United States v. Falcone

• Decision Date: 13 February 1940
• Docket Number: No. 193.,193.
• Citation: 109 F.2d 579
• Parties: UNITED STATES v. FALCONE et al.
• Court: U.S. Court of Appeals — Second Circuit

109 F.2d 579 (1940)

UNITED STATES v. FALCONE et al.

No. 193.

Circuit Court of Appeals, Second Circuit.

February 13, 1940.

Daniel H. Prior of Albany, N. Y., for Salvatore Falcone and Joseph Falcone.

Roger O. Baldwin, of Syracuse, N.Y., and Jack J. Danella, of Utica, N.Y., for Alberico.

Stanley Palewski, of Utica, N. Y., for John Nole.

Irving K. Baxter of Utica, N. Y., for Lawrence Grimaldi, Nicholas Nole, Salvatore Graniero, and Frank Soldano.

David D. Joselit, of Syracuse, N. Y., and Ralph L. Emmons, U. S. Atty., for appellee.

Before L. HAND, CHASE, and CLARK, Circuit Judges.

L. HAND, Circuit Judge.

These appeals are from convictions for a conspiracy to operate illicit stills. There were originally sixty-eight defendants, but the appeals before us concern only eight, which may be divided into two groups: one those of the appellants, Salvatore and Joseph Falcone, Alberico, John and Nicholas Nole; the other, of Grimaldi, Graniero and Soldano. Two other defendants, Milozzo and Melito, have withdrawn their appeals. The second group were actual distillers; the first supplied them and other distillers with sugar, yeast, and cans, out of which the alcohol was distilled, or in which it was sold. The evidence disclosed that in the year 1937 and 1938 within a radius of fifty miles from the City of Utica some twenty-two illicit stills had been set up, which were in each case to some extent operated after the same pattern; that is to say, real property was bought or leased, motor cars were registered, and applications for electric and water services were made, all in fictitious names; the equipment and materials were bought from the same persons; and the distillers frequented the same café or saloon, where they talked together. Grimaldi, Graniero and Soldano were all operators of one or more stills; the evidence of their guilt was ample; and they complain only of the manner in which the trial was conducted. We shall reserve their objections till the end, because the most serious matter is as to the sufficiency of the evidence to support the verdict against the others.

The case against Joseph Falcone was that during the year 1937 he sold sugar to a number of grocers in Utica, who in turn sold to the distillers. He was a jobber in Utica, and bought his supply from a New York firm of sugar brokers; between March first and September 14, 1937, he bought 8,600 bags of sugar of 100 pounds each, which he disposed of to three customers: Frank Bonomo & Company, Pauline Aiello, and Alberico and Funicello, all wholesale grocers in Utica. Some of the bags in which this sugar was delivered were later found at the stills, when these were raided by the officials; and Falcone was seen on one occasion assisting in delivering the sugar at Bonomo's warehouse, when a truckload arrived. His business in sugar was far greater while the stills were active than either before they were set up, or after they were seized, and we shall assume that the evidence was enough to charge him with notice that his customers were supplying the distillers. The evidence against Salvatore Falcone went no further than to show in various ways that he helped his brother in purchase of sugar during the period in question; there is really nothing to show that he knew its eventual destination. However, since in the view we take of the law he was equally innocent if he did, in disposing of his case we shall assume that he did know. Alberico was a member of the firm of Alberico and Funicello who, as we have just said, were buyers from Joseph Falcone. Alberico's purchases and sales of sugar also varied with the activity of the stills. In the first three months of 1937, when there were five or six of these operating in or about Utica, his purchases ran up to over a half-million pounds; after they had been raided in April, his business fell off to very little; when they became active again in September, his purchases rose again. A like correspondence, though less exact, was proved for the early part of the year 1938. A jury might also have taken the conversation which he had with one of the distillers, Morreale, as evidence of his knowledge of the kind of business that he was supplying. While the stills were active, Alberico also did a large business in five-gallon cans which he sold direct to the distillers. Many cans sold by him were found at the stills when they were raided. The evidence against Nicholas Nole consisted of his sales of yeast and cans to the distillers. The prosecution proved that in the spring of 1937 he had ordered and received shipments of imported yeast through a forwarding company of which he was the owner; and that in July and August of that year he bought of the Atlantic Yeast Company 8,300 pounds of yeast packed in wrappers, made expressly for the "Acme Yeast Company", a name under which he did business by virtue of a certificate, taken out for him by a cousin. Many of these wrappers were found at several of the stills. The case against John Nole depended upon the assistance which he gave his brother, Nicholas, and upon his being distributor for the National Grain Yeast Company for Utica during the years 1937 and 1938, a number of whose wrappers were found at the stills. Again we shall assume that the Noles knew that Nicholas's customers were illicit distillers.

In the light of all this, it is apparent that the first question is whether the seller of goods, in themselves innocent, becomes a conspirator with — or, what is in substance the same thing, an abettor of — the buyer because he knows that the buyer means to use the goods to commit a crime. That came up a number of times in circuit courts of appeal while the Eighteenth Amendment was in force, and the answer was not entirely uniform. The first case we have found is Pattis v. United States, 9 Cir., 17 F.2d 562, where, although the accused appears to have been in fact more closely connected with the buyer's crime than merely as a seller, the court affirmed a charge to the jury that he was guilty if he merely had notice of the future destination of the goods. That appears to be the settled doctrine in that circuit. Vukich v. United States, 9 Cir., 28 F.2d 666, 669; Borgia v. United States, 9 Cir., 78 F.2d 550, 555. The same is true of the Seventh Circuit. Anstess v. United States, 7 Cir., 22 F.2d 594; Hubinger Company v. United States, 7 Cir., 64 F.2d 772. And of the Sixth. Rudner v. United States, 6 Cir., 281 F.2d 516, 520. The Fifth has, however, held otherwise, though by a divided court, Young v. United States, 5 Cir., 48 F.2d 26. In that case the judges differed because of their interpretation of Edenfield v. United States, 273 U.S. 660, 47 S.Ct. 345, 71 L.Ed. 827, which, on the authority of United States v. Katz, 271 U.S. 354, 46 S.Ct. 513, 70 L.Ed. 986, reversed a conviction upon a count for conspiracy to manufacture liquor without a license. The indictment also contained a count for conspiracy to manufacture liquor contrary to...