United States v. Palladino, Cr. No. 59-106-M

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Citation203 F. Supp. 35
Docket NumberCr. No. 59-106-M,59-107-M.
PartiesUNITED STATES of America v. PALLADINO et al.
Decision Date13 March 1962

William J. Koen, Asst. U. S. Atty., for plaintiff.

William P. Homans, Jr., Michael A. Malloy, Melvin Norris, Frederick Langone, Boston, for defendant.

WYZANSKI, District Judge.

CHARGE TO THE JURY
A. Introduction

1. You have before you two indictments. (1) 59-106-M charges a conspiracy in violation of 18 U.S.C. § 371. (2) 59-107-M charges 72 substantive offenses in violation of 18 U.S.C. § 1341. Of these 72 the Government moved to dismiss as against the 5 defendants now at bar, those referred to in Counts 1, 24, and 27. And this Court has directed acquittal of the 5 defendants on those 3 counts, and left for your verdicts the other 69 counts.

2. An indictment is a mere charge of crime by a grand jury. It is not evidence. An indictment is only the equivalent of an unproved complaint; nothing more.

3. Throughout the trial each defendant has the benefit of the presumption of innocence. You are to regard him as innocent unless you are persuaded beyond a reasonable doubt that he personally is guilty of the offense with which he is charged. In a criminal case the Government has the burden of proving beyond a reasonable doubt each essential element of a crime against each defendant. Proof beyond a reasonable doubt means proof to a moral certainty. You must be persuaded as you would want to be persuaded about the most important decisions in your own life. If conduct is equally susceptible of an innocent or of a guilty interpretation, you are instructed to regard it as innocent and not to draw from it an inference unfavorable to a defendant.

4. Each count in each indictment is to be treated separately. That is because each count charges a separate crime.

5. Furthermore, with respect to each count, each defendant is to be considered individually. When you report your verdict, you will be asked count by count, individual by individual, is the particular individual with respect to that particular count "guilty or not guilty."

B. The Conspiracy Indictment, 59-106-M

6. An Act of Congress, 18 U.S.C. § 371, defines a criminal conspiracy as follows:

"If two or more persons conspire * * * to commit any offense against the United States * * * and one or more of such persons do any act to effect the object of the conspiracy, each shall be" punished.

7. The first indictment before you, 59-106-M, is under the foregoing section. You are instructed to read the full text of the indictment. For brevity, I shall refer to its essence.

8. The indictment in 59-106-M charges defendants with conspiring to commit an offense against the United States by violating another federal law, the mail fraud statute, 18 U.S.C. § 1341. It says that defendants conspired to execute a scheme to use the mails to defraud a number of sellers of merchandise to A & L Sales Corporation. The alleged scheme was that the defendants would induce each of several sellers to sell his merchandise to A & L in the expectation that the seller would be paid, when the defendants intended that he should not be paid; and that the defendants would use the mails to execute their schemes.

9. With an abundance of words, the indictment recites complicated details as to how the defendants conspired to (1) manage, operate, and control A & L, (2) to cause false statements of the corporate assets to be sent to Dun & Bradstreet and Lyon Furniture Mercantile Agency, (3) to inform sellers of merchandise of Dun & Bradstreet and Lyon's credit information, (4) to receive merchandise from sellers, (5) to resell the merchandise, and (6) not to pay the sellers. This profuse detail may or may not help you recall the testimony, but the Government is not required to prove all of it.

10. What the Government must prove beyond a reasonable doubt against a particular defendant named in indictment 59-106-M before you may find him guilty are each of these four elements:

(1) he and at least one other person jointly conspired to do acts which, if those acts were completed, would violate the federal mail fraud statute;

(2) he himself knew that the purpose of the conspiracy which he joined was to defraud sellers of merchandise to A & L;

(3) he himself intended that to carry out the foregoing purpose, someone acting for the conspirators would use the mails; and

(4) he or someone acting for the conspiracy actually did at least one of the 15 overt acts enumerated on pages 6 through 8 of the indictment.

It is appropriate to say something of each of the foregoing four elements.

11. To show the first element, the Government must prove that the particular defendant conspired. One person cannot by himself conspire. It takes at least 2 persons to conspire. To conspire is to agree to share an unlawful purpose. Two people may share an unlawful purpose without entering a formal or a written agreement. It is sufficient if their agreement is shown by conduct, by a wink or a nod, by a silent understanding to share a purpose to violate the law. In this particular case the Government has alleged a conspiracy of a particular kind, a conspiracy to violate the federal mail fraud statute. Therefore, the Government must prove that the particular defendant and at least one other person shared a purpose to do acts which would, if completed, violate the federal mail fraud statute. This does not mean that they must know the text or legal meaning of the mail fraud statute. It is enough if they have the joint purpose to do acts which are forbidden by the mail fraud statute, even though they themselves never heard of that statute.

