United States v. Lev

• Decision Date: 23 March 1960
• Docket Number: No. 269,Docket 25999.,269
• Citation: 276 F.2d 605
• Parties: UNITED STATES of America, Appellee, v. William LEV and Benjamin Danis, Defendants-Appellants, and Arthur B. Mandel, Theodore Rider, Joseph Cohen, Robert S. Rosenberg, Giuseppe Battaglia and Domenico Guarna, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

276 F.2d 605 (1960)

UNITED STATES of America, Appellee, v. William LEV and Benjamin Danis, Defendants-Appellants, and Arthur B. Mandel, Theodore Rider, Joseph Cohen, Robert S. Rosenberg, Giuseppe Battaglia and Domenico Guarna, Defendants.

No. 269, Docket 25999.

United States Court of Appeals Second Circuit.

Argued February 11, 1960.

Decided March 23, 1960.

Certiorari Denied June 6, 1960.

Leon B. Savetsky, New York City (Charles Spar, New York City, of counsel), for defendant-appellant Lev.

Henry K. Chapman, New York City (Murray E. Gottesman, on the brief), for defendant-appellant Danis.

Robert B. Fiske, Jr., Asst. U. S. Atty., So. District of New York, New York City (S. Hazard Gillespie, Jr., U. S. Atty., for the So. District of New York and David P. Bicks, Asst. U. S. Atty., New York City, of counsel), for appellee.

Before MOORE, Circuit Judge, and SMITH and HERLANDS, District Judges.

Certiorari Denied June 6, 1960. See 80 S.Ct. 1248.

SMITH, District Judge.

Appellants Lev and Danis, Customs Inspectors of the United States Customs Service, were convicted in the Southern District of New York on trial to the jury, Judge Boldt presiding, of conspiracy with one Guarna, one Battaglia, and others unknown, to defraud the United States of free and incorrupt operation of the Customs Service by smuggling merchandise into the United States. Lev was also convicted on 21 substantive counts of soliciting or receiving bribes or smuggling; Danis on 4 substantive counts, 3 of soliciting or receiving bribes and one of smuggling. Each appellant was sentenced to 3 years imprisonment and $2500 fine on the conspiracy count, and 2 years imprisonment on each of the substantive counts, all sentences of imprisonment to be served concurrently.

The indictment, filed on April 15, 1958, contained 31 counts, charging four separate types of offenses.

Ten counts charged appellants Lev or Danis, together with defendants Giuseppe Battaglia and Domenico Guarna, with smuggling merchandise into the United States in violation of Title 18, Section 545, United States Code. (Counts 3, 5, 7, 10, 12, 15, 18, 20, 22 and 24.) Danis was named in Count 3; Lev was named in the remaining counts. In addition four other former customs inspectors, Theodore Rider, Arthur Mandel, Joseph Cohen and Robert Rosenberg, were named as defendants in Counts 7, 12, 15 and 18, respectively.

Fourteen counts charged the defendant Customs Inspectors with soliciting, demanding and receiving monies and merchandise in consideration of services performed and omitted in connection with the examination of baggage under the Customs laws in violation of Title 18, Section 213, United States Code. (Counts 1, 2, 4, 6, 8, 9, 11, 13, 14, 16, 17, 19, 21, 23.) Danis was named in Counts 1, 2 and 4. Lev was named in Counts 2, 4, 6, 8, 11, 13, 14, 16, 17, 19, 21 and 23. Rider was named in Count 9; Mandel was named in Count 13; Cohen was named in Count 17. Rosenberg was not named in any of these counts.

In addition to the substantive counts, the indictment contained five separate conspiracy counts, each charging a continuing conspiracy to violate the Customs laws through acts of smuggling and bribery in violation of Title 18, Section 371, United States Code (Counts 27-31). Count 27 named as defendants Lev, Danis, Battaglia and Guarna, and as co-conspirators "divers other persons to the Grand Jury unknown." Counts 28 through 31 charged as defendants Rider, Mandel, Cohen and Rosenberg, respectively, each defendant being named alone in a separate count. Each of these four counts charged as co-conspirators Lev, Danis, Battaglia and Guarna and "divers other persons to the Grand Jury unknown."

The remaining two counts, Counts 25 and 26, charged Lev and Mandel, respectively, with receiving, concealing and facilitating the transportation and concealment of a quantity of distilled spirits, knowing the same to have been imported into the United States contrary to law in violation of Title 18, Section 545, United States Code. These counts were severed prior to trial and were subsequently dismissed.

Prior to trial, defendants Mandel, Rider, Rosenberg and Cohen and appellant Danis moved for a severance of their trials from that of appellant Lev. The motion was denied as to Danis and was granted as to the remaining defendants. Also prior to trial, defendants Battaglia and Guarna entered pleas of guilty to all counts in which they were named, and thereafter testified for the Government.

