United States v. Pagano

• Decision Date: 05 July 1955
• Docket Number: Docket 23549.,No. 336,336
• Citation: 224 F.2d 682
• Parties: UNITED STATES of America, Appellee, v. Pasquale PAGANO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

224 F.2d 682 (1955)

UNITED STATES of America, Appellee, v. Pasquale PAGANO, Defendant-Appellant.

No. 336, Docket 23549.

United States Court of Appeals Second Circuit.

Argued June 9, 1955.

Decided July 5, 1955.

J. Edward Lumbard, U. S. Atty., for the Southern Dist. of New York, New York City (Dennis C. Mahoney, Asst. U. S. Atty., New York City, of counsel), for appellee.

Bernard Tompkins, New York City (Vincent J. Velella, New York City, of counsel), for defendant-appellant.

Before CHASE and MEDINA, Circuit Judges, and RYAN, District Judge.

MEDINA, Circuit Judge.

This case involves another one of those cumulative sentences which we have so often criticized, but which we have no power to reverse in the absence of a finding of error in the conduct of the trial. United States v. Chiarella, 2 Cir., 1950, 184 F.2d 903, 911. Count IV of the indictment charges appellant, one Mauro and others with conspiracy, during the period from June 1 through June 23, 1954, to offer a bribe and to bribe an Internal Revenue employee; Count II charges appellant with the substantive offense of offering a bribe on June 22, 1954; and Count III charges appellant and Mauro with the substantive offense of paying a bribe on June 23, 1954. Mauro pleaded guilty and testified for the government. The jury found appellant guilty on all counts, and the court imposed the maximum sentence of five years for the conspiracy and two maximum sentences of three years each on the substantive charges, to run concurrently, or eight years in all. As will appear shortly, "the counts are merely variants of a single criminal transaction"; and these cumulative sentences have been imposed in the very teeth of our repeated admonitions. We are accordingly required to direct a new trial, "unless the whole trial was conducted with the most scrupulous exactness." Amendola v. United States, 2 Cir., 1927, 17 F. 2d 529, 530.

In May of 1954 Frank P. McSweeney, who died before the trial, was a Special Agent of the Intelligence Division of the Internal Revenue Service, and his superiors assigned him to investigate the income tax liability of appellant, then a business agent for Mason Tenders Local No. 59, International Hod Carriers Union, A. F. of L. Having received a letter asking him to appear at the offices of the Internal Revenue Service at 253 Broadway, New York City, appellant went there on June 1, 1954 and was questioned by McSweeney. When the questions turned to certain trips to Europe in 1951 appellant terminated the interview and left. Shortly thereafter, according to appellant's testimony he mentioned his "problem" to his uncle John Pagano and to his uncle's friend Puppy, who recalled that Mauro, who was in fact a file clerk in the Internal Revenue Service at 253 Broadway, "works for the Internal Revenue." The upshot was that the three, appellant, the uncle and Puppy, met Mauro on Third Avenue and 116th Street in New York City, where Puppy introduced Mauro to the others and Mauro was shown the letter requesting appellant's appearance and he promised to get in touch with McSweeney, which he did.

On June 22, 1954, appellant had a conversation with McSweeney in conference room 317 at the office of the Internal Revenue Intelligence Division at 253 Broadway. Inspector John J. O'Neill and Inspector Howard T. Moran, having installed a listening device, were in the next room, and each of them testified that, after certain preliminary observations about the information appellant would be required to furnish relative to his net worth and his trips to Europe, appellant "told McSweeney that he had $500 for him to fix the case, $300 of which would be delivered by Mauro the following day, June 23rd, and $200 * * * within two weeks." The next day Mauro delivered to McSweeney an envelope containing $300 in cash, whereupon he, and later appellant, were arrested and indicted.

There was thus ample evidence to justify the submission of all three counts to the jury. Indeed, the record as a whole quite plainly indicates appellant's guilt. The mere fact that Mauro toned down some of his testimony, and denied that appellant authorized him to give any money to McSweeney, is of no consequence. With the testimony of the two inspectors and the uncontradicted evidence of the delivery of the money to McSweeney as a foundation, the jury were fully justified in fitting the other aspects of the case, including the testimony of Mauro and appellant concerning the various meetings at the corner of Third Avenue and 116th Street, into the pattern of a conspiracy to bribe an Internal Revenue Agent, and in finding that there was both an offer to bribe and the payment of a bribe.

Nor is there any merit in the contention that "it was irrefutably established that on or before June 16th no conspiracy to bribe McSweeney was in existence." A conversation between Mauro and McSweeney on June 16th is alleged in the indictment as an overt act, and the argument is that Mauro's testimony indicates that at that time he had no idea of bribing McSweeney and hence the jury were permitted to find conspiracy on the basis of an alleged overt act which occurred before the conspiracy was formed. But the jury may not have believed this particular part of Mauro's testimony and it does not require an especially acute intelligence to probe through this more or less natural disclaimer and to give weight to the fact that Mauro, a file clerk in the Internal Revenue Service, with no background of personal acquaintance with appellant, should have been selected to go to see McSweeney, that the meetings were held in the street, near Mauro's home, and that Mauro is the man who turned up with the money just as appellant said he would. It is elementary that no direct proof of agreement is essential in these conspiracy cases and that the evidence taken as a whole is the proper basis for the drawing of the necessary inferences. The jury were warranted in finding that the conspiracy was already formed and in operation at the time of Mauro's first visit to McSweeney. Moreover, the court instructed the jury that the question of appellant's participation in any conspiracy must be decided on the basis of what appellant himself did and said, and that the jury could properly consider the declarations and acts of Mauro only after they had first found that there was a conspiracy and that appellant was a participant therein.

In fact the charge was conspicuously clear and in all respects accurate. Couched in language which laymen might easily understand, rather than in words culled from the opinions of appellate courts, which, torn from their context, often form a confusing amalgam, the instructions covered each and every issue with complete fairness and impartiality. The scales were held precisely...