United States v. Mancino

• Decision Date: 16 November 1972
• Docket Number: No. 72-1297.,72-1297.
• Citation: 468 F.2d 1350
• Parties: UNITED STATES of America, Appellee, v. John Frank MANCINO, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

468 F.2d 1350 (1972)

UNITED STATES of America, Appellee, v. John Frank MANCINO, Appellant.

No. 72-1297.

United States Court of Appeals, Eighth Circuit.

Submitted October 18, 1972.

Decided November 16, 1972.

Ronald I. Meshbesher, Minneapolis, Minn., for appellant.

Joseph T. Walbran, Asst. U. S. Atty., Minneapolis, Minn., for appellee.

Before LARAMORE, United States Court of Claims Senior Judge and HEANEY and ROSS, Circuit Judges.

ROSS, Circuit Judge.

This is an appeal from a judgment of conviction pursuant to a three-count indictment charging John Frank Mancino with: 1) aiding, counseling, procuring, inducing and causing, from November 27 to December 7, 1971, Bernard T. Malland to make two firearm silencers without having filed a written application with the Secretary of the Treasury or his delegate, in violation of 26 U.S.C. §§ 5861(f) and 5871; 2) aiding, counseling, inducing, procuring, and causing, on December 7, 1971, Bernard T. Malland, to transfer the silencers mentioned above without having paid a transfer tax in violation of 26 U.S.C. §§ 5861(e) and 5871; and, 3) conspiring between November 27 and December 7, 1971, with Bernard T. Malland and George Harding Bryant, and other unknown persons, to make and transfer the above-mentioned silencers in violation of 18 U.S.C. § 371. Mancino was convicted by a jury of all three counts. We affirm the judgment of conviction.

The principal issue on appeal is whether the trial court committed prejudicial error when it admitted into evidence testimony by government agents relating to certain out of court declarations made by another government agent-informer, which declarations were made outside the presence of Mancino; especially since the government agent-informer was not produced as a witness.

The Government's case revolved around an alleged conspiracy between Bryant, Malland, and Mancino. Mancino purportedly wanted to buy two silencers; Malland agreed to make them, and Bryant agreed to supply the pistols. Bryant was a government agent-informer who participated in the activities of the alleged conspiracy at the Government's direction. Thus, while there was a conspiracy between Malland and Mancino justifying the use of the co-conspirators' exception to the hearsay rule with regard to statements made by them, Mancino argues that Bryant was not a co-conspirator because as a government agent he lacked the requisite criminal intent; therefore, Mancino argues, out of court declarations by Bryant, made when Mancino was not present, and reported by government agents,¹ constitute impermissible hearsay evidence not cognizable under the co-conspirators' exception to the hearsay rule. Mancino points to the following testimony:

1. Flickinger testified that he overheard Bryant tell Malland that Mancino was looking for him.

2. Flickinger and Green testified that they heard Bryant say to Malland, "these are the guns that John Mancino wants the silencers fitted to."

3. Flickinger and Green testified that they heard Bryant speak to someone on the phone whom they thought was Malland. The substance of the conversation was that Mancino was waiting at Suzie\'s Bar.

4. Flickinger testified that he heard Bryant speak to someone on the phone he thought was Mancino. The substance of the conversation was that the silencers were ready and they would be at the 622 Club in an hour or so 5. Flickinger and Foster testified that they heard Bryant tell Donna Peterson that Bryant had recently seen Mancino, that Mancino was angry because he heard the police were at the 622 Club, and thus, Mancino would not come to pick up the silencers.

6. Flickinger testified that Bryant told him that Mancino had earlier attempted to obtain silencers.

7. Malland testified that about a month before the time period relevant here that the subject of silencers had come up in a conversation with Bryant.

