*1 gauntlet bat- the trial court hear their entitled to have compelled run the to pass covering of ed- on their experts contention tery the fields of assignment pupil plan (scholastic aptitude, intelli- that brought has not the ucation existing previously ability), psy- energy gence, to or mental segregation. policy factors), of racial chology sociol- (psychological ap- event then class of fact is ogy (condition socio-economic of pellants pupils), reli- would be entitled to their consciousness gion junction prayed. (moral court back- as The should ethical and ethics also, circumstances, ground qualifications), medicine in such relief afford suggested opinion factors), of the in our (health or law enforce- kind law case, supra. good order), cul- Gibson In the meantime (safety ment background jurisdiction qualifica- (cultural court should retain of ture attempting meet the cause. pupils) to tions of “white” to a for admission tests is reversed and the dismissing order The Court’s school. cause to remanded trial court for hearing re- complaint without proceedings further inconsistent quire do school children to opinion. with this protection order a court without the making of of race certain that the factor solu- would not be consideration intangible many tests.
tion of these disposi- appellee show failure of segregation policy, tion to abandon the
long and, pursued, 1954, known since illegal, constrains us to hold be UNITED STATES of America plaintiffs mas- entitled such are testing contemplated, assum- sive ing AMEDEO, Appellant. carried Florida statute is No. 12993. good objectively faith, and in United States Court of background of a decree of the trial Third Circuit. prohibiting consideration court factor, pupil as a relevant Argued the race of Feb. course, plaintiffs assuming, of DecidedMarch support the a factual basis to establish allegations complaint. of their being We conclude without assign- quired application make for school, particular the individ-
ment to appellants, for themselves and
ual they represent, are
for the class which pupil applying ability parent guardian for ad- consent psychological, moral, standing parentis mission in loco to the background qual- pupil, and cultural facilities teach- ethical the available pupil applying ing capacity for ad- several within ifications schools compared pupils county, with other mission as the effect of the admission assigned upon previously the school which established aca- of new students sought. programs, intention admission is demic the effect admission delegate legislature hereby pupils progress academic of new necessary pupils particu- boards all the local school enrolled the other authority pre- school, suitability proper administrative lar of established regulations such rules and to scribe curriculum students enrolled or given adequacy school, decisions and make such determinations be enrolled in purposes.” requisite may pupil’s preparation such for ad- academic 230.232(2), school, F.S.A. to a scho- Section mission energy aptitude, intelligence, mental lastic *2 trict Court for the District of New Jer- sey. question The sole is whether against up- evidence him is sufficient hold has his conviction. Since the per- found him all facts missible inferences therefrom stand in prosecution. favor of the men Amedeo was indicted with two respectively Rie- named Mastrocola and ciardi. These two men were accused of- and substantive only Amedeo, however, fenses. conspiring with them having commit offenses to do with portation of a stolen automobile charge state commerce. The included following: 2312; in violation of 18 U.S.C.A. § dispose sell in violation 2313; conspiracy of 18 U.S.C.A. § conceal violation of 18 U.S.C.A. § aid and abet transportation, sale, concealment disposition in violation of 18 U.S.C.A. §§ 2, 2312, are the presented prosecution’s facts as necessarily jury. parked near the corner of Second Sixty-fifth
Avenue and
was stolen on June
It was a red and
1958 Ford
white
plates.
and a
helper
the automo-
stole
garage Maspeth,
and took
bile
it to a
Queens,
York. This
rented
at Ame-
earlier been
deo’s direction. There was
show that
of car thus stolen had
Sommer, Newark,
George
N.
R.
J.
theft;
been
in other
selected
Helfrich, Newark,
J.,
(George
N.
P.
words,
tailor-made
the theft was a
appellant.
brief), for
job,
not one for
car would
Querques,
Atty.,
Asst. U. S.
A.
Michael
was also
do. There
Newark,
(Chester A. Weiden-
N. J.
which a
could find that
four-
some
Isles,
Atty.,
burner,
E.
Asst.
U.
Daniel
S.
days
(June
teen
before this theft
brief),
Newark,
J.,
Atty.,
N.
on the
U. S.
1958)
opportunity
had had
appellee.
of New York
steal a book
State automo-
GOODRICH, HASTIE and
Before
ownership certificates from
office
bile
Judges.
FORMAN, Circuit
Dyer
Incorporated,
Motors
Queens
Elmhurst,
Boulevard,
New York.
Judge.
GOODRICH, Circuit
of these
One
appeal
subsequently
from a
filled
a fictitious
is an
convic
“Hogan Ford-Mercury”
listed
dealer and
in the United States Dis-
of Amedeo
tion
fer of
Reino.
that certificate to Mrs. Rita
Ford as
four-door
he
Mrs. Reino’s
Levy.”
husband testified
“Saul
to one
sold
paid $1,300
to Mastrocola and
At
get
to the stolen
Now to
back
for the car.
*3
Amedeo
garage
McNair and
where
“stripped.”
Reinos
car,
The car
from
was recovered
the vehicle was
took the
July
on
and
1958.
plates
removed
were
plates
Jersey
substituted.
New
license
If
a convic
case involved
this
locks
plate
removed.
The serial
was
stealing
automo
tion of
Amedeo for
right-hand
trunk were
door
on
prob
bile New York
would have
in
we
removed
removed,
stuff thus
all
enough
sup
But is there
lem.
bag
put
in a
car
from the
was
port
conspiracy? Con
a conviction for
by
Subse-
into a river.
