United States v. John Calarco, Frank Gilfone and Teddia Riviello

circumstances, it unneces- In these view, my whether sary, to decide Denno, Jackson (1964), precludes a 1774, L.Ed.2d 908 J., part. Dooling, dissented finding error of constitutional jury on voluntariness instructions ruled once a of a confession voluntary confession jury. by the be considered America, UNITED STATES of Appellee, CALARCO,

John Frank Gilfone Riviello, Appellants. Teddia 145 and Nos. 33522-3,

Dockets and 34385. Appeals, States Court of

Second Circuit.

Argued March 1970. April 16,

Decided

appellants Calarco, Riviello, and Gilfone has been dismissed.

There was evidence from which the following could find the facts: On 14, 1966, December Warren met with Philip David and Tronco Garretson in a hijacking bar in Newark to discuss regular truck journey which made Jersey yard from a New railroad into Manhattan, loaded with television sets phonographs. Tronco said he knew Jersey “people City” would who be buying shipment; terested in and he telephoned appellant Calarco, who joined the other three at the bar. Ca- larco accompa- then asked the others to ny peo- him across town to talk to “the Newcomb, Wellington New York A. ple going get that was the load of tel- appellant City, for Calarco. evisions.” Maull, City, Jr., York Baldwin New Calarco, Warren, Tronco and Garret- appellant for Gilfone. joined Matthews, son James who had Newark, J., Bozza, for Samuel D. N. waiting outside the bar Tronco’s appellant Riviello. automobile, Thunderbird and drove to Gold, Atty., Jay Asst. Southern U. S. Club, the Democrat another bar. Calar- (Whitney of New York North District alone, explaining co went inside that he Jr., Seymour, Atty., and Peter L. U. S. going buyer.” was talk to “the After Atty., Zimroth, U. Southern Asst. S. hour, get about an Tronco went Ca- brief), York, New for District of on larco, who came out and told the other appellee. four in the car that he and people” indicating LUMBARD, Judge, follow “these AN two Before Chief — emerging DERSON, Judge, from individuals the Democrat Circuit and DOOL-I Club. he NG,* Judge. Calarco told the others “want- District bring ed to show where to [them] hijacking. truck” after the Judge. ANDERSON, Circuit Calarco, and Ted- John Frank Gilfone Those in the Thunderbird fol- appeal dia from their convic- Riviello Buick, appellant lowed a driven guilty upon tions verdicts Riviello, accompanied by was an un- who containing conspiring to steal a truck man, identified to a location shipment interstate of merchandise Highway, near McCarter Fourth Avenue stealing the substantive offense stopped Both there and Newark. ears truck, violation of U.S.C. §§ lights, turned off their Thun- 659 and We affirm. directly derbird behind the Buick. Ca- eight Buick, co-conspirators got out, There were went larco over indictment, among spoke in the named Riviello for fifteen about hijacker returning, there of wide was confessed minutes. As Calarco was experience, Wárren, police approaching, patrol he named who car Roland said, got the chief Govern- back into the Thunderbird witness others, you get ment. three entered “When the truck this is where Of bring guilty appeal you going bring it, pleas trial, are it here.” before fourth, point, police of a At and re- who was convicted with the arrived

