UNITED STATES of America, Plaintiff-Appellee, v. John DIOGUARDI, a/k/a Johnny Dio, Thomas Plumeri, David Perlman and First National Kosher Provisions, Inc., Defendants-Appellants.
No. 171, Docket 32043
United States Court of Appeals, Second Circuit
Argued April 21, 1970. Decided May 27, 1970.
428 F.2d 1033
Certiorari Denied Oct. 12, 1970. See 91 S.Ct. 50, 51.
Jerome J. Londin (Joseph E. Brill, New York City, of counsel), for defendants-appellants Dioguardi, Plumeri and First National Kosher Provisions, Inc.
Jacques M. Schiffer, Rockville Centre, N.Y., for defendant-appellant Perlman (John L. Pollock, New York City, on the brief).
Before MOORE, FRIENDLY and SMITH, Circuit Judges.
FRIENDLY, Circuit Judge.
Defendants were charged with the substantive crimes of fraudulently transferring and concealing the property of a bankrupt in contemplation of bankruptcy, and of fraudulently concealing the bankrupt‘s assets from the trustee in bankruptcy in violation of
The bankrupt, Consumers Kosher Provisions, Inc. (Consumers), was under the effective control of defendant John Dioguardi. Defendant David Perlman had the title of president and defendant Thomas Plumeri was an important employee. In the summer of 1964, while Consumers was experiencing serious financial difficulties, Dioguardi negotiated a contract with American Kosher Provisions, Inc. (American), a successful competitor. The contract, dated August
American‘s counsel naturally refused to permit his client to close. Two officers of American, Alpert and Krutchik, said that creditors of Consumers had bеen holding off pending the closing; that under the circumstances they would not consent to an extension; and that the following morning the creditors would be notified the deal was off. Alpert instructed Krutchik to take an inventory, with a representative of Consumers, and return the Consumers property located at its own plants. After complications unnecessary to detail, in which all three defendants were involved, the inventory was completed in the early morning hours of Octоber 29, and defendant Plumeri gave a receipt for the goods. Later, American inventoried and returned the Consumers property that had been at American‘s plant; receipt of this property was also acknowledged by Consumers. According to American‘s recapitulation, the total property returned amounted to $32,452.57, valued at cost: Raw meat, finished and semi-finished products accounted for $10,071.54, and supplies, such as spices, casings, boxes and other containers, made up the balance.
Toward the conclusion of the inventory taken on October 29, Dioguardi told American‘s general manager that he was going into business under the name of First National Kosher Provisions, Inc. (First National), a hitherto inactive corporation he controlled. Operations were conducted in Consumers’ plant and with its leased trucks. New books were opened and First National‘s name was substituted on Consumers’ invoices and salеs tickets. To obtain working capital, defendant John Dioguardi, along with defendant Perlman and attorney Brown, obtained from one Sol Lichter a $10,000 check to Dominick Dioguardi, payment of which John Dioguardi guaranteed. No note was given or time of payment specified, and the loan had not been repaid at the time of trial. This check and an additional $10,000 provided by John Dioguardi were used to open a First National account at the Central State Bank; Plumeri, Perlman and Dominick Dioguardi were listed as the corporate officers.
First National began business by utilizing Consumers’ inventory; it had no other. The Government‘s evidence was that the entire Consumers inventory was so utilized. Haberman, an accountant engaged by Dioguardi, called him and reported that First National‘s profit figures for November were “unduly” high; Dioguardi promised an answer. At a meeting with Haberman shortly thereafter, Dioguardi and Plumeri produced an invoice purporting to rеpresent the total pounds of Consumers’ meat that First National had used. The figure $5523, although well below actual cost, was then assigned as the value of the meat and Haberman said he would carry this as a liability to Consumers. His workpapers so showed it, but it was not carried into First National‘s financial statements. Later Dioguardi remarked to Haberman that the $5523 would be paid to Consumers when First National received a bill. It never did.
