United States v. Di Pietroantonio, No. 297

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtLUMBARD, , and WATERMAN and FRIENDLY, Circuit
Citation289 F.2d 122
PartiesUNITED STATES of America, Appellee, v. Rinaldo Dominic DI PIETROANTONIO, Appellant.
Decision Date17 April 1961
Docket NumberDocket 26583.,No. 297

289 F.2d 122 (1961)

UNITED STATES of America, Appellee,
v.
Rinaldo Dominic DI PIETROANTONIO, Appellant.

No. 297, Docket 26583.

United States Court of Appeals Second Circuit.

Argued March 8, 1961.

Decided April 17, 1961.


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.

LUMBARD, Chief Judge.

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

289 F.2d 123
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...

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11 practice notes
  • United States v. Tropiano, No. 702-704
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 26 Noviembre 1969
    ...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 States, 355 U.S......
  • State v. Rondeau, No. 14–048
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 18 Noviembre 2016
    ...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 statuto......
  • State v. Rondeau, No. 2014-048
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 18 Noviembre 2016
    ...in Count Two was merely surplus language notPage 26 necessary 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 statutory ......
  • U.S. v. Roya, No. 77-1401
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 14 Abril 1978
    ...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 unanim......
  • Request a trial to view additional results
11 cases
  • United States v. Tropiano, No. 702-704
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 26 Noviembre 1969
    ...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 States, 355 U.S......
  • State v. Rondeau, No. 14–048
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 18 Noviembre 2016
    ...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 statuto......
  • State v. Rondeau, No. 2014-048
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 18 Noviembre 2016
    ...in Count Two was merely surplus language notPage 26 necessary 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 statutory ......
  • U.S. v. Roya, No. 77-1401
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 14 Abril 1978
    ...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 unanim......
  • Request a trial to view additional results

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