* York, designation. sitting by District of New Of Eastern parted. pulled gun occupants cars Tronco then quired both Cherry explained barely identify when truck was out of themselves. giving sight just ferry slip. that he was Manhattan an officer truck, Cherry to Jer- Rather than people directions surrender in the other car put up delayed things departed. fight, sey City, Tronco which un- dis- til car when Garretson arrived stolen Warren were arrested helped out- and to While Tron- subdue him. that traffic warrants covered Cherry They standing co and drove to Yon- them. Garretson following kers, shortly provided group in members of the released on bail Ca- money They larco, approached the another car the truck. who told Warren decided, however, completion of the Riviello. had come from robbery impossible had because become Notwithstanding inter- unforeseen this construction workers were stand- several group ruption, of the reassem- members ing prematurely-seized near the truck. morning early of December on the bled They, therefore, standing simply left Jersey apartment in at Calarco’s engine Street, running. on West with its plans City, for the hi- detailed to make him One them called Calarco to tell Calarco, jacking. present were Those news, they the to Jer- and returned New Matthews, Tronco, Warren, Garretson, sey. group, John and new addition to Orangio. agreed Tron- here was got diner, When Warren back to the approach of the tar- the driver co would Gilfone, Calarco, appellant he found ferry get to truck when boarded waiting and an unidentified man out- 5 m. that Manhattan sometime around a. Orangio side. The four of them and day and a ride. He was same ask for to drove back to Manhattan see gun, pro- further instructed to draw a might yet away; truck be driven Calarco, the truck had vided when they people when found a number point some reached a disembarked and milling gave it, they up. around ferry away Man- in five blocks from to went back Calarco Warren hattan, to order time at Newark, in Calarco Democrat Club plan The out of the cab. driver When went inside a few moments. for group for member of the called another out, that Tron- he came he told Warren car, alongside pull in a the truck stolen to Cherry, following co, his abduction purpose, to take the driver for this got in with Riviello and learned touch suitably point in it to distant be- some premature action frustrated that his meantime, releasing In fore him. get attempt truck back in was arrive still another car Warren Jersey. Riviel- then said to New Tronco alongside it to truck and drive stolen himself, job finish the lo that he would the Tunnel Diner outside Holland guys” a new ren- two and meet “those Jersey City, where Calarco Tunnel point Route Calarco told dezvous on give meet him further go of them must the two Warren gave one of structions. unloading place 46 to warn on Route group phone number members person Gilfone, and the unidentified he, Calarco, a motel in which room police trap him, now waiting for notification would be Meanwhile, suspected. Tronco and Gar- way his to the diner Warren from Yonkers retson had returned the truck. hours, truck, which, several after hitching a ride Tronco succeeded parked with its en- on West Street still driver, the truck one Calanders running. gine every- point on, Cherry; but from that Cherry police, had called thing wrong hijackers. went Yonkers, the truck found from in the wash- Matthews was left behind They ap- Jersey around it. out the area diner staked room a New when approach suddenly the truck companions ferry parently saw Tronco and the m., many As but when a detective has been around 9 a. times stat ed, him, jury may the rule is he fled. Garretson that before the went after permitted conspira be came Tronco’s rescue the stolen to consider other hearsay automobile, of them made tors’ and the two utterances furtherance escape the street the de- as their down a means of deter mining particular guilt into the car. defendant’s tective fired five shots be yond very doubt, they destined to a reasonable the trial But were not drive they de- must first from sooner had eluded the conclude all the evidence far. No geta- question than that the defendant in tective way Garretson crashed conspir shown to car into another automobile while be a member of that attempting double-parked acy “by preponderance a fair avoid of the evi away. Both dence truck a block one-half utter Geaney, Garretson and arrested ances.” United Tronco were 1969). attempted F.2d 1116 Cir. Nov. to flee foot. non-hearsay linking to Riviello Calarco, ar- Riviello and after their conspiracy in this case included not rest, rights to remain both waived their just presence” his “mere at a certain They photographs of silent. were shown site, leading but also his acts of the oth being some of held the others who ers from the Democrat to Club that loca offense, in connection but Riv- relaying tion and there instructions to knowing Calarco, iello denied and Ca- through them Calarco.1 This was suffi knowing Riviello, denied larco either cient for the to that conclude Warren, or Garretson Gilfone. participant conspir Riviello was a in the plead All of those indicted did not who acy hearsay his that statements of tried; being guilty were convicted after co-conspirators in furtherance of the each sen- and Riviello were Calarco conspiracy against him. admissible years tenced to concurrent terms of five Nuccio, United States 373 F.2d v. years conspiracy and ten on convic- (2 Cir.), denied, 173-174 U.S. cert. 387 of tion the substantive theft offense. 