*1 UNITED v. GILLETTE. STATES 154, Docket 21879.
No. Appeals Court Circuit. (cid:127)Second
Argued Feb. April 11, 1951.
Decided
Rebearing Denied June *2 Y., Smith, Brooklyn,
Vine H.
N.
Nathan
Bowling,
Kogan
B.
and
New York
Otho S.
City,
counsel,
appellant.
for
Saypol,
Irving
Atty.,
H.
New
U. S.
City,
Roy
Bruno
M.
Schachner,
Cohn and
Robinson,
Stanley D.
Atty.,
Assts. U. S.
all
counsel,
City,
appellee.
of New York
HAND,
Judge
Before L.
Chief
FRANK,
Judges.
Circuit
SWAN
SWAN,
Judge.
Circuit
appeal brings up
judg-
for review a
upon
ment of conviction
counts
9 and 10
illegal transpor-
charging
indictment
tation in
commerce of counter-
interstate
Company
Express
feit American
checks
violation of 18 U.S.C.A.
and con-
§
transport
spiracy to
them violation
of 18
U.S.C.A.
§
charged in count 8
from the
Southern
Illinois,
District
count 9 from the
District of New York to Los
Angeles, California. On each of
these
was fined
counts
$7500
imprisonment
years’
to ten
sentenced
consecutively.
conspiracy
served
On
years’ imprison-
count the sentence was five
concurrently
ment to run
with the ten year
terms,
Thus,
$5,000.
fine of
aggregate,
years
sentence was 20
im-
$20,000
prisonment and
in fines.
challenges
appeal
sufficiency of
the evi-
question
jurisdictional
dence, raises a
venue,
assigns
errors
the admission of evidence.
case,
The Government’s
made in
part by
large
of co-defend
pleaded guilty
who
ants
testified for
prosecution, proved
the existence of a
conspiracy pursuant
criminal
to which two
printers
$420,000,
counterfeited
Manhattan
value,
Express
face
American
Company
denominations of
travelers
twen
dollars,
fifty and one hundred
ty,
and de-
ap-
finding that
justified in
amply
dur- was
Manhattan
livered the counterfeits
conspiracy.
pellant
a member
became
Faucella,
co-defendant
July
ing
before
justice
fugitive from
became a
who
Gil
is whether
question
The next
*3
con-
the
proved that
also
the trial.
It was
the
in
tried
indicted
lette could be
passers
spirators
of check
engaged “teams”
transportation to
a
District
Southern
the counter-
large number of
who cashed a
Dis
Eastern
Chicago
began
which
throughout
the
in various cities
feit checks
stated, the counterfeits
previously
trict. As
trans-
were
country,
the checks
Manhat
by
printers in
delivered
were
ported
commerce before
in interstate
they were
tan,
evidence
there is no
but
is dis-
foregoing
of the
cashed. None
were
in
their
when
District
within the Southern
disputes
appellant.
he
puted by the
What
Chicago was
transportation
to
terstate
to estab-
evidence
sufficiency
is
So
August 19th.
planned
meeting on
at the
criminal enter-
participation in the
lish his
been in
then have
appears they may
far as
to
nothing
prise.
It
true that
there
Joseph Di
where,
days later
Brooklyn,
two
prior
him with it
connect
boarding the
got
Palermo
them before
19, 1949, as
which Edward
is also
which
La
Field
plane at
Guardia
place
meeting took
Larigan
That
testified.
or when the
District. How
in the Eastern
table
in
At the
in a restaurant Manhattan.
from Manhattan
carried
were
counterfeits
conspirators and also
were several
of8
Brooklyn was not shown. Count
group
Larigan
Gillette.
testified
transportation
charged
indictment
possible locations, includ-
discussed various
County, City,
and Southern
“from the
State
Havana,
cashing
begin
ing
which
York,
City
to the
of Chi
District of New
checks;
that Gillette dis-
of the counterfeit
only
prosecution proved
cago.” Since the
and,
approved Havana,
Chicago
after
Brooklyn
Chicago
a
from
agreed upon,
go
he
finally
said wanted
argues
fatal
that there is a
supervise
thing”
Chicago “to
but could
al
between the
jurisdictional
variance
join them
go
not with the others and would
proof.
argument
legations
and the
Larigan
there later.
also testified that
recognize that Gillette became an
fails to
day
after his arrival in
he received accessory
Manhattan on
19th to
telephone
long
a
distance
call from Gillette
Chicago,
the later
because
York,
“everything
all
asking
if
meeting in the
he coun
restaurant
inquiring
right,” and
for Di Palermo’s Chi-
selled,
aided
abetted it.1
Gillette
Since
cago hotel address and room
number.
transported the checks nor was
neither
day
next
Gillette arrived in
transportation,
present
by
-at their
the com
a room under an assumed name at
took
mon law rule
inherited it he would
as we
hotel at
accessory,2
only
the same
which Di Palermo was be triable
as an
staying.
conspirators
in the district where the accessorial
Later
acts
place.3
The statute cited in
1
note
Angeles
on to Los
moved
Gillette accom-
principal
accessory
makes an
them,
plane
so that it is
purchasing
panied
an air
ticket
possible to try him where
now
the substan
name.
under an
Without
the ne-
assumed
this,
tive offense was committed.4 But
cessity
reciting
further details
opinion,
supersede
our
does not
the common
testimony,
we
it obvious that
People
Hodges,
340;
U.S.O.A., provides:
“(a)
1
v.
