United States v. DiFronzo, 14507

Decision Date27 May 1965
Docket NumberNo. 14507,14508.,14507
Citation345 F.2d 383
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Peter DiFRONZO and Medo Calzavara, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Anthony DADDINO, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

George F. Callaghan, Frank W. Oliver, Richard E. Gorman, Chicago, Ill., for appellants.

Edward V. Hanrahan, U. S. Atty., John Peter Lulinski, John Powers Crowley, James M. Bailey, Asst. U. S. Attys., Chicago, Ill., for appellee.

Before HASTINGS, Chief Judge, and CASTLE and SWYGERT, Circuit Judges.

CASTLE, Circuit Judge.

The defendants, Peter DiFronzo, Medo Calzavara, and Anthony Daddino, were convicted, after a jury trial, on both counts of a two-count indictment which charged the interstate transportation of merchandise known to have been stolen, and conspiracy to so transport such merchandise, in violation of 18 U.S.C.A. § 2314 and § 371, respectively. Each was sentenced to a term of ten years on the substantive count and to a term of five years on the conspiracy count, the sentences to run concurrently.

Without reciting the evidence in detail it is sufficient for the purpose of the issues presented by the defendants' appeals to observe that the record reveals that on April 29, 1961, certain trailers containing a large quantity of cigarettes, razor blades, and hosiery were stolen from the premises of a grocery warehouse in Forest View, Illinois, and during the next few days there was concerted action on the part of the defendants in the transportation of the stolen merchandise. On the morning following the robbery the stolen merchandise was brought to the farm premises of the defendant Calzavara, near Grayslake, Illinois, and placed in a barn. Portions of the merchandise were thereafter transported to other locations, including one in Wisconsin.

On appeal all of the defendants contend the District Court erred in permitting the jury to separate after it had commenced its deliberation. But the record discloses that the trial court counsel for each of the defendants agreed to the procedure outlined and followed by the trial judge in this respect.1 The defendants are in no position to claim error in this connection.

Defendants DiFronzo and Daddino urge that the trial court erred in overruling their respective motions for a severance. Such motions were made toward the conclusion of the trial after counsel for Calzavara during the cross-examination of a government witness elicited from the witness that Calzavara had told him that Calzavara's participation in the events involving the transportation of the stolen merchandise was produced by threats against his life by persons not identified. But the fact that a co-defendant states that his participation was caused by threats by a person or persons unknown and unidentified is not a basis for a severance. It evidences no demonstrable prejudice to any of the other co-defendants.

DiFronzo additionally urges that the evidence is insufficient to support his conviction on either count. From our examination of the record, and we must view the evidence and the reasonable inferences which may be drawn therefrom in the light most favorable to the government (Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680), we are satisfied that the evidence warrants the conclusion, implicit in the jury's verdict, that DiFronzo participated in both the substantive and the conspiratorial offenses.

Daddino makes the further contention that the court erred in declaring a mistrial and subsequently denying his plea in bar asserting former jeopardy. The trial commenced on September 12, 1963. On September 13, 1963, after three government witnesses had testified, and the fourth was on the stand, the noon recess was taken. An altercation took place between the prosecutor and counsel for one of the defendants. It involved the attempt of the prosecutor to regain possession of material tendered to defense counsel pursuant to a Section 35002 request. Eight of the jurors witnessed the episode. Defendant Calzavara moved for a mistrial based on the incident. The court interrogated the jurors, individually, in camera. Although the court's "ultimate impression" was that the episode would not in fact influence the jurors he concluded that from the point of view of all concerned it would be better to proceed to try the case before another jury. Accordingly, he withdrew a juror and declared a mistrial. Daddino had not joined in the motion for a mistrial but he made no objection thereto. No inquiry was made as to the position of Daddino in the matter. The trial at which the convictions resulted commenced after Daddino's plea of former jeopardy was denied.

It is evident from the record that the concern of the trial judge was to secure for the defendants a fair trial before an impartial jury unaffected by whatever reaction, conscious or unconscious, the incident might have engendered in the minds of the jurors who witnessed it. The rationale of Gori v. United States, 367 U.S. 364, 368, 81 S.Ct. 1523, 1526, 6 L.Ed.2d 901, is applicable here. It was there pointed out:

"Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant\'s consent and even over his objection, and he may be retried consistently with the Fifth Amendment. Simmons v. United States, 142 U.S. 148 12 S.Ct. 171, 35 L.Ed. 968; Logan v. United States, 144 U.S. 263 12 S.Ct. 617, 36 L.Ed. 429; Dreyer v. People of State of Illinois, 187 U.S. 71, 85-86 23 S.Ct. 28, 47 L.Ed. 79. It is also clear that `This Court has long favored the rule of discretion in the trial judge to declare a mistrial and to require another panel to try the defendant if the ends of justice will be best served * * *,\' Brock v. State of North Carolina, 344 U.S. 424, 427 73 S.Ct. 349, 97 L.Ed. 456, and that we have consistently declined to scrutinize with sharp surveillance the exercise of that discretion."

The admonitions expressed in Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100, relied upon by the defendant, do not in our judgment serve to invalidate the teaching of Gori. See United States v. Tateo, 377 U.S. 463, 467, 84 S.Ct. 1587, 12 L.Ed.2d 448. We perceive no basis in the instant case upon which to attribute error to what appears to be an informed exercise of discretion on the part of the trial judge.

Calzavara contends that the District Court erred in not dismissing the indictment as to him on the grounds that it is identical to a prior indictment which was returned by a federal grand jury in Milwaukee, Wisconsin, but was dismissed on the ground that the defendant...

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    ...on the case of United States v. DiGrazia, 213 F.Supp. 232, 234 (N.D.Ill., 1963), aff'd on other grounds sub nom. United States v. DiFronzo, 345 F.2d 383 (C.A. 7, 1965). However, the record before me makes it apparent that Thompson was subpoenaed as a witness to bring before the Grand Jury c......
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    ...much healthier if the defendant White's several motions for a severance and for a mistrial had been allowed. Compare United States v. DiFronzo, 345 F.2d 383, 385 (7th Cir.), cert. den., 382 U.S. 829, 86 S.Ct. 67, 15 L.Ed.2d 74 (1965). This, in my opinion, comes very close to reversible erro......
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