12. To show the second element, the Government must prove that the particular defendant had knowledge (not a mere suspicion) that the purpose of the conspiracy was to defraud sellers of merchandise to A & L. If a defendant knows that the purpose of a conspiracy is to induce a seller to supply on credit merchandise to A & L, which, at the time A & L ordered the merchandise, A & L did not intend to pay for, then that defendant had the guilty knowledge. The fact that A & L did not pay for merchandise is relevant but not by itself determinative; because it might happen that a buyer in good faith, and with the expectation of payment, ordered merchandise for which, contrary to his expectation, he could not, because of unforeseen circumstances, pay. To determine whether a defendant had a purpose that A & L should not pay for the merchandise it is relevant to consider what he knew about the cash and other assets of A & L, what he knew about the volume of goods being ordered from all sellers, what he knew about how A & L disposed of goods which the company had previously ordered, and what he knew about A & L's capacity to pay and about A & L's practice of making payment. From all the surrounding circumstances, the Government must prove that a particular defendant knew that there was a scheme that sellers who shipped on credit would not be paid as promised.

13. To show the third element, the Government must prove that the particular defendant had an intent that the conspirators or someone acting for them would use the mail to carry out the scheme. The Government does not have to show that the particular defendant foresaw some particular use of the mail. It is enough if the Government proves that the particular defendant had the intent that someone acting for the conspiracy would use the mails to send a letter to a prospective seller or to a credit agency which would prepare data for use by a prospective seller.

14. To show the fourth element, the Government must prove that he or someone acting for the conspirators, not necessarily himself a defendant, performed at least one, not necessarily more than one, of the overt acts mentioned on pages 6 through 8 of the indictment. The Government need not prove all the overt acts. The Government need not prove that the conspiracy was successful. The Government need not prove that any seller or other person was in fact defrauded. It is sufficient if the Government proves that (there being a conspiracy, and the particular defendant knowing its purpose, and intending that the conspiracy should include a use of the mails), someone acting for the conspiracy took a material step, an overt act, toward accomplishing the purposes of the conspiracy.

15. From what has been said it follows that the Government's task in connection with indictment 59-106-M is to prove that persons with knowledge of an intent to defraud and of an intent to use the mails took a decisive step in the direction of fulfilling an unlawful scheme. If the Government does so prove, then the Government is entitled to prevail whether or not the Government can also prove that on the second indictment, 59-107-M, the defendants actually completed their unlawful scheme. Persons may be guilty of conspiracy even if their conspiracy is thwarted. Also persons may be guilty of conspiracy even if their conspiracy succeeds and they complete certain "substantive" crimes.

C. The Substantive Indictment, 59-107-M

16. An Act of Congress, 18 U.S.C. § 1341, defines the substantive crime of use of the mails to defraud as follows:

"Whoever, having devised or intending to devise any scheme * * to defraud, or for obtaining * * * property by means of false or fraudulent pretenses, representations, or promises * * * for the purpose of executing such scheme * * * or attempting so to do, places in any * * * authorized depositary for mail matter, any matter or thing whatever to be sent or delivered by the Post Office Department, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be" punished.

17. The second indictment before you, 59-107-M is under the...

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3 cases
  • Com. v. Beneficial Finance Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 4 de novembro de 1971
    ...in a conspiracy need not be indicated by words. Commonwealth v. Favulli, 352 Mass. 95, 113, 224 N.E.2d 422. See United States v. Palladino, 203 F.Supp. 35, 37--38 (D.Mass). See also supra p. 70 of this '12. The final objections to the charge, raised by Household and joined in by Pratt and B......
  • United States v. Barrow, 15093-15097.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 18 de julho de 1966
    ...and promoter, was fully aware of the scope of the illegal enterprise, including its interstate aspects. See United States v. Palladino, 203 F.Supp. 35, 41 (D.C.Mass.1962). The inference was not only justified, it was almost inescapable. It is inconceivable that Barrow would have placed empl......
  • Rude v. State, 92-76
    • United States
    • United States State Supreme Court of Wyoming
    • 26 de abril de 1993
    ...is shown by conduct, by a wink or a nod, by a silent understanding to share a purpose to violate the law. United States v. Palladino, 203 F.Supp. 35, 37 (D.Mass.1962). From the record before us, we can find no evidence that an agreement, tacit, oral or otherwise, was ever established. The r......

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