On January 25, 1965, three creditors filed a petition in bankruрtcy against Consumers. It was later adjudicated a
Although much dust was scattered over details concerning the amount and value of the inventory that was used, the theory of defense was that attorney Brown had sanctioned the use of Consumers’ inventory and plant as a means of attempting to salvage something for Consumers’ creditors, although the latter were never advised of defendants’ intentions. Brown, whose testimony was replete with inconsistencies, supported this to some degree. Plumeri was the only defendant to testify. Despite or perhaps partially beсause of this and other testimony adduced by the defense, it is apparent, without burdening this opinion with more detail, that the jury was abundantly justified in rejecting defendants’ version and accepting the Government‘s theory that defendants deliberately aborted the closing with American and then helped themselves to Consumers’ property. Appellants’ contention of insufficient evidence thus borders on the frivolous, and we turn to claims of trial error.
II.
Alpert, of American, was the first Government witness. During the luncheon recess, the prosecutors mentioned to him in the corridor that he had omitted to testify to several facts he had previously disclosed. On recross examination that afternoon he denied having talked with the prosecutors during the recess, other perhaps than to ask when he could return to Miami. At the conclusion of redirect examination the prosecutors requested a conference at sidebar and revealеd the conversation. The judge asked defense counsel whether they wished to bring this out and proposed as alternatives a statement by the prosecutors or further examination of Alpert. Counsel insisted on a hearing outside the presence of the jury, which the judge denied. The prosecutor said he would not object if defense counsel wished to ask Alpert whether it wasn‘t a fact that he had spoken to the prosecutors in the corridor. The judge urged defense counsel to cooperate “to the extent of advising whether you wish that revealed to the jury or whether you think your clients would be in any way prejudiced by revealing it to the jury.” When counsel declined, the court directed the prosecutors to tell the jury what had occurred.
The leading prosecutor then stated to the jury that, contrary to Alpert‘s testimony, he had told Alpert during the recess that he thought the latter “had purposefully omitted important testimony, dаmaging against the defendants, and that he sounded on cross-examination more like Mr. Brill‘s witness than the government‘s witness.” He added that his associate had remarked about Alpert‘s failure to mention an offer by American to close if the sellers would furnish a surety bond for protection; the associate went into greater detail about this.2 The judge then asked Alpert whether the prosecutors’ statements were true. Alpert answered he “would imagine it is substantially about what they may have said.” Defendants’ motion for a mistrial was denied and, after a few further questions by defense counsel, Alpert was excused.
We have some difficulty in understanding just what is claimed to have been wrong about this. The court could not leave the record with a lie by Alpert known to the prosecutors but not disclosed to the jury, unless defendants preferred to waive the point—which they were given an opportunity to do. If the criticism is that the prosecutors
III.
A more serious point is the Government‘s failure to produce the program by which its witness Row had instructed a computer to prepare figures showing the dates when First National had exhausted the various items of Consumers’ inventory turned over by American.
A previous witness, Lonergan, had calculated First National‘s purchases of raw materials and sales of finished products during the period from October 29 to November 26, 1964, and its inventory of both on November 27. He determined the sales to have amounted to 105,648 pounds and the inventory to 42,679 pounds, a total of 148,327 pounds. Purchases had been 108,475 1/2 pounds. Deduction of these left 39,851 1/2 pounds that must have come from some other source, presumаbly Consumers’ inventory, although this appeared to have been only 25,569 1/2 pounds. Defendants had criticized Lonergan‘s data and computations on numerous grounds.
Row used as input data this figure of Consumers’ inventory and Lonergan‘s tabulations of various slips showing First National‘s purchases of raw materials and sales of finished products. The computer was then instructed to determine the dates when, on the basis of first in, first out, Consumers’ inventory would have been exhausted both for specifiс items and in gross; the answer to the latter was November 5. When the Government offered print-outs showing the computer‘s answers, defendants were granted an extensive voir dire.
The defense began by bringing out that Row had made no independent examination but had relied on Lonergan‘s work. Criticisms previously made with respect to that testimony were repeated, and it was contended that Row had ignored some of Lonergan‘s data. Mr. Schiffer, counsel for Perlman, moved to strike Row‘s tеstimony and to exclude his exhibits on these grounds. The motion was denied. Mr. Brill, representing the other defendants, then raised the contention that the program given the computer was producible under the
We fully agree that the defendants were entitled to know what operations the computer had been instructed to perform and to have the precise instruction that had been given. It is quite incomprehensible that the prosecution should tender a witness to state the results of a computer‘s operations without having the program available for defense scrutiny and use on cross-exаmination if desired. We place the Government on the clearest possible notice of its obligation to do this and also of the great desirability of making the program and other materials needed for cross-examination of computer witnesses, such as flow-charts used in the preparation of programs, available to the defense a reasonable time before trial. See United States v. Kelly, 420 F.2d 26 (2 Cir. 1969). However, we do not believe the interests of justice require reversal of these convictions because of what occurred here.