Amedeo
thrown
in concert
some action
involves
Apollo
they
quently
car to
took the
among conspirators
claims
one
but no
Garage
York
Delancey
in New
on
Street
express
more that
must be
there
Mc-
Amedeo
left it there.
3
agreement among
a con
them. And
parking
a tavern
Nair
ticket
took
by
spiracy may
proven
circumstantial
where
Forsythe
York
in
on
New
alone.4
gave
Mc-
whom
to someone
Amedeo
it
significance
It
a matter of some
that
is
identify.1
was unable to
Nair
job
the car theft was a made-to-order
is
there
direct evidence
is all the
This
prior
which must
been the result
except
participation
that
about Amedeo’s
somebody who
communication between
car
that
Amedeo told
later
car and
wanted a
by
picked up
authorities
had
significant
It
Amedeo.
is
that
they might
another
find
that
could have stolen the
New
book of
car.2
ownership
theft
highly significant
picked
that
meantime,
this
changed
Jersey.
plates
New
up by
license
to New
someone and taken
Jersey plates
con-
that
car was
non-existent
invoice from the
false
along
dealer,
Ford-Mercury”
the rented
while the
“Hogan
cealed in
change
Leaving
certificate,
a
forged
was made.
a car in
with
delivering
parking
lot
the ticket
of New
issuance
a
the basis of the
arrangement
it to
tavern
Jersey ownership
name
a
indicates an
certificate in the
pick
up
it
fact
Levy”
subsequent
with someone to
and the
of “Saul
respects.
testify.
him in all other
All
wliile
did not
1. Amedeo himself
testimony pertaining
make no
The conversation
seem to
the events
made
sense unless it was
after
the au-
of the theft
to the time
time
parking
thorities
recovered the car.
tavern
stub
left at the
not in-
McNair was
from McNair.
came
Cir., 1954,
Georga,
States v.
3
3. See United
co-conspira-
nor was he listed as a
dieted
45, 48, and
cases cited. See
210
in the indictment
the others.
tor
Developments
generally,
in the Law:
Conspiracy, 72 Harv.L.Rev.
Criminal
that
testified
2.
Agreement
(1959); Cousens,
during
sometime
“the
remarks
Conspiracy,
in
23
an Element
Va.L.Rev.
delivery
car to
after' the
week”
Apollo
(1937).
898
garage.
Counsel for Amedeo con-
Judge Leahy said in William Gold-
As
place
effect of this is to
tends
Loew’s, Inc., Cir.,
Theatres, Inc. v.
3
man
occurred dur-
the conversation
15:
150 F.2d
note
“The
July,
ing
first week in
which would be
meeting
picture
as a
recovery
actual
of the ear
before the
well
twilight
of sinister
trio
argues
July 16.
this
From
counsel
together
pointed
belongs
hats
close
contention,
prosecution
age.”
darker
shows that Amedeo was still an
versation
recovery
Migliorino,
after
interested
Developments
However,
car,
See
is unfounded.
238 F.2d
easily
Conspiracy,
Criminal
have believed
McNair’s
Law:
Harv.L.
could
slightly
920, 984
estimate was
Rev.
erroneous
time
picked up
New
it
it
was to be
a variance. But I think
significant
Jersey
plates
furnishes
on at least
was not
license
and does
variance
concluding
foundation for
afford sufficient reason for
reversal.
merely
the car to
It could
someone was
take
have been avoided
Jersey.
Amedeo,
charging that,
could be
in addition to
someone
Mastrocola,
“persons
be a
Amedeo was
with whom
Ricciardi and
un-
up
joined
conspiracy.
contact. When the car
known”
shows
Cf.
selling
Jersey,
supra.
the transaction in
Linde v. United
I do not
any way
handled
Ricciardi.
omission
recovered,
When
surprise
the stolen car is
sulted in
at
or harm to Amedeo
*4
extrajudicial
knows about
and tells
trial. No
statements
perhaps they will
to steal another.
have
Mastrocola
or Ricciardi were used
against basis
and there is no
sug
Argument
appellant
for the
guilt
fearing
was.
gests that at the end of the Government’s
wrong-
attributed to Amedeo for their
imagination
perhaps a
case
stretch
doing. Amedeo was shown
permit
a conclusion that there
spired with
someone to cause the
defendants.
the three
state
movement of the stolen vehicle
But,
argument runs,
disappears
question and that
the essence of the
at the
of the entire
case because
charge against him.
ever
and Ricciardi denied
Only if a variance
sub
affects “the
knowing
they met
Amedeo before
rights”
stantial
is it reversible
argument
court at the
trial.
Berger
error. 28 U.S.C.
2111. With
§
weight.
certainly
did
v.
1935,
78,
United
295 U.S.
especially
need to
believe
two men,
629,
1314, compare
S.Ct.
79 L.Ed.
Kot
light
of Mastrocola’s
States, 1946,
teakos v. United
328 U.S.
he knew Amedeo’s father and uncle.
750,
66 S.Ct.
sufficient to
to find that
was a member of
in inter-
stolen vehicle
LEWIS, Appellant,
James W.
state commerce. I am not satisfied
record,
v.
present
Mas-
trocola,
only co-conspirators
America,
UNITED
STATES of
Appellee.
indictment,
indicated
shown to
acted with
awareness
BURLEY, Appellant,
that an interstate transaction
v.
charg-
Thus,
joinder
their
volved.
America,
UNITED STATES of
conspiracy seems not to
ed
be established.
Appellee.
Crimmins,
Cir.,
States
Cf. United
Nos.
United
Linde v.
States, 8