18 L.Ed.2d 623 prison terms Gilfone received concurrent (1967). years of counts. four each of two argues appeal appellants Riviello in All his of the claim that prejudicial ei- evidence was insufficient establish the trial court committed er participation conspiracy permitting ther his in the ror in to in Government police it- photographs the theft that he aided abetted troduce them file of only appellant’s photo be- connection shown self. Each evidence. him, alleges, graph against tween these events was used as evidence presence” appellant, with the others was his “mere some other testimony in connection with Highway He site. the McCarter and Riviello evi testimony in- “guilty claims that all the other denced consciousness” when hearsay volving only knowing co-conspirators him consisted denied various conspirators. statements various at the time of their arrest. See United walked Warren testified that Calarco truck Warren’s own assertion holding delivery back to the Tliunderbird after Calarco’s statement concerned Riviello, gave conversation with in Warren’s a truck. The fact sight only away, relayed conspira few feet and that instruction to the other you point planning Calarco then said “this is where are tors at this in their of the going bring hijacking [the This testi truck].” was relevant and admissible in mony Riviello, dependent contents, nonhearsay was not be of its as a cause Warren’s about Calarco’s “verbal act.” See United States Lo pez, (2 statement was not offered in this context 420 F.2d 318 Cir. Dec. sug 1969) ; Geaney, supra, to show the truth of either Calarco’s gestion Highway p. 1120, the McCarter loca F.2d fn. 3 and 4. delivery tion was a suitable one for of the rejected re Farina, court Riviello’s Cir. States charge proof quest photograph was that “Where the 1954). Thus Calarco’s Riviello, pic- against is as con whose adduced the Government introduced along guilt, the put as with in evidence sistent with innocence was ture turn out Government had failed to make and others those Gilfone case,” instance, adequately instructed numbers In each Calarco. jury concerning prosecution's had photographs burden the file corners of pic- presump proof and the defendants’ backs and the been cut off tape to in its tion innocence elsewhere had been covered tures give charge. required Neverthe- was material. out written block stating charge requested appellants the effect less, contend photo- determine each defendant’s mem must such the introduction several bership on the evi graphs to disclose and state pictured co- dence of acts the defendants all conspirators. conspirator, as the Govern- ments of who testified pre- Nuccio, supra, well, F.2d at 173. chief ment’s witness appellants no er viously crimes. Otherwise the claimed of other been convicted charge exception ror no conclude, however, introduc We taken to it at the trial. photographs, as modi tion of these file Although appellant fied, likely Gilfone to cause the was not complains deprived prior that he criminal con infer the existence likely right failed the to counsel the court It is much more because victions. by po jury they to ask him whether he consented were taken assumed being represented by appellants at the attor were trial when the arrested lice jointly they ney charges then Riviello had re on the for which d.2 tained, ques such affirma being photographs court no in trie The duty. tion, jury of interest must tive A conflict in form in which saw any them, claim refer be shown a foundation for not overt as did include the representation depriva joint prisons specific of in ences to and dates right, apparent tion of this United constitutional which carceration 930, Paz-Sierra, “mug 932- States v. 367 F.2d introduction was shots" whose denied, (2 Harman, 1966), 386 U.S. 933 Cir. cert. in v. held United States error 962, 935, 1965). 807 17 L.Ed.2d (4 87 S.Ct. Nor were 349 F.2d 316 Cir. (1967), suggested none. improp Gilfone introduced to buttress erly nam color identification judgments The are affirmed. ing persons pictured perpetra (dissenting DOOLING, Judge District they were of the crimes for which tors part). in tried, being held to be the as was appear is enti- that Riviello States, U. 124 in United case Barnes v. tled to a new trial. (1966).3 318, S.App.D.C. F.2d 509 365 226, Reed, rested, F.2d United 376 Cf. States When the Government 1967). (7 argued acquittal strenuously 228 Cir. question photographs infer- 2. that no such were intro- Calarco now contends 3. in The in his case have drawn and Riviello’s ence could duced to establish Calarco’s picture co-conspira- acquaintance taken when because the file denial years younger tors, he was some ten more itself identification which was testimony. gratuitous age a differ- than his at trial and showed there was no And objection prosecution ence in his This of file hairline. to the introduction any pur- photograph, photographs, which was not raised for this or at trial, pose, other, ambiguous duplicating overlooks the fact less might already pictures have considered a receded evi- hairline defendants in adequately nearly dence, explained three such as those which marked the case, years which Barnes had intervened between Calar- co’s arrest trial in 1966 and this ground spent great I that the evidence aliunde in- tor. deal time on my dependent declarations