To begin, we have the gravest doubt whether defense counsel made intelligible to the court what we deem their one meritorious point concerning the program, a point first clearly expressed in the reply brief in this court, namely “that without the ‘program’ it [the defense] could not properly test the validity of the results of the computer nor could it properly cross-examine Mr. Rоw.” Although close scrutiny of the record we have summarized in what must have seemed tedious detail may enable one, reading with the benefit of hindsight, to glean the argument that the defense was entitled to check just what the computer had been asked to do, any suggestion of this was buried in the avalanche of other arguments, especially the claim with respect to
The instruction here given the computer must have been one of utmost simplicity, as defense counsel must have realized—to start with the opening inven-
IV.
The only other contentions that warrant comment are a variety of claims that defendant Dioguardi was denied a fair trial because of his known association with organized crime.
The judge acted well within his discretion in denying motions for a continuance or change of venue. Many of the articles referring to the case were in publications having limited or no circulation in the Southern District of New York. With respect to others, which referred to Dioguardi‘s connections with the Mafia, we echo Judge Weinfeld‘s observations in United States v. Kahaner, 204 F.Supp. 921, 924 (S.D.N.Y.1962), aff‘d, 317 F.2d 459 (2 Cir.), cert. denied, Keogh v. United States, 375 U.S. 836, 84 S.Ct. 73, 11 L.Ed.2d 65 (1963), and our own in United States v. Grassia, 354 F.2d 27, 29 (2 Cir. 1965), rev‘d on other grounds, 390 U.S. 202, 88 S.Ct. 899, 19 L.Ed.2d 1034 (1968). We add the counsel of experience that transfer from a metropolitan area to a smaller city may result in more rather than less intensive publicity.
Judge Mansfield‘s examination of the jurors, far from being subject to valid criticism, seems to have been a model which other trial judges could utilize to advantage in cases of this sort—save in one particular. In examining at sidebar prospective jurors who had read or heard anything about any of the defendants in the case, the judge did not arrange to have the defendants close by. See
The remaining point is that the indictment, which was sent to the jury over objection, described Dioguardi as “a/k/a Johnny Dio,” the name by which he was often described in articles about the underworld; that the prosecutors asked two witnesses whether they knew Dioguardi by another name; and that on one occasion the court inadvertently referred to him as Mr. Dio. While we see no occasion for the Government‘s having inserted the added phrase in the indictment or for the prosecutors’ questions, since the witnesses all knew Dioguardi under his full name as well, see United States v. Monroe, 164 F.2d 471, 476-477 (2 Cir. 1947), cert. denied, 333 U.S. 828, 68 S.Ct. 452, 92 L.Ed. 1113 (1948); United States v. Grayson, 166 F.2d 863, 867 (2 Cir. 1948); contrast United States v. Miller, 381 F.2d 529, 536 (2 Cir. 1967), cert. denied, 392 U.S. 929, 88 S.Ct. 2273, 20 L.Ed.2d 1387 (1968); United States v. Valenti, 74 F.Supp. 718 (W.D.Pa.1947); United States v. Melekh, 193 F.Supp. 586, 595 (N.D.Ill.1961), the defense itself had caused the Dio name to be brought before the jurors as a result of its claims with respect to pre-trial publicity. Moreover an abbreviation, unlike a true alias, does not “arouse suspicion that the accused is a person who has found it useful or necessary to conceal his identity.” United States v. Grayson, supra, 166 F.2d at 867. It is thus even clearer than in Grayson that “the references complained of would not in our judgment even remotely tend to justify a reversal.”
Affirmed.
J. JOSEPH SMITH, Circuit Judge (concurring).
Were this case at all close on the issue of whether First National used the bankrupt‘s assets with no intention of paying for them, I would be inclined to dissent on the ground that the computer program should have been produced in spite of the erroneous reliance on section 3500 in the request for it. But I agree that there was no real dispute on the issue of the use which was affected by the accuracy of the computer, and concur in the affirmance of the judgment.