United States v. Daddano, 17283

• Citation: 432 F.2d 1119
• Decision Date: 02 December 1970
• Docket Number: 17340.,No. 17283,17283
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William DADDANO et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

432 F.2d 1119 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. William DADDANO et al., Defendants-Appellants.

Nos. 17283, 17340.

United States Court of Appeals, Seventh Circuit.

October 1, 1970.

Rehearings Denied December 2, 1970.

COPYRIGHT MATERIAL OMITTED

Raymond J. Smith, Anna R. Lavin, George F. Callaghan, John J. Cogan, Chicago, Ill., Richard Cain, Texarkana, Tex., for defendants-appellants.

William J. Bauer, U. S. Atty., Michael B. Nash, Asst. U. S. Atty., Chicago, Ill., Thomas A. Foran, U. S. Atty., Chicago, Ill., for plaintiff-appellee; John Peter Lulinski, William Allen, Asst. U. S. Attys., of counsel.

Before FAIRCHILD and CUMMINGS, Circuit Judges, and GRANT, District Judge.¹

FAIRCHILD, Circuit Judge.

These are appeals by five defendants from judgments entered upon guilty verdicts after a joint trial.

The evidence, when conflicts are resolved and permissible inferences drawn consistently with the verdicts, presents an unusual story, which we now, in outline, recount. The names of the present defendants are italicized.

On September 17, 1963, Michael La Joy, his uncle, Frank De Legge, Sr., Joseph D'Argento, and Larry Fletcher were driving home to Chicago from Detroit. They began to talk about robbing the Franklin Park Bank in Franklin Park, Illinois, where De Legge, Sr. lived. The plans for the venture were developed at several later conversations in various places. The robbery was carried out shortly before noon on September 23.

There were several additions to and defections from the group. La Joy, D'Argento, Gerald Tomaszek, and Guy Mendola entered the bank. Patrick Schang was the driver and remained in the stolen automobile in which the group reached and left the bank. They had just come from the home of De Legge, Sr., on Manor Drive. De Legge, Sr. and Frank De Legge, Jr. had participated in the planning and had assisted in various preparations. De Legge, Sr. had suggested that after the robbery the group should go to a vacant house on Dora street which he owned and which was for sale. The car could be driven into the attached garage and the robbers could leave, presumably without drawing attention to themselves.

At the time of the robbery, De Legge, Sr. remained in his car near the bank. He had agreed to attempt to collide with a police car if that became necessary to aid in the getaway. The robbery was timed so that a freight train would be passing on a track just north of the bank and forming a barrier between the bank and the Franklin Park police station, north of the track. De Legge, Jr. had agreed to, and did, make a telephone call to the police station before the train arrived. He gave false information concerning a bomb in a school farther north, hoping to decoy the police in that direction.

Unfortunately for the robbers, De Legge, Jr.'s telephone call was too late to be useful, virtually coinciding with the alarm from the bank. Squad cars were dispatched promptly. The train was shorter than expected, and by driving on the sidewalk the police were able to get around the caboose and give immediate chase. De Legge, Sr. failed to produce a collision.

Schang, the robbers' driver, was able, however, to lose his pursuers. He drove to the Dora street house and put the car in the garage. The men left the money, disguises and other equipment in the house, and departed on the run. Considerable commotion had been caused, however, by high speed, squealing tires, and flying gravel, and a series of mishaps, including the unforeseen presence of a garbage truck in the alley through which they drove. The men were seen by one or more neighbors. A short time later the police arrived, found the car, and searched the house.

There had been an interval, however, in which the De Legges had come to the house, hidden the discarded items, and removed the money. Questioned later, they apparently satisfied the police or FBI agents that they were not involved with the robbers nor the use by the latter of De Legge Sr.'s vacant house.

In some manner La Joy, D'Argento, Tomaszek, and Schang promptly became suspects. On September 26, these four were indicted. They were arrested, but freed on bail October 3. De Legge, Sr. had taken some of the bank money and paid it to Rocco Montagna, a professional bondsman, who arranged for the bonds. De Legge, Sr. told La Joy and D'Argento in Montagna's presence that the money had come from proceeds of the robbery.

