United States v. Falcone, No. 193.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtL. HAND, CHASE, and CLARK, Circuit
Citation109 F.2d 579
Docket NumberNo. 193.
Decision Date13 February 1940
PartiesUNITED STATES v. FALCONE et al.

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.

109 F.2d 580

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 Two other defendants, Milozzo and Melito, have withdrawn their appeals.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",...

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145 practice notes
  • U.S. v. Brandon, Nos. 92-1447 and 92-1465
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 7, 1993
    ...given Reisch's greater involvement in the scheme. We reject, moreover, Reisch's application of the holding in United States v. Falcone, 109 F.2d 579, 581 (2d Cir.1940) (holding the mere delivery of goods or services to a conspiracy does not constitute membership in the conspiracy), to this ......
  • U.S. v. Burgos, Nos. 93-5899
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • August 23, 1996
    ...to apply a conspiracy conviction to individuals whose most heinous crime is choosing the wrong friends"); United States v. Falcone, 109 F.2d 579, 581 (2d Cir.) (Hand, J.) ("so many prosecutors seek to sweep within the drag-net of conspiracy all those who have been associated in any degree w......
  • United States v. Spock, No. 7205-7208.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • July 11, 1969
    ...v. United States, 1949, 336 U.S. 440, 445, 69 S.Ct. 716, 93 L.Ed. 790 (Jackson, J., concurring); United States v. Falcone, 2 Cir., 1940, 109 F.2d 579, 581, aff'd, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128, springs largely from the government's overenthusiastic use of some of the procedures o......
  • United States v. Deleon, No. CR 15-4268 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • June 30, 2017
    ...Alonso points to a conspiracy case, Krulewitch v. United States, 69 S. Ct. 716, 719-20 n.2 (1949)(discussing United States v. Falcone, 109 F.2d 579, 581 (2d Cir. 1940)), for the proposition that aco-defendant in a conspiracy trial occupies an uneasy seat. There generally will be evidence of......
  • Request a trial to view additional results
145 cases
  • U.S. v. Brandon, Nos. 92-1447 and 92-1465
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 7, 1993
    ...given Reisch's greater involvement in the scheme. We reject, moreover, Reisch's application of the holding in United States v. Falcone, 109 F.2d 579, 581 (2d Cir.1940) (holding the mere delivery of goods or services to a conspiracy does not constitute membership in the conspiracy), to this ......
  • U.S. v. Burgos, Nos. 93-5899
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • August 23, 1996
    ...to apply a conspiracy conviction to individuals whose most heinous crime is choosing the wrong friends"); United States v. Falcone, 109 F.2d 579, 581 (2d Cir.) (Hand, J.) ("so many prosecutors seek to sweep within the drag-net of conspiracy all those who have been associated in any degree w......
  • United States v. Spock, No. 7205-7208.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • July 11, 1969
    ...v. United States, 1949, 336 U.S. 440, 445, 69 S.Ct. 716, 93 L.Ed. 790 (Jackson, J., concurring); United States v. Falcone, 2 Cir., 1940, 109 F.2d 579, 581, aff'd, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128, springs largely from the government's overenthusiastic use of some of the procedures o......
  • United States v. Deleon, No. CR 15-4268 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • June 30, 2017
    ...Alonso points to a conspiracy case, Krulewitch v. United States, 69 S. Ct. 716, 719-20 n.2 (1949)(discussing United States v. Falcone, 109 F.2d 579, 581 (2d Cir. 1940)), for the proposition that aco-defendant in a conspiracy trial occupies an uneasy seat. There generally will be evidence of......
  • Request a trial to view additional results

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