United States v. DiLorenzo

• Decision Date: 14 July 1970
• Docket Number: Docket 34420.,No. 834,834
• Citation: 429 F.2d 216
• Parties: UNITED STATES of America, Appellee, v. Anthony DiLORENZO, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

429 F.2d 216 (1970)

UNITED STATES of America, Appellee, v. Anthony DiLORENZO, Appellant.

No. 834, Docket 34420.

United States Court of Appeals, Second Circuit.

Argued June 2, 1970.

Decided July 14, 1970.

Raymond W. Bergan, Washington, D. C. (Williams & Connolly, Washington, D. C., Edward Bennett Williams, Washington, D. C., of counsel; Lipsitz, Green, Fahringer, Roll, Schuller & Jones, Buffalo, N. Y., Herald Price Fahringer, Buffalo, N. Y., of counsel), for appellant.

Jack Kaplan, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty. for the Southern District of New York, William B. Gray, Asst. U. S. Atty., of counsel), for appellee.

Before LUMBARD, Chief Judge, SMITH and KAUFMAN, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

Anthony DiLorenzo was convicted on trial to the jury in the United States District Court for the Southern District of New York, Walter R. Mansfield, Judge, on charges of interstate transportation of twenty-six 100-share certificates of common stock of International Business Machines stolen in the summer of 1966 from the New York brokerage offices of Hayden, Stone & Co., and conspiracy, in violation of 18 U.S.C. §§ 2314 and 371, and appeals. We find no error and affirm the judgment.

An insurance company, Bankers and Telephone Employees Insurance Co., controlled by one Von Zamft, was suspended in 1966 by the Pennsylvania Insurance Department and was in need of additional capital in excess of one million dollars by January 25, 1967 to resume operations. DiLorenzo agreed to furnish Von Zamft, for a total of $140,000, one million dollars worth of stolen IBM stock. He enlisted one Izzi to carry the stock to Gettysburg, Pennsylvania and after exhibit to the Insurance Department, it was lodged at a bank in Harrisburg. It was later discovered to be part of the stock stolen from Hayden, Stone. Izzi, Von Zamft and DiLorenzo were indicted, Izzi for the interstate transportation of stolen securities, Von Zamft and DiLorenzo for the transportation and conspiracy. They were tried separately before Judge Mansfield and juries in the Southern District of New York, convicted and sentenced, Izzi to imprisonment for eight years, Von Zamft to three years (Von Zamft was not sentenced until January 12, 1970, subsequent to his testimony as a government witness in DiLorenzo's trial) and DiLorenzo to concurrent terms of ten and five years. Izzi's conviction was affirmed on appeal, 427 F.2d 293 (2d Cir. 1970), cert denied, 399 U.S. 928, 90 S.Ct. 2244, 26 L.Ed.2d 794 (June 29, 1970). Von Zamft's appeal is pending; Von Zamft was the principal witness for the government in the case against DiLorenzo.

Appellant concedes that the evidence, if credited, was sufficient to support the verdict and bases his appeal on five claims of error. DiLorenzo's principal contentions concern the admission into evidence of admissions made by him on two occasions, both prior to indictment. Other asserted errors are (1) the trial court's ruling that two of appellant's prior convictions could be utilized by the government in cross-examination if he were to testify; (2) the admissibility of testimony as to a prior consistent statement by Von Zamft; (3) the propriety of Judge Mansfield presiding in this case after doing so in the companion cases; and (4) resentencing of the appellant.

Appellant asserts that the receipt in evidence of admissions he made on two occasions prior to indictment violated his fourth, fifth and sixth amendment rights; we do not agree. On May 7, 1967, FBI Agent Knox, searching for Izzi, who was a fugitive at the time, interviewed appellant at appellant's residence and was told that appellant and Izzi were close friends and that the appellant occasionally received telephone messages from Izzi at appellant's girl friend's (Miss McCarran) apartment. Agent Knox testified concerning this acknowledgement, which may be considered an admission since it was shown that Izzi called Miss McCarran's apartment when Izzi was in Gettysburg delivering the stolen securities. The second occasion on which appellant made certain admissions was June 5, 1969 when appellant and Von Zamft conversed in the offices of DiLorenzo's attorney, Markowitz; this conversation was recorded by a recording device worn by Von Zamft, and part of the tape transcript incriminating appellant was introduced into evidence (hereinafter the Von Zamft conversation). The indictment was returned on July 30, 1969.

