United States v. Halpin

• Decision Date: 08 May 1967
• Docket Number: No. 15533.,15533.
• Citation: 374 F.2d 493
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert HALPIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

374 F.2d 493 (1967)

UNITED STATES of America, Plaintiff-Appellee, v. Robert HALPIN, Defendant-Appellant.

No. 15533.

United States Court of Appeals Seventh Circuit.

January 5, 1967.

Rehearing Denied February 13, 1967.

Certiorari Denied May 8, 1967.

Frank Oliver, Chicago, Ill., for appellant.

James B. Brennan, U. S. Atty., Franklyn M. Gimbel, Asst. U. S. Atty., Milwaukee, Wis., Thomas R. Jones, Asst. U. S. Atty., Milwaukee, Wis., for appellee.

Before KNOCH, KILEY and CUMMINGS, Circuit Judges.

Certiorari Denied May 8, 1967. See 87 S.Ct. 1482.

KILEY, Circuit Judge.

Halpin has appealed from his conviction of knowingly causing the interstate transportation of goods, knowing them to have been taken by fraud, in violation of 18 U.S.C. § 2314 (Count 20 of the indictment), and of conspiring with others to transport interstate and to receive, conceal and dispose of the goods in violation of 18 U.S.C. § 371 and 18 U.S.C. §§ 2314 & 2315 (Count 21). We affirm the conviction.

The twenty-one-count indictment charged Halpin in two counts. The conspiracy count joined Halpin, Bishop, McGuigan, Shubow, Verville, Lichterman and Wigodski. Originally Halpin, Bishop and Verville pleaded guilty. McGuigan was dismissed. Lichterman, Shubow and Wigodski were convicted after not-guilty pleas. All convictions were vacated, those of Lichterman, Shubow and Wigodski because of the knowing use of perjury by the government, those of Halpin, Bishop and Verville when on Verville's original appeal the United States Attorney confessed error in that their guilty pleas were induced by promises of light sentences. Bishop and Verville were re-tried on not-guilty pleas, and were convicted. Verville appealed and this court reversed and remanded. United States v. Verville, 355 F.2d 527 (7th Cir. 1965). Halpin had been granted a severance and his later trial resulted in the conviction before us.

The substance of the overt acts alleged in the indictment is that in July, 1958, Bishop and Verville bought Scanlon's Radio and Music Shop in Milwaukee, leased warehouse space in that city and purchased in the Scanlon name nearly a half-million dollars of merchandise on credit from approximately 1,300 suppliers in several states; that the merchandise was transported to Detroit, where Shubow and Halpin had rented warehouse space and where Shubow paid for unloading of the goods; that Halpin hired employees to work in the Detroit warehouse he had rented; and that Shubow sold the goods to various purchasers. The suppliers of the goods were not paid and the goods were sold at below-invoice prices.

Halpin's first contention is that the government knowingly used false or intentionally misleading testimony at his trial. Government witness Rohe, Shubow's bookkeeper, testified, over objection, that Shubow told him that $3,700 of the proceeds of sales of the goods was paid to "Verville or Halpin." Rohe had testified at the earlier Verville-Bishop trial that the money was paid to Verville. He did not then state it was paid to Verville or Halpin. The same alleged conflict appeared in Rohe's testimony to two other transactions.

Witness Bellware, president of a finance and loan company in Detroit, testified in the Halpin trial that in September or October, 1958, Halpin made "demand" investments of $7,000 in the loan company, using two checks drawn by alleged co-conspirator Shubow. Asked if Verville was involved, Bellware testified that he did not recall "who exactly made the investment," and that it was a "joint investment" but was credited to Halpin's account. On cross-examination, Bellware said he did not recall who handed the checks for the investment to him. Bellware said he had testified in the Verville case that he "believed" Verville invested in the loan company in September or October, 1958. He recalled that at the Verville trial he had not testified that Halpin had "invested" the checks.

Halpin contends his conviction is rendered void by the conduct of the United States Attorney, who prosecuted both the Verville and Halpin cases, in knowingly using false testimony. He does not specify in which trial the testimony was "false." At the Verville trial, Rohe was asked if he recalled how many cash payments were made to Verville "or others," and the district court said, "Limit your question to Mr. Verville." And when asked whether the checks were paid to Verville, Rohe said Mr. Verville and Mr. Halpin represented the Scanlon Company. Accordingly, we are not persuaded that the testimony of Rohe and Bellware in the Halpin trial comes within the rule voiding convictions for the knowing use of perjured testimony.

Halpin states that declarations of alleged co-conspirators were admitted to prove the conspiracy without proof of the conspiracy's existence having already been made, and specifically that the statements of Verville to Bishop and those of Shubow to Rohe out of Halpin's presence were admitted to link Halpin to the conspiracy. But Halpin's claim of error is that the district court, over Halpin's objection, refused to limit these hearsay declarations properly at the time they were admitted, and that the instruction at the end of the testimony was not sufficient protection. He relies upon Lutwak v. United States, 344 U.S. 604, 618-619, 73 S.Ct. 481, 97 L.Ed. 593 (1953), and Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), in support of this claim of error.

There is no requirement that the conspiracy be proved at the trial before the declarations are admitted, and the order in which evidence is received is within the court's discretion. United States v. Sansone, 231 F.2d 887, 893 (2d Cir.), cert. denied, 351 U.S. 987, 76 S.Ct. 1055, 100 L.Ed. 1500 (1956). The requirements are that there must be evidence of the conspiracy and the individual defendant's...