A question arose why Mendola, who had been a participant, had not been indicted. Later Schang began to suspect that La Joy might have informed the police. Schang told Montagna of his suspicions. He was wary, however, because La Joy was the nephew of William Daddano. The evidence demonstrated that Daddano was one who spoke with a voice of authority in such matters. He is also De Legge Sr.'s brother-in-law and the uncle of both La Joy and De Legge, Jr. Montagna took Schang to Daddano.

Daddano decided that the participants would take lie detector tests, and that if anyone failed the test, the others could shoot him if they wished. Accordingly, in response to word from Montagna, La Joy, Schang, D'Argento, and Tomaszek met Montagna and Daddano at a bowling alley in the latter part of October. Montagna took the participants across the street to a motel. They went into a room one by one and were given a polygraph test by William Witsman. Witsman was then a detective in the Special Investigations Unit in the office of the sheriff of Cook county. The unit was headed by Chief Investigator Richard Cain. Witsman attached the apparatus to each man, asked and twice repeated a list of questions, recorded the answers, removed each man's chart from the machine and handed it to Montagna. One of the questions was whether the man had given truthful information to a law enforcement agency.

Montagna delivered the charts to Daddano. A day later, in Daddano's presence, Montagna told the men they had passed.

Witsman testified that Cain had given him a list of the questions, told him to go to the motel, to give the tests to men who would be produced by a man he would meet there, not to interpret the charts, but to give them to the same man.

Some time later Cain directed Witsman to go to another address and administer similar tests to others. At the address was Montagna's home, and the men tested were the De Legges and Mendola. Months later Witsman was disturbed by a news story which contained Schang's picture and by recognizing Schang as one of the men he had tested. Witsman telephoned Cain. Cain said not to worry about the charts because he had flushed them down the toilet.

Although no witness except Witsman described Cain's participation, the jury could properly infer from the circumstances, as it did, that Daddano must have explained his problem to Cain and that Cain had arranged the tests and interpreted the charts with knowledge of the circumstances and their purpose.

La Joy, Schang, D'Argento, and Tomaszek were tried for the bank robbery in 1965 and convicted. Some of them had testified in their own behalf, giving exculpatory and now admittedly perjured testimony. They received substantial sentences. La Joy, Schang, and D'Argento have been convicted of or charged with other offenses and face possible additional sentences. At various times in 1967 these three decided to give information to the government. Probably their cooperation with the government will help them, and they have much at stake. The government has given money to the families of La Joy and D'Argento in return for information received. In 1967 the indictment now under consideration was returned against the De Legges, Montagna,Daddano, and Cain. Mendola is deceased. The trial now under review occurred in September, 1968, and La Joy, Schang, and D'Argento testified to many of the facts set forth in the foregoing narrative.

There can be no real challenge to the sufficiency of the evidence to support the facts just narrated. The story is, indeed, unusual. But the testimony was not inherently incredible. The jury was fully informed of the circumstances which bore upon the credibility of La Joy, D'Argento, and Schang, including their interest in recognition by the government of their cooperation, but the jury believed them. The jury also believed Witsman, and drew inferences as to Cain's guilty knowledge and intent which the jury was entitled to draw. We do not consider it necessary to set forth a detailed analysis of the supporting evidence.

We proceed to deal with the various attacks upon the indictment as matters of law, the claims that the facts narrated do not add up to guilt of the offenses charged, and claims of error in procedure and at trial.

Count 2 charged the De Legges with bank robbery² "together with" the other five participants. It further charged that they put lives in jeopardy by the use of dangerous weapons,³ but the jury found them guilty only of the lesser offense. Counsel challenges the sufficiency of the evidence to support the verdict, apparently on the basis that what the De Legges did was short of "participation." De Legge, Sr.'s standing by in his car to protect the getaway, though he failed, and De Legge, Jr.'s telephone call to the police would qualify, it seems, as "participation", if that is meaningful and important, but the government proved other acts of aiding, abetting, and counselling the offense, making the De Legges punishable as principals under 18 U.S.C. § 2 in any event.

I. Challenges to the indictment.

Counts 1 (conspiracy), 3 (accessory after the fact), and 4 (misprision of felony) charged Daddano, Montagna, and Cain. (Varelli, not on trial, was also charged in counts 1 and 4.)

Count 4⁴ charged that defendants, having knowledge of the actual commission of the bank robbery by the seven participants, "concealed, and did not as soon as possible make known the same to some judge or other person in civil authority under the United States, * * *." After completing...