about summation to the think, him made in absence insuffi- I and I think in fairness to cient of the case to warrant submission Riviello and Gilfone that should be jury (170a-174a). charged.” The judge ruled that under doctrine of Court, however, “I I stated believe Nuccio, United States F.2d 168 charged exactly have in accordance with (174a). Cir.), the evidence sufficed prevailing rule the Second Cir again parties When all rested Riviello Court, plainly, cuit.” bowed acquittal, moved for the trial re- given cases, evidently line of their defin decision, charged served and then expression itive in United States v. Gea jury (176a-187a). ney, 1969, 1116, 1119-1121, F.2d defining including conspiracy After that reaches back from United States v. knowingly the element associating the defendants’ Lopez, 1969, 317-318; 313, 420 F.2d conspir- themselves Tyminski, 1969, States v. 418 F. United acy charged (200a), the Court 1060, 1062; 2d er, 1969, United States v. Brank concluded that 378, 379-380; 418 F.2d United exist, sepa- did it had then to determine Ragland, 1967, 471, States v. F.2d rately for each defendant whether he (particularly 476-479 headnote participated in did so knowl- 25); Nuccio, number United States v. edge (202a). purpose of its unlawful 173-174; 373 F.2d United States v. charged The court then Dennis, 1950, 183 F.2d States, aff’d sub nom. Dennis v. United determining “In whether not the 95 L. knowingly joined defendant the con- 1137; Pugliese, Ed. spiracy you should examine and con- 497, 500-501; 153 F.2d case, sider all the Renda, 1932, 601, 602; cluding the acts statements of the VanRiper States, 1926, v. United 13 F. defendant under consideration as well 961, 2d give The 967-968. did not Court the acts and statements of other (221a-223a) Riviello’s belated re persons with whom that defendant is quest (228a-229a): posed No. 39 it an alleged (202a- conspired” to have opposite jury view: re the must 203a, supplied) italics adequacy “independent” view the of the and the Court then went on to other implicate evidence to conspiracy separately, a defendant in the parts charge. jury of the Before the re- may and not con tired, excepted Riviello’s counsel in the (“hearsay sider evidence of verbal acts following language (220a) declarations”) impli attributed to and cating think, your Honor, place him “I took of whether re- out his the presence deciding quest not, charge is or whether or not the made to failed proved conspiracy person Government has this the where a beyond sought complicitly and to his become member of a con- reasonable charge spiracy requested adjudged by The doubt. should be his based charge Judge independent on a of Weinfeld in own United acts or statements Galgano, enough States v. that he the found is not to makes. conspiracy, only it limit it to to determine those where he cases knowingly joined by wilfully joins whether each defendant it and a con- evaluating regard spiracy knowledge the evidence “without of it. The to, independently of, statements, hold cases that in order to seek one conspiracy acts of become or declarations others.” The re a member of a quested charge by says told out- must be done what he himself independent any declarations or re or or of-court admissions does aliunde of against persons ceived made or who declarations or admissions state- alleged “on by co-conspira- them were a conditional ments made received of all of the respect absent are considered acts basis” tentative others, though they independent “subject even defendants present.” conspiracy, of the proof the existence knowing absent defendants’ and such charge Judge Unit As see Weinfeld’s conspiracy.” participation 1957, Carminati, 2d ed Cir. charge requested continued: general 640, F.2d in the 644-645. See alleged participa- words, Elgisser, “In other 2d context United States conspiracy by defendant tion 1964, 103, 107. Cir. 334 F.2d against him cannot be established VanRiper from of the The view cases any of his and declarations acts through Lopez deeply rooted so is now alleged co-conspirators made done or law, a dis note Second Circuit A connec- defendant’s his absence. futile; contrary indeed, may sent be conspiracy es- must be tion by some criticized doctrine by independent proof based tablished commentators,1 and Circuit’s the Second be upon inferences reasonable elsewhere followed decisions have been ac- defendant’s own from such drawn States, g., (see, 9th e. Carbo v. United conduct, tions, his testi- own his own 735-738). 1963, 718, Al 314 F.2d Cir. declarations, mony his own connec- giving though practice the condi conduct tion with the actions fairly may be form of instruction tional alleged co-conspirators. the other support widespread, appellate defendant’s declara- acts “Each necessity practice propriety may own negative tions be uncertain and to an extent conspiracy with the 1942, connection States, United cast. Glasser v. Cf. may proved be 60, 74-75, 86 L. S.Ct. independent acts States, sum total 680; 5th Ed. Greer v. United alleged partici- 912; of all declarations 1943, 134 F.2d Schmeller v. Cir. pants. States, F.2d 6th Cir. Vida, 550-551; United States “However, you be- are satisfied once 766; Com 6th Cir. yond con- that a a reasonable doubt Rogers, 181 Mass. monwealth v. spiracy a defendant existed 421, 425-426. 