We have concluded that, even assuming that the testimony Mancino objects to was impermissible hearsay because Bryant was not a co-conspirator and because the questioned statements were made outside of Mancino's presence, a question we do not here decide, the admission of the questioned evidence was harmless beyond a reasonable doubt. See generally Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 21 (1972); Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 22-24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1966); Kotteakos v. United States, 328 U.S. 750, 763-765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1945); United States v. Yow, 465 F.2d 1328 (8th Cir. 1972); Smith v. United States, 460 F.2d 1236, 1237 (8th Cir. 1972); Ricehill v. Brewer, 459 F.2d 537, 540 (8th Cir. 1972); Kaufman v. United States, 453 F.2d 798, 803-804 (8th Cir. 1971). A recent statement by the Supreme Court indicates that this Court must determine whether there is a "reasonable doubt that the jury at petitioner's . . . trial would have reached the same verdict without hearing the tainted testimony." Milton v. Wainwright, 407 U.S. 371, 377, 92 S.Ct. 2174, 2178 (1972). In making such a determination, this Court need not close its eyes to the reality of overwhelming evidence of guilt fairly established by use of evidence not challenged. Id. at 377-378, 92 S.Ct. 2174.

In this case, the Government sought to prove: that Mancino entered the 622 Club, a tavern, and met with Bernard "Red" Malland and George Bryant, a bartender at the 622 Club and also a government informer; that Mancino asked Malland to make two silencers; that Malland agreed, but found the pistol Mancino offered unsuitable for the purpose of mounting silencers; that Mancino then asked Bryant to procure two .22 automatic pistols for Malland and that Bryant agreed; that Mancino told Bryant to keep in touch with Malland and call Mancino when the silencers were ready and Mancino would then pick up the guns at the 622 Club; that during the next week Bryant gave two pistols to Malland who delivered the guns and the silencers to Mancino; that Mancino test fired them and the silencers did not work properly; that Malland left to repair the silencers, leaving the pistols with Bryant at the 622 Club; and that Malland repaired the silencers and delivered them to Bryant at the 622 Club.

The evidence which was used to prove these allegations and which is not at issue came primarily from the testimony of Flickinger and Malland. Flickinger testified that while working as an undercover agent for the United States Treasury Department, Alcohol, Tobacco, Tax and Firearms Division, he observed Mancino enter the 622 Club at about 12:00 noon on November 27, 1971. Flickinger observed Mancino speak with George Bryant, the bartender — an agent informer. Bryant said that Malland would be in the bar later that day and Mancino indicated that he would be back in about an hour and if Malland appeared, Mancino would meet with him. Later that day Mancino came back to the 622 Club and Bryant introduced Mancino to a man who was later identified as Malland. Mancino asked Malland if he could make silencers and Malland indicated that he could. Mancino then drew a pistol from his coat and asked Malland if the gun could be fitted with a silencer. Malland indicated that the pistol was not suitable and Mancino asked Bryant if he could procure two .22 automatic pistols. Bryant indicated that he could. Mancino then said, "Fine you locate the pistols and supply them to Red." (Malland) Mancino then asked Malland how much the silencers would cost and Malland replied that the price was $150 each. Mancino objected saying, "I want a couple of cheapies or throwaway packages because they are going to be a little hot after this job. I don't want them found." He further stated, "$300 is a little high to pay for two silencers." At that point Malland stated that he would make the two silencers for $300, that he would keep in touch with Bryant, that when Bryant had the two .22 automatic pistols ready for delivery he would pick them up and have the silencers fitted to them. Malland then left. Mancino told Bryant to "pick up these two firearms, and keep in touch with Red. As soon as he gets the silencers fitted, let me know, and we can pick them up." Mancino indicated that he would pick up the silencers and the guns at the 622 Club.

On December 2, 1971, Flickinger and undercover agent Green observed Malland enter the 622 Club and saw Bryant give Malland what appeared to be two .22 automatic pistols.

On December 3, 1971, Flickinger and agent Green, observed Bryant on the telephone. Bryant said something and Flickinger and Green then went to a bar owned by Mancino. The agents observed Malland and another man leave Mancino's bar.

On December 5, 1971, Flickinger saw...