The trial of appellants Lev and Danis began on September 28, 1959 and was concluded on October 24, 1959. Both were found guilty on all counts in which they were named. Immediately following the Lev-Danis trial, defendants Mandel, Rider, Rosenberg and Cohen were tried together before Judge Boldt without a jury. This trial began on October 24, 1959 and was concluded on October 27, 1959. Mandel, Rider and Rosenberg were convicted on the substantive counts in which they were named, and were acquitted on the conspiracy counts. Cohen was acquitted on all counts in which he was named. Lev and Danis appeal.

Battaglia and Guarna were salesmen and importers of neckwear and other merchandise from Italy. Their testimony, if believed, established that in January 1954 Danis proposed an arrangement for smuggling merchandise into New York, the savings in duty to be split 50-50. Lev was brought into the arrangement a few days after its inception, the proposal being repeated to Battaglia and Guarna by Danis in Lev's presence. Gifts of merchandise and payments of money to Danis in Lev's presence were made following the first smuggling operation, of a quantity of samples, in January 1955. Danis then told Battaglia and Guarna that he was being transferred to Idlewild, and that they could bring everything to the airport. From that point on, Lev was the contact at the dock. Lev later, in December 1955, at Guarna's request, arranged for Danis to take care of one Longhi, due to arrive by plane. Longhi's plane was, however, re-routed to Philadelphia. On two occasions shortly thereafter Danis came to Guarna's office and received two or three ties. Thereafter, Inspectors Lev, Rider, Mandel, Cohen, Farber, Goodman and Rosenberg, all passed merchandise of Battaglia and Guarna on the piers without payment of duty, Lev a number of times. Lev, Rider, Mandel and Cohen received payments from Guarna, and Lev received payments ostensibly for Farber, Goodman and Rosenberg.

Danis assigns as error the refusal of the court to rule as a matter of law that he had withdrawn from the conspiracy at the time of his transfer from the docks to Idlewild Airport. The ruling is clearly correct. Not only is there no evidence of an unequivocal act of withdrawal, but there is evidence showing continued willingness to participate in the smuggling by adding the airport as an additional smuggling channel. Battaglia did state that Danis was "out of the picture" because he was already at the airport. This is not conclusive on the question of withdrawal, but was properly left for the jury's consideration along with the other evidence in the case, including the abortive attempt to clear Longhi at the airport, and Danis' continued receipt of ties from Guarna.

Both appellants assign as error the admission against them of the acts and declarations of defendants Mandel, Rider, Cohen and Rosenberg, although Count 27 did not name them as co-conspirators, naming Guarna, Battaglia, Lev and Danis and alleging conspiracy with "divers other persons to the grand jury unknown." Even if the co-defendants cannot properly be termed "other persons unknown" and even if they did not knowingly participate in a conspiracy with Lev and Danis, the proof showed that they acted under instructions given by Lev in the carrying out of the conspiracy, and were therefore agents of the conspirators in the course of the conspiracy, so that their acts and declarations in so carrying out the conspiracy were admissible against the conspirators Lev and Danis. United States v. Miller, 2 Cir., 246 F.2d 486, 490 note 10, certiorari denied 355 U.S. 905, 78 S.Ct. 332, 2 L.Ed.2d 261; United States v. Pugliese, 2 Cir., 153 F.2d 497. 4 Wigmore, Evidence, 3rd Ed., Secs. 1078, 1079.

Counsel for appellant Lev, in cross-examining Battaglia, read questions and answers from Government's Exhibits for Identification 12 and 13. 12 for identification was a statement of Battaglia taken October 16, 1957 at the office of the Supervising Customs Agent; 13 for identification, a supplemental statement of Battaglia taken November 21, 1957 at the same place. The portions of the exhibits read by counsel for Lev from Exhibit 12 for identification were as indicated in Appendix A to this opinion.

Battaglia was cross-examined as to the accuracy and explanation of the quotations. Likewise as to quotations from Exhibit 13 for identification (Appendix B).

Counsel for appellant Danis, in cross-examining Battaglia, read from Exhibit 12 for identification (Appendix C).

On redirect examination, over objection by appellants' counsel, counsel for the government was permitted to make use of Exhibits 12 and 13 for identification (Appendix D).

The rulings of the court permitting the limited use of the extra judicial statements, not in evidence, are clearly correct. It is of course true, as appellants contend, that prior consistent statements are ordinarily not admissible on redirect for the purpose of rehabilitating the credit of a witness. 2 Wigmore, Evidence, 3rd Ed., Sec. 1125, United States v. Toner, 3 Cir., 173 F.2d 140. And a post-conspiratorial statement by a co-conspirator is no part of the conspiracy itself and is not admissible as such against his co-conspirators. Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790. In the case at bar, however, the appellants had used portions of the statements on cross-examination and the questions referring to the portions used by the government over objection were offered...