63 N.E. conspir- member of the was a using acy, the test of admissibility absent described, proof, acts then the I have “declarations of fendants of evidence of any one of and declarations co-conspirators in furtherance persons you find was depends conspiracy” whether conspiracy, made also member of the a to ef- tools used words themselves were during pendency They are not criminal act. fectuate a objectives of its and in furtherance content their narrative admissible Preliminary Epstein Maguire entrap unwary portunity 1. Cf. Determining Law, the Ad ; Developments Questions of Fact judge”) cf. missibility 1927, Evidence, Harv. Conspiracy, 1959, 40 72 Harv.L. Criminal 392, (con 397, 19, 920, 415-424 (noting L.Rev. fn. if Rev. declarations 987 theory demning only rule thought logically should court if are admissible only admissibility preliminarily on evidence connects defendant admissibility “pass question conspiracy, yet then the evidence is determination,” jury along conditionally pass- to the for their admitted and the issue pages 420-421) ; Morgan, provisionally Functions jury, ed to the admitted Judge Jury may support in the Determination evidence in fact be used to Fact, 1929, prima case, hearsay lifting Questions 165, 43 Harv.L.Rev. thus facie (to reject jurors straps 176 believe will its itself boot to the level own competency, if prac- heard evidence unable to a fact find and that where that relevancy “requires prevails, requirement its which determines tice “the of inde- credulity impossible achieve”; pendent virtually a meaning- such is evidence approach op- less”). furnishes “the defendant an considering role—as in hearsay but for their constitutive “ver- the crime before merely part narrative utter- bal acts.” declarations as of the total inadmissible, proofs, and evidence of ance is but that the tois be freed spu- affirmatively act” not received for its hearsay “verbal to consider the implicating an rious narrative guilt value as issue of the absent defendant's beyond absent defendant. If an utterance is a reasonable doubt F.2d at act, evidentiary significance 1120), point, indeed, using verbal its to the it to falsity depends “tip not on its truth or the scale” in a case in in- which the —that upon point dependent might func- is beside the its evidence not convince —but guilt (ibid). In tion the commission of the crime. See, g., e. may some not the Bless, circumstances—and 1970, 2d Cir. present lie pp. 212-213; case be one?—a black about F.2d 210 at Eskow, role and orders 1970, the absent defendant’s States v. 2d Cir. pp. would be the most efficacious utterance 1060 at 1069-1070. The threshold of (cf. Geaney, supra, admissibility designedly to advance the crime set low 1121, 4) enough advantage fn. and the most 417 F.2d at to accord that to the damning prosecution. competent if treated as evi- complicity dence of the of the absent present case now seem at fendant. several removes from the context of States, cli- 1968, The cases which have evolved to Bruton v. United 391 U.S. Geaney, suggested 123, max have not 88 S.Ct. 20 L.Ed.2d competent underlying the declarations are evidence put Bruton is the value complicity.2 right of the absent defendant’s the defendant’s to confront and to They explicitly preserve idea cross-examine his Riviello accuser. keep from the the Court must the case could not because Calarco accus was his prosecu- er; jury unless satisfied that he could not call to the wit participation “by proved stand, fair tion has ness nor meet out-of- Calarco’s independ- preponderance imputation of the evidence court without himself testi hearsay fying. Douglas ent of the utterances.” United Alabama, Cf. Geaney, supra, F.2d at is, Geaney less, pellucid none the L.Ed.2d 934. And in the frame of ref only matter, Geaney is not not to be erence which fixes “in- procedure structed that it must find from the dependent” the aim and effect of the are beyond a require reasonable to dilute the reasonable doubt implicated process exaction, doubt that the defendant was ment—a due Matter of (Amer- “multiple hearsay” exception really involved, 2. The Riviello Institute, Evi- ican Law Model Code of Calarco knew il- it. Uniform Rule 66 530; dence, 1942, hearsay” “multiple excep- Rules of Rule Uniform lustrates Evidence, 1953, 66; McCormack, by saying hospital Rule tion record Evidence, 461) p. “hearsay” (true exception) § would not and within an embrace so much of Warren’s would be admissible try exception under business en- [(Rule that Calarco had stated to him Riviel- rule 63(13))], and, history lo had stated fact “X” to Calarco as if it contained sought put given by in evidence of the accident as an accident- plaintiff, history put his asserted statement of “X” to Calarco case could be against plaintiff an “admission” of Riviello’s. into Warren evidence as his testify 63(7) excep- can to what “admission” defendant Calarco under the Rule said him because the tion. words of Calarco up scope Preliminary made a verbal act furtherance of of Draft of Pro- posed conspiracy. If it were of of moment Evidence for United States Rules thought Magistrates, show that Calarco District that Riviello Courts party (c) burgeoning crime, (3) (v) (comment p. a to the Rule 8-01 at 169) uncertain; proposed Warren’s is that Calarco’s words Rule 8-05 is implicated himto also similar would be Uniform Rule 66 and illustrates admissible, hospital not show its sense that Riviello was use of a ex- record implicated, ample. show as Winship, 90 S.Ct. point at at 25 L.Ed.2d Petitioner-Appellant, Sidney JENKINS, large prosecutions, which, class in a prosecution fre-

