United States v. Simone
205 F.2d 480
2d Cir.
1953
Check Treatment

*1 gence. It is Mahnich v. question of absolute. See is a shipowner a to stevedore Co., supra, page shipowner has satis- Southern S. 321 U.S. at S. the negligence-—that 100, Su- seaworthy ship page 458, where the if S.Ct. duty at provide fied to “ * * * preme said, in this The cases inspection. Court diligent he has made a followed the shipowner has and other courts federal the court reasoned that if .have 158, 23 ruling the of The inspection steve- Osceola diligent made a before [189 483, the supra, that 760], have S.Ct. over, be held to L.Ed. he cannot dores take unseaworthy diