing Denied July 23, 1945.

Writ of Certiorari Denied October 22, 1945.

Victor E. La Rue, Thomas F. Reilly, Gerald T. Wiley, and James C. Leaton, all of Chicago, Ill., for appellants.

J. Albert Woll, U. S. Atty., and William J. Connor and George G. Kelly, Asst. U. S. Attys., all of Chicago, Ill., for the United States.

Before EVANS, MAJOR, and KERNER, Circuit Judges.

Writ of Certiorari Denied October 22, 1945. See 66 S.Ct. 98.

MAJOR, Circuit Judge.

These three appeals are from judgments wherein the defendants were, after trial by jury, convicted of violating Sec. 311, Title 50 U.S.C.A.Appendix. There were two indictments upon which separate trials were had. Frank John Cerone and James Cerone, appellants in 8791, were tried and convicted in one case; George Sam Aloisio and William Aloisio, appellants in 8796, and Frank John Cerone, appellant in 8797, were tried and convicted in another case. Frank John Cerone, appellant in 8797, has perfected a separate appeal. Thus the appeal in 8791 is from one judgment and the appeals in 8796 and 8797 are from another judgment.

For the purpose of argument and presentation to this court, the appeals were consolidated and may be appropriately disposed of in one opinion. The indictments in the two cases charged the same offense in precisely the same language, the questions raised before this court are similar and the testimony relied upon by the government in support of the judgments is of the same nature. In appeal 8791, it was charged that the defendant James Cerone evaded service in the land or naval forces of the United States and that the defendant Frank John Cerone aided and abetted in the evasion of such service. In appeals 8796 and 8797, it was charged that defendant George Sam Aloisio evaded service in the land or naval forces and that William Aloisio and Frank John Cerone aided and abetted in the evasion of such service. The manner of the evasion as described in each indictment was that the defendants by the offer and promise of certain sums of money to certain United States naval personnel assigned to service in the Armed Forces Induction Station at Chicago, Illinois, persuaded and induced such personnel to make false, untrue and fraudulent entries upon the record of examination commonly called the "Buck Sheet" while the defendants were being examined as to physical and mental fitness for services in the Armed Forces, and that by means of such entries the defendants were rejected for service.

The principal errors assigned are (1) that the indictments were insufficient, (2) that the defendants were entitled to a more specific bill of particulars, (3) that defendants' challenge to the venire should have been allowed, (4) that the argument of government counsel to the jury was improper, and (5) that defendants were entitled to a directed verdict. We think there is no reason to enter into a detailed discussion as to (1), (2) and (3). It is sufficient to state that the indictment charged the offense substantially in the language of the statute upon which it was predicated and we think it was sufficient. The court required the government to furnish a bill of particulars, which the defendants contend should have been more specific. We are of the view that the bill of particulars as furnished was adequate and that the challenge to the venire was properly denied.

The question raised by the court's refusal to direct a verdict is of sufficient importance to require a brief summary of the proof relied upon by the government. The defendants James Cerone and George Aloisio were both registered with Local Board No. 118, the former having been ordered to report for a pre-induction physical examination on May 24, 1944, and the latter to report for such examination on May 12, 1944. Each of these defendants was rejected as physically unfit on the dates they were ordered to report. The controversy concerning the court's refusal to direct a verdict revolves around the manner in which these rejections were procured. More specifically, the question for decision is whether the manner of their procurement constitutes entrapment as claimed by the defendants. The defense of entrapment was invoked at the trial, and the court's charge to the jury was as fair and impartial as the defendants could expect; in fact, no objection was raised to the court's charge in this respect, and it is not now argued but that the jury was properly instructed as to the law of entrapment. Under such circumstances in order to justify a reversal because of the court's refusal to direct a verdict, it would be necessary for us to hold as a matter of law that entrapment was shown.

No more than a brief statement of the facts is necessary to show that the issue presented to this court must be decided adversely to the defendants. In March, 1944, Frank Cerone made arrangements with Chief Petty Officer Stephenson, a navy man assigned to the induction station at Chicago, by which the latter agreed to bring about certain rejections by falsely marking a registrant's "Buck Sheet." As a result of this plan, several rejections were procured for Cerone's friends. Stephenson was paid $1,000 for each rejection. Sometime during these operations, Stephenson sought to enlist the assistance of Chief Petty Officer Curran (also assigned at the induction station) in securing fraudulent rejections. Upon learning of Stephenson's activities, Curran reported the matter to his superior officers and the Federal Bureau of Investigation, who instructed him to go along with Stephenson in the plan. An understanding was had between Stephenson and Curran, by which a registrant was to drop out of the medical line at a certain point, conceal his "Buck Sheet" so that the military police stationed in the induction center would not see it, then proceed to Curran's office where Curran would stamp his papers, "Rejected by the Armed Forces," stating the reasons therefor, whereupon the registrant was to return to the line as a reject.

On April 23, 1944, Stephenson was taken to the...