United States v. Di Pietroantonio
| Decision Date | 17 April 1961 |
| Docket Number | Docket 26583.,No. 297,297 |
| Citation | 289 F.2d 122 |
| Parties | UNITED STATES of America, Appellee, v. Rinaldo Dominic DI PIETROANTONIO, Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Henry C. Stone, Asst. U. S. Atty., Hartford, Conn. (Harry W. Hultgren, Jr., U. S. Atty., Hartford, Conn., on the brief), for appellee.
Peter J. Zaccagnino, Jr., Hartford, Conn., for appellant.
Before LUMBARD, Chief Judge, and WATERMAN and FRIENDLY, Circuit Judges.
Appellant, Rinaldo Dominic Di Pietroantonio, seeks reversal of his conviction in the United States District Court for the District of Connecticut on 46 counts of a 47 count indictment charging violation of 18 U.S.C. § 500 which, among other things, forbids falsely altering money orders and counterfeiting material signatures thereon.1 Each of the counts of the indictment alleged that "with intent to defraud" Di Pietroantonio had "falsely altered a Post Office Money Orer by placing thereon fictitious names and addresses of the alleged purchaser and payee."
Di Pietroantonio waived his right to trial by jury, and Judge Smith, sitting as the trier of the facts, found the following: Between the afternoon of December 6 and the morning of December 7, 1959, three hundred and eighty-nine blank United States Postal Money Order forms were stolen from a postal sub-station in Miami, Florida. Forty-seven of these were cashed in January 1960, and upon forty-six of them, those covered by counts 1-5 and 7-47 of the indictment, Di Pietroantonio, with intent to defraud, had written fictitious payees' names in the "pay to" box and fictitious purchasers' names and addresses in the "from" box. On two of these money orders Di Pietroantonio, with intent to defraud, had written "One Hundred"; and on five, including the money order specified in count 6, on which the appellant was found not guilty, he had falsely and with intent to defraud written the first or second endorsements on the back of the forms.
Judge Smith concluded that Di Pietroantonio, by writing the names of fictitious payees and purchasers upon the money orders, had counterfeited material signatures within the meaning of the second paragraph of the statute. He found the appellant guilty with respect to all the money orders as to which he had inserted fictitious names, and sentenced him to five years imprisonment on each count, the sentences to be served concurrently.
The appellant contends that he was convicted of a different crime from that for which he was indicted since the indictment charged him with having "falsely altered" money orders and the trial judge found that he had "counterfeited material signatures." Whether the particular acts committed by the appellant are covered by the second or third paragraphs of 18 U.S.C. § 500, or indeed whether they may not more precisely be described as "falsely making * * * any order * * * purporting to be a money order issued by the Post Office Department," and thus come within the first paragraph of the section, we have no doubt that the acts committed were prohibited. The indictment did not merely charge the appellant with having "falsely altered a Post Office Money Order"; it went on to allege in detail how the alteration was done — "by placing thereon fictitious names and addresses of the alleged purchaser and payee." The indictment fully advised the defendant of the offenses for which he was being tried, and the judgment entered on it would clearly bar any future prosecution for the same offense. Cf. United States v. Debrow, 1953, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92; United States v. Palmiotti, 2 Cir., 1958, 254 F.2d 491. The fact that the draftsman of the indictment, in addition to specifying the particular illegal conduct of the appellant, used a term which appears in one of the paragraphs of the statute should not be understood to limit the government to that paragraph only. Even if the acts committed by the appellant did not amount to the "alteration" intended by the statute, they...
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United States v. Tropiano
...extortion" is obviously surplusage, which the appellants failed to show in any way misled them. Cf., United States v. Di Pietroantonio, 289 F.2d 122, 124 (2d Cir. 1961). Since the sentences on Counts 1 and 4 were concurrent, appellants can hardly claim prejudicial error. Lawn v. United Stat......
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State v. Rondeau
...any age reference in Count Two was merely surplus language not necessary to a charge under § 3253(a)(9). See United States v. Di Pietroantonio , 289 F.2d 122, 124 (2d Cir. 1961) ("An appellant should not be able to reverse a conviction on a claim of variance merely because some surplus stat......
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State v. Rondeau, 2014-048
...any age reference in Count Two was merely surplus language notnecessary to a charge under § 3253(a)(9). See United States v. Di Pietroantonio, 289 F.2d 122, 124 (2nd Cir. 1961) ("An appellant should not be able to reverse a conviction on a claim of variance merely because some surplus statu......
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...132, 67 L.Ed. 301 (1922). Addition of such language, therefore, should not render an indictment defective. United States v. DiPietroantonio, 289 F.2d 122, 124 (2d Cir. 1961). Finally, on this phase of the case, there may well have been some chronological significance in the fact that in a u......