Appellant's contention concerning his admissions in the 1967 interview by Agent Knox is that appellant should have been informed he was the target of an investigation and that since he was not, he failed to realize that it might have been appropriate for him to exercise his rights of silence and to counsel. This argument is based primarily on Agent Knox's personal suspicions and thoughts at that time regarding appellant's involvement in the interstate transportation of the securities. However, Agent Knox testified that he did not go to appellant's home with the thought that he might be charging appellant with involvement in the theft of the securities, but rather to attempt to locate Izzi; the warning given by Agent Knox when he was leaving was the agent's standard warning to persons such as appellant of possible consequences if he harboured the fugitive Izzi. Knox's own suspicions of DiLorenzo's possible involvement were not sufficient to cast DiLorenzo as a target of an investigation nor the interview as an accusatory interview or as custodial interrogation. Under the circumstances of this meeting, two years prior to indictment and for the purpose of attempting to locate Izzi, the government agent was not required to warn appellant of his constitutional rights. See Hoffa v. United States, 385 U.S. 293, 309-310, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).

Appellant's arguments concerning the Von Zamft conversation present more serious questions; appellant claims that the admissions from that conversation which came into evidence violated his fourth, fifth and sixth amendment rights. Appellant contends that the conversation represented an unwarranted intrusion by the government into the attorney-client relationship between attorney Markowitz and himself and that this violated his sixth amendment right to counsel, since prior to the meeting, Von Zamft had met with federal authorities and agreed to cooperate with them. We disagree. At the time of the meeting, DiLorenzo had not been indicted or charged nor had he formally retained Markowitz or any other attorney to conduct his defense. Although the meeting was held in Markowitz's office, it was at appellant's insistence, since it was the only place he considered "safe," and only appellant and Von Zamft were present during the pertinent portion of the taped conversation. In this situation, it cannot be said that the government subverted or interfered with appellant's right to counsel. Cf. Hoffa v. United States, 385 U.S. 293, 304-309, 87 S.Ct. 408 (1966).

DiLorenzo further asserts that his rights under the fourth amendment were violated by the introduction of part of the tape recording transcript of the Von Zamft conversation.¹ But, as in Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963), this was not a case of "eavesdropping" in the proper sense of that term since the government did not use an electronic device to listen to a conversation it could not otherwise have heard; here, as there, the recording device was worn by a government agent (Von Zamft) with his knowledge. The decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L. Ed.2d 576 (1967) did not erode that of Lopez v. United States, supra, since Katz involved electronic surveillance performed without the knowledge of any of the participants in the intercepted conversation. United States v. Kaufer, 406 F.2d 550 (2d Cir.1969), aff'd, 394 U.S. 458, 89 S.Ct. 1223, 22 L.Ed.2d 414 (1969), see United States v. Bennett, 409 F.2d 888 (2d Cir.1969); contra: United States v. White, 405 F.2d 838 (7 Cir.1969), cert. granted, 394 U.S. 957, 89 S.Ct. 1305, 22 L.Ed.2d 559 (1969), restored to calendar for reargument 396 U.S. 1035, 90 S.Ct. 677, 24 L.Ed.2d 679 (1970). Thus, planting the concealed recording device on Von Zamft did not constitute an unconstitutional intrusion upon DiLorenzo's fourth amendment rights.² United States v. Kaufer, supra.

Appellant additionally claims that the introduction of the evidence from the Von Zamft conversation violated his fifth amendment rights since he was not informed that he was a target of the investigation and as a result he failed to realize that it might have been appropriate for him to exercise his right to silence and to counsel. This is the same claim as that made in regard to Agent Knox's interview of appellant in 1967; however, this meeting occurred little more than a month prior to indictment. Although Von Zamft was an informer and was sent to talk with DiLorenzo for the purpose of drawing forth incriminating statements, this meeting did not violate appellant's fifth amendment rights. Even if this were considered interrogation of appellant by Von Zamft, it was not custodial interrogation as in Escobedo v. Illinois, 378 U. S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Nor is there any indication of coercion in this case whatsoever, which was the basis for establishing the Miranda rules for in-custody interrogation. DiLorenzo was free to choose his own confidants, and he chose unwisely. This pre-indictment conversation in an attorney's office with a fellow schemer does not come close to the circumstances in Escobedo or Miranda and does not require like treatment. Nothing in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), Escobedo or Miranda remotely suggests that the government could not use evidence of statements obtained after the date a defendant asserts the...