United States v. Pandolfi, 227.

• Decision Date: 03 June 1940
• Docket Number: No. 227.,227.
• Citation: 110 F.2d 736
• Parties: UNITED STATES v. PANDOLFI et al.
• Court: U.S. Court of Appeals — Second Circuit

110 F.2d 736 (1940)

UNITED STATES v. PANDOLFI et al.

No. 227.

Circuit Court of Appeals, Second Circuit.

March 25, 1940.

Writ of Certiorari Denied June 3, 1940.

Nicholas T. Rogers, of New York City, for appellant Pandolfi.

Jesse Climenko, of New York City (Wegman & Climenko, of New York City, on the brief), for appellants LoPiccolo and Scarpulla.

John K. Carroll, Sp. Asst. U. S. Atty., of New York City (John T. Cahill, U. S. Atty., of New York City, on the brief), for the United States.

Before SWAN, CLARK, and PATTERSON, Circuit Judges.

Writ of Certiorari Denied June 3, 1940. See 60 S.Ct. 1103, 84 L.Ed. ___.

CLARK, Circuit Judge.

On August 3, 1938, investigators of the government's Alcohol Tax Unit discovered an illicit still in a house on the farm of Anna O. West at Shrub Oak, New York. Certain persons, found at the still, were then arrested. Others were later apprehended, so that eventually fourteen were indicted. The indictment was in five counts. The first four charged the commission of substantive crimes of possessing an unregistered still, making and fermenting mash in an illicit distillery, distilling without giving a bond, and possessing distilled spirits in containers without revenue stamps (26 U.S.C.A., Int.Rev.Code §§ 2810, 2834, 2833, 2803 (a, g); the fifth alleged a conspiracy to commit these substantive crimes (18 U.S.C.A. § 88). Of the defendants indicted, six pleaded guilty at the beginning or at the end of the trial; the charge against one was dismissed by the court; one was acquitted by the jury; and the remaining six were convicted on the conspiracy count and acquitted on the other counts. Of the six who were convicted, Pandolfi, Lo Piccolo, and Scarpulla have appealed.

Among the errors assigned, the only one requiring detailed consideration is that the prosecution failed to produce a prima facie case against each of these appellants. The claim of error for asserted inconsistency in the jury's verdict is not sustainable. Rothman v. United States, 2 Cir., 270 F. 31, 37, certiorari denied 254 U. S. 652, 41 S.Ct. 149, 65 L.Ed. 458; Seiden v. United States, 2 Cir., 16 F.2d 197; Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356, 80 A.L.R. 161. And the errors assigned as to the admission of evidence refer to matters trivial in themselves and either stricken from the record by the court itself, or, if not clearly admissible, at least without indication of substantial prejudice resulting to the accused from their admission. The evidence, however, requires some analysis in view of the claim pressed upon us that under our recent decision in United States v. Falcone, 2 Cir., 109 F.2d 579, no jury issue was here presented. That case held that sales of sugar, not illegal in themselves, did not alone show participation of the sellers in a conspiracy of this form, even if the sellers had knowledge that the sugar might be used for an illegal purpose.

In the present case the defendants offered no evidence in their behalf. The government's case, as it affected them, was based on their connection with the transportation of sugar from the A. C. Trading Company in New York to three "drops" or places of storage near the still, and from there to the still itself. The proprietor of the Trading Company was one Calo, a defendant who pleaded guilty. Of the three drops, each located within a few miles of the still, one was in a stable rented from Renk, a defendant who pleaded guilty; another was in the garage rented of Mrs. Szenthe, a government witness; and the third was in a room of...