United States v. Saletko

• Decision Date: 03 April 1972
• Docket Number: No. 18451.,18451.
• Citation: 452 F.2d 193
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Morris SALETKO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

452 F.2d 193 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Morris SALETKO, Defendant-Appellant.

No. 18451.

United States Court of Appeals, Seventh Circuit.

November 30, 1971.

Rehearing Denied December 23, 1971.

Certiorari Denied April 3, 1972.

Julius Lucius Echeles, Chicago, Ill., for defendant-appellant.

William J. Bauer, U. S. Atty., Francis J. Murtha, Jr., Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and KERNER, Circuit Judge.

Certiorari Denied April 3, 1972. See 92 S.Ct. 1311.

KERNER, Circuit Judge.

Morris Saletko was found guilty by a jury on a single count indictment charging him with the possession of goods known to have been stolen from interstate commerce in violation of 18 U.S.C. § 659.¹ The district court imposed a sentence of eight years and the defendant has appealed.

This is defendant's second conviction and appeal arising out of the same incident. Saletko and 17 others were first indicted in 1966 for conspiracy and possession of goods stolen from interstate commerce. He was convicted of both conspiracy and possession and sentenced to 5 years on each count, the sentences to run consecutively. That conviction was reversed by this court, United States v. Varelli, 407 F.2d 735 (7th Cir. 1969). A new indictment charging only the possession of stolen goods was returned in 1969. It is the appeal from the conviction on that charge which is now before us.

Both convictions arose from the 1964 hijacking of a truck belonging to the Spector Freight Systems. The truck contained a shipment of Polaroid film from the Polaroid Corporation in Massachusetts and was destined for the Polaroid plant in Melrose Park, Illinois. The defendant, while not charged with participation in the theft, is alleged to have purchased the film from two of the hijackers. The hijackers, Patrick Schang and Angelo Boscarino, were called as witnesses by the government and their testimony constitutes the principal evidence offered by the government. Saletko's testimony differs materially from that of Schang and Boscarino.

Patrick Schang testified that he was a hijacker by trade and had been convicted of at least six offenses including hijacking, kidnapping, bank robbery, and the interstate transportation of a stolen automobile. Schang admitted that he had participated in the hijacking of the Spector truck on August 23, 1964, and acknowledged his subsequent conviction for that offense. With regard to the defendant Saletko's involvement, Schang testified that he and Boscarino approached the defendant on August 26, 1964, at the H & H Restaurant in Chicago where he worked as a cashier to discuss the possibility of his buying some of the stolen film. Schang further testified that the defendant indicated that he would be interested and said he would let them know in a day or two.

Schang stated that on Friday, August 28, 1964, Boscarino and another of the hijackers drove the film in a rented truck from Aurora, Illinois, to Chicago. On the way, the rented truck broke down on the Eisenhower Expressway and had to be towed to Chicago. It was taken to the rear of a parking garage next door to the H & H Restaurant where the defendant was present while it was backed into the garage. Schang also stated that the defendant told him to take the truck out the next day and that it would be empty.

About a week later Schang and Boscarino went to the H & H Restaurant where they spoke briefly to the defendant in front of the restaurant and were then taken to the basement where the defendant paid $16,000 for the film. This testimony is partially corroborated by that of Hugh Heraty, a Chicago Police Officer, who testified that on September 8, 1964, at about 12:35 p. m., he observed Schang and Boscarino get out of a car, enter the H & H Restaurant, and have a conversation with the defendant.

The defendant's version of the events is somewhat different. He testified that he lived in Lincolnwood, Illinois, with his wife and two children and had worked as a cashier at the H & H Restaurant for about 13 years. He stated that he knew Schang and Boscarino as customers in the restaurant, but denied that he had ever bought Polaroid film from them or ever paid them $16,000.

Defendant Saletko did acknowledge that he had spoken to Schang in September or October of 1964, but testified that Schang had come to the restaurant and asked if he would be an alibi witness for him in a trial for bank robbery. The defendant told him, "No, I don't lie for you or anybody else." In addition, Saletko stated that Schang had telephoned him sometime in August of 1964 and asked if he could make arrangements to get a truck into the garage near the H & H Restaurant. The defendant made these arrangements and was present when the truck was backed into the garage, but stated that he neither looked inside the truck nor had knowledge of its contents. He denied that he had had anything further to do with the truck once it was in the garage.