the evidence George KROPP, Warden, Prison State A. suspect, the informer quently most Michigan, Respondent- of Southern testifying a accomplice silent what Appellee. defendant absent said the co-defendant No. 19452. place in the words had If had said. Appeals, States Court of United they functioned the record because executing Sixth Circuit. forming crime April plan, admissible. criminal require fairness But does not basic at the declara- be told once that absent tion is evidence participant in the crime

fendant was no such evidence

and will become never brought matter what evidence as a verbal act The declaration in? responsibility become, perhaps, proved par- defendant as a

of the absent offense,

ticipant in but in an evalua- legal perspec- proofs in the

tion of the finding

tive, it can not contribute to corrupt party pro-

gram.

If there be truth idea

incompetency to winnow evidence

pursuance (contrast instructions Bless, supra, 422 F.2d pp. 213-214), consequence would

not be the admission of such evidence Judge, Edwards, dissented. Circuit judge’s impression purposes upon all preponderance of that a the evidence^

believed, indicate absent venture,

defendant was associated in the

but the exclusion the evidence for ev-

ery purpose ground prej- its spurious

udicial effect

participation outweighs utility its as ev-

idence of constitutive Mr. act. Justice portrayal pitfalls

Jackson’s vivid conspiracy practice in the courts

(Krulewitch States, 1949,

U.S. L.Ed.

790) argues surely due-process for the

importance precision instruc- questioning

tions. See as view

juries judges capable less than Morgan,

making required analyses,

supra, Harv.L.Rev.

Case Details

Case Name: United States v. John Calarco, Frank Gilfone and Teddia Riviello

Court Name: Court of Appeals for the Second Circuit

Date Published: Apr 16, 1970

Citation: 424 F.2d 657

Docket Number: 34385_1

Court Abbreviation: 2d Cir.