27 Cal.
Whar
1.
18
Section
ed.,
ton,
Law,
against
12th
§
Criminal
263.
commits
offense
Whoever
States,
aids,
counsels,
abets,
People
Hall,
How.Pr., N.Y., 342;
3.
v.
57
induces,
procures
commands,
com
its
Chapin,
561;
Ark.
v.
State
State,
17
Johns v.
principal.
mission,
is a
421;
Moore,
19 Ind.
State v.
done,
“(b)
causes an act to be
Whoever
448;
Wyckoff,
N.H.
State v.
31 N.J.L.
performed by
directly
him
if
would
VI,
2 and 3
c.
65. See
Edw.
§
against
States,
the United
offense
be an
(1548),
by
repealed
IV,
7 Geo.
c.
32§
punishable
principal
is also
(1826).
such.”
Eley
Cir.,
4. See
v.
Lyon,
People
1 N.E.
F.2d
99 N.Y.
who
an addition
of others
told
provides
rule of venue
law
'but
trip
Angeles and
to Los
of his
construe
U.S. Gillette’s
Similarly,
al venue.
we
agreement
Joseph
with
Di Palermo’s state-
reducing,
broadening, not
C.A.
3237 as
§
things
expected,
if
Eng
gone
ment that
had
from
jurisdiction
inherited
venue
law,5
position
help
would
Have
hold that indict
been
Accordingly
lish
we
¡but
him as
he would not. Such testi-
prosecution
of Gillette
ment and
mony
Larigan generally,
corroborated
offense
District for the
alone as to
he said
what
of Gillette’s
proper.
count
8 was
Consequently,
conduct
if
opposite result is
As
count 9
requires reversal,
can
error
be-
be
*4
respect
with
required. No
acts
accessorial
cause, although
jury
believed what Lar-
to
any
the checks
of
of
to
of
igan said
Gillette’s actions
by
Angeles were committed Gillette
Los
they might
Larigan’s
not have believed
tes-
agreed
been
District. Had
timony
to
part
as
took
Gillette
in the
the checks would
that
of
part
in Manhattan
of
meeting
19th. This seems so
transported
part to Los
'Chicago
to
be
improbable
that we think
highly
failure
been con
two
would have
Angeles,
crimes
could not
af-
the instruction
have
give
to
been held
templated and he could have
as
non-prejudi-
and was a
verdict
fected
accessory
each;
was no
to
but there
cial error.
plan
appears
far as
evidence. So
such
to
was not con
Angeles
on
Los
to move
errors,
respect
alleged
With
to
Chicago.
Larigan’s
defection
ceived until
admission
evidence little need be
of
place'
Any
act of Gillette
accessorial
said;
Joseph
none has
Di
merit.
Palermo’s
judgment
sentence on
The
there.
presence
Larigan,
not in the
statement
count must be reversed.
9
Gillette,
nothing to
Larigan
worry
that
had
backing
about and that “Gillette was
pass
We
now to the trial court’s
deal,”
properly
as a
was
admissible
state
jury
that
charge. The
instructed
was
encourage Larigan, newly
made to
ad
ment
transporting
that of
crime was
conspiracy
to the
to act as
mitted
a check
“from the State of New
other
passer.7
participa
Evidence
Gillette’s
states,”
immediately followed
and this was
‘already in,
conspiracy
tion
was
adequate
aiding
on
by an
instruction
prejudice
might
whatever
Gillette
have suf
But the
not told
abetting.
jury was
that
instruction
by
fered was cured
the court’s
aiding and
act of
abet
it had
some
find
jury
char
to the
that a statement
order to convict on
ting Manhattan in
proof
not
used as
of the
acter “was
error,
the substantive counts.
was
conspiracy”
but
of the
was
existence
proof of
under the Sixth Amendment
venue
occurring
as a
furtherance
relevant
fact
indispensable
prosecu
part
is an
it,
conspiracy
if the
was found
to exist.
is
only question
case.6 The
whether
tion’s
Lopicollo’s testimony that
require
grave
so
Rose
Gillette
was
as to
re
the error
approved Di
statement
Palermo’s
in his-
of the conviction on count 8.
versal
We
presence that
if the affair had succeeded
not.
direct
was
The
planned,
have
transportation as
would
heen
linking Gillette with the
position
help,
properly
better
ad
came from
from New York
mitted as an admission
Gillette. Com
testified as to Gillette’s
Larigan who
con
19th,
plaint is also
the admission
made of
of Di
duct at
his
Lopicollo
warning
Palermo’s
Rose
telephone call from
long distance
New
her
during
conceal
visit to Gillette’s house
presence and
York,
to his
conduct in
trip.
argued
It
Larigan’s testimony was
her
that
Chicago.
fortified
768, 770;
Jones,
Monjar, D.C.Del.,
264 F.
United States v.
