United States v. Del Purgatorio

• Decision Date: 28 May 1969
• Docket Number: Docket 32896.,No. 290,290
• Citation: 411 F.2d 84
• Parties: UNITED STATES of America, Appellee, v. Frank DEL PURGATORIO, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

411 F.2d 84 (1969)

UNITED STATES of America, Appellee, v. Frank DEL PURGATORIO, Appellant.

No. 290, Docket 32896.

United States Court of Appeals Second Circuit.

Argued January 8, 1969.

Decided May 28, 1969.

Herbert S. Siegal, New York City, for appellant.

James D. Zirin, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty., for the Southern District of New York, New York City, and Lars I. Kulleseid, Asst. U. S. Atty., on the brief), for appellee.

Before LUMBARD, Chief Judge, MOORE and FRIENDLY, Circuit Judges.

MOORE, Circuit Judge:

Frank Del Purgatorio (appellant) appeals from a judgment of conviction by jury verdict. He was tried on only two counts (Counts 19 and 24) of an indictment containing 37 counts against 17 defendants. With him was tried Jose Marrero charged with conspiracy (Count 19) and with the possession (Count 23) of merchandise stolen pursuant to the Count 19 conspiracy. Count 19 alleged a conspiracy commencing in July 1964; Count 24 a conspiracy commencing in September 1964; each continuing to the filing of the indictment (July 1965). Appellant was convicted on both Counts 19 and 24; Marrero was acquitted on Count 19 and convicted on Count 23. Marrero does not appeal.

Appellant asserts five points of error, (I) inadequate evidence of guilt, requiring the granting of the motion for acquittal; (II) introduction of testimony of Frances Wieseltier, an unmarried lady being kept by appellant; (III) introduction of a conversation between appellant and a co-conspirator antedating the conspiracies by almost a year; (IV) introduction during the Government's direct examination of the co-conspirator that he had pleaded guilty; and (V) the joint trial with Marrero.

The evidence was sufficient for jury resolution, the testimony objected to properly received; and the joint trial justified. Therefore, the judgment of conviction is affirmed.

The Indictment

Count 19 in substance charged appellant, Betancourt, Marrero and four others with a conspiracy to steal goods from motortrucks in interstate commerce and to have such goods in their possession. 18 U.S.C. § 659. The conspiracy was alleged to have commenced in July 1964.

Count 24 charged appellant, Betancourt and two others, plus a co-conspirator not indicted, with the same unlawful activities.

Count 23 involved only Marrero and was for the substantive offense of unlawful possession.

I. The Evidence

The appellant contends that the evidence of two isolated sales is insufficient as a matter of law to sustain the convictions of conspiracy. The testimony and evidence at trial disclosed the following facts about the alleged conspiracies.

In late 1963 appellant purchased some stolen children's clothes from Betancourt, who was a hijacker of merchandise. At this time appellant indicated to Betancourt that he was interested in any future transaction and gave Betancourt a telephone number (the "DA 8" number) to call when he had more goods to sell.

In July 1964 Betancourt and an accomplice hijacked a truck in interstate commerce and the same day drove it to a store in Manhattan where they tried to sell its contents. These efforts proved unsuccessful. After storing the goods in New Jersey, the next day Betancourt called appellant at the number appellant had given him in late 1963 and inquired whether he was interested in purchasing some merchandise. Appellant expressed interest and thereafter purchased goods valued at approximately $400, paying Betancourt $90. Marrero also purchased $600 worth of goods from the same hijacking for $160. Some of the stolen clothing was discovered in Marrero's store in January 1965, and Marrero admitted that he had purchased this clothing from Betancourt. These facts constituted the basis for Count 19.

In September 1964 Betancourt and a different accomplice were successful in hijacking another truck in interstate commerce and in due course contacted appellant at the "DA 8" telephone number he had called in July. Appellant again purchased $400 worth of merchandise, this time paying $96. These facts constituted the basis for Count 24.

Although appellant asserts that there were only two isolated purchases, it is apparent that he knowingly associated himself with a hijacking operation which involved "fences" other than himself. Moreover, contact and tentative arrangements were made prior to any of the hijackings. The conversation in 1963 when appellant expressed his desire to purchase stolen goods and arrangements were made on a telephone number to be used so that appellant could be contacted when loot was available were essential parts of the successful operation of the conspiracy. Thus the jury had ample basis for finding that appellant was involved in an operation going beyond two isolated purchases of stolen merchandise.

II. The Testimony of Frances Wieseltier

Appellant contends that the testimony of his mistress, Frances Wieseltier, was offered by the Government because he had a meretricious relationship with her and "for the sole purpose" of disparaging his character at a time when his character was not in issue. However, the Government asserts that this contention is frivolous because her "testimony was highly probative corroboration of Betancourt's story that appellant had told him to contact him by means of the `DA 8' number." According to Wieseltier's testimony, the "DA 8" number belonged to her mother with whom she and appellant visited frequently in 1964.

The importance of this telephone number was underscored when on cross-examination appellant admitted receiving telephone messages at the "DA 8" number during 1964. Yet appellant denied ever having purchased anything from Betancourt or ever having given him the "DA 8" number to call when he had goods to sell. The probative value of the Wieseltier testimony, therefore, far outweighed the possible prejudice to appellant which might arise as to the nature of his relationship with the witness. United States v. Kompinski, 373 F.2d 429, 432 (2d Cir. 1967). Moreover, no objection was made at trial and appellant is precluded from raising it on appeal. United States v. Indiviglio, 352 F.2d 276 (2d Cir. 1965), cert. denied 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966).

III. Introduction of a Conversation Antedating the Conspiracies

Appellant asserts that it was prejudicial error to admit testimony of the conversation between Betancourt and appellant which occurred in late 1963 when he was alleged to have given the "DA 8" number to Betancourt. Appellant claims that such conversation took place before the conspiracies charged in the indictment and "was far...