It is clear that this conviction is based upon the jury's assessment of the credibility of government and defense witnesses who gave irreconcilably conflicting testimony. In weighing the defendant's allegations of error, we are mindful of the pervasive role that credibility played throughout this trial. We recognize the danger that even slight trial court error may interfere with the fact-finding function of the jury in cases of this nature; but we are equally aware of the weight which must be given the jury's final assessment of witness credibility where the jury has had the opportunity to both hear the testimony and observe the manner in which it was given.

Defendant urges that he was denied a fair trial by the trial court's restriction of his Sixth Amendment right to confront and cross-examine the government's chief witness, Patrick Schang. This claim is predicated upon the court's refusal to allow defense counsel to question Schang concerning his previous address and his present employment. The basis for this refusal was the trial judge's belief that disclosure of such information would endanger the safety of witness Schang. With respect to the factual basis for such a belief, we note that the trial judge was the same judge who tried the original 17 defendants who were indicted and convicted for conspiracy. We must assume that he had intimate knowledge both of the facts of the case and of the people involved. Indeed, the defendant has not questioned the justification for the trial judge's belief that disclosure would endanger the witness.

The question presented for review is whether the disclosure of the witness' prior address and employer would have allowed the discovery of his present address by those who might harm the witness. The defendant argues that no showing was made which would justify the trial court's refusal and that such refusal prevented him from adequately preparing his defense. He believes that access to that information would have allowed him to discover information necessary for the impeachment of a crucial government witness.

In cases of this nature, it is always difficult to set forth the factual basis for the exercise of the trial judge's discretion since that information will frequently strip the witness of the very protection sought. In this case, however, the trial judge based his refusal upon the fact that the witness' present address was no more than two miles from the former. The defendant urges that such a distance renders discovery highly improbable and that the prejudice to the defendant from the refusal to allow disclosure justifies what he considers a slight risk. The trial judge did not agree, noting, "If there is any purpose at all in protecting a witness, it would be completely ridiculous to let you know a place within two miles of where he lived; by tomorrow morning, certain people who may be interested in finding out where he lives would find it out within the course of one day." We are unconvinced that the judge was incorrect in his assessment.

In Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931), and Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968), the Supreme Court set forth the general rule which requires disclosure of addresses of witnesses.² A specific exception, however, has become well established and it is our opinion that this case falls squarely within that exception. Mr. Justice White noted in his concurring opinion in Smith that the threat of danger to a witness would excuse the requirement of disclosure:

In Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624 (1931), the Court recognized that questions which tend merely to harass, annoy, or humiliate a witness may go beyond the bounds of proper cross-examination. I would place in the same category those inquiries which tend to endanger the personal safety of a witness.

Id. at 133-134, 88 S.Ct. at 751.

Both this and other circuits have followed the exception carved out by Mr. Justice White. United States v. Daddano, 432 F.2d 1119, 1128 (7th Cir. 1970), cert. denied, 402 U.S. 905, 91 S.Ct. 1366, 28 L.Ed.2d 645 (1971); United States v. Battaglia, 432 F.2d 1115 (7th Cir. 1970), cert. denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (1971); United States v. Palermo, 410 F.2d 468, 472 (7th Cir. 1969); United States v. Persico, 425 F.2d 1375, 1384 (2d Cir. 1970), cert. denied, 400 U.S. 869, 91 S.Ct. 102, 27 L.Ed.2d 108 (1970); United States v. Baker, 419 F.2d 83, 87 (2d Cir. 1969), cert. denied, 397 U.S. 976, 90 S.Ct. 1096, 25 L.Ed.2d 271 (1970).

It is noteworthy, though not dispositive, see United States v. Garafolo, 385 F.2d 200 (7th Cir. 1967), rev'd Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968), that the restriction did not prevent the defendant from extensively exploring the character of witness Schang. It was disclosed on cross-examination that Schang was 33...