States v.
5. Cf. United
746, 748;
421,
Cir.,
F.Supp.
affirmed, Cir.,
428,
174 F.2d
see also
3
7
United
147
47
273,
859,
Johnson,
276,
v.
States
65
certiorari denied
U.S.
F.2d
L.Ed. 236.
S.Ct.
45.3 Attorney replies con- States to state that not until after the warning given problem probabilities, ended, inad- in terms of spiracy therefore had and was did, conspiratorial unduly court transac- Gillette because favored missible.8 The last charge jury mem- under neces- given with a balancing tion—a of accounts sarily conspiracy two found that he in Manhattan ber of the abetted —occurred Angeles opera- Los the interstate three weeks after the study charge had been does us tion concluded. record Further convinces Attorney Di right. not show Palermo’s admonition that the whether United States period. Rose came within this However was instructed the sub- be, object may did stantive transporting offense was “the the time its admission evidence. causing these be counterfeit checks to attempts rely “continuing transported on a commerce, is, He now in interstate ”* * * objection” nearly two record made hundred from one state to another * * * earlier, being pages Larigan ex- (fol. 2259). “The here is objection amined. was not made on That were carried from the State of [that] * * *” ground urged. now New York (fol. to other states *5 2260). charged The court then that such affirmed; Judgment on counts 8 and 10 transportation party is a crime if “the judgment count on 9 reversed. charged knew” that checks were coun- the transport- terfeit and “they Rehearing On Petition for were (fol. ed” 2261). Then followed immediate- SWAN, Judge. Circuit ly aiding abetting: an instruction on separate grounds Three granting for a transportation, charge “In this case the rehearing are petition. asserted course, will causing include to be trans- petition denied grounds as to one and ported abetting. or or ne- aiding It is not three. requested The court the United cessary jury a for that A himself find Attorney to file a memorandum in picked up forged paper or counterfeit answer to * ground. th'e second * * has done * * He * and himself carried it so for petitioner counsel the has filed * * * from Chicago But reply. a memorandum in if he caused it to be done aided or abet- or it, ted then he is equally guilty as as opinion Our former stated that * * * person paper who carried the jury “the not find was told that it had to words, In other gentlemen, ladies one aiding abetting some act of in Manhat may through act I may another. scheme tan in order to convict” on count 8 may a crime devise commit and I charged transportation indictment which - you out, carry you some of have of the counterfeit from New York provided actually guilty I are both I knew We that the failure to said part you causing and took to take give charge such was error but non was ”*** securities from one state to another prejudicial, highly because it so im was 2261-3). The court then probable fols. said that the jury did not believe Lari eighth ap- gan’s testimony part “The count of as to this indictment Gillett meeting plies the restaurant Man shortly to the defendant Gillette” 'and August hattan on give thereafter, 19th that failure át fol. stated that charge could not have affected the ver question not “whether there awas petitioner dict. The rul contends that our scheme, because those facts are well-es- * ** ing upon orig question effect an tablished. But for inal finding you fact this court Lari George is whether Gillette and Thom- testimony gan’s as the August 19th guilty as Polo as were in connec- meeting parti true and transportation that Gillette’s tion with the from New cipation meeting in that made Chicago purpose him an York of cash- transportation. you.” abettor of ing, United described States, See Krulewitch v. U. wick S. 69 S.Ct. L.Ed. Fis S.Ct. L.Ed. 196.
Under these instructions on count
could not convicted Gillette have abet he aided and unless found that
ted from New par of his Chicago and the evidence
ticipation prior to the arrival the scheme Larigan’s tes 'Chicago checks in
timony as what occurred 'at 19th. Hence
in Manhattan testimony, un
jury must have believed instructions, they disregarded less may we Since assume. Chicago had been com
pleted telephoned Larigan telephone nor
Chicago, neither the talk
the evidence acts in as to Gillette’s aiding Angeles, itself be an Los could transportation, although abetting might strongly well have been taken
confirmatory Larigan’s toas abetting aiding at the
Gillette’s reasons, meeting. For foregoing
19th *6 Bollenbach
we do 90 L.Ed. 66 S.Ct.
350, upon petitioner relies,
controlling. denied.
Petition CO., LOVKNIT STATES v. MFG.
UNITED Inc., al. et
No. 13361. Appeals Court of
United States Fifth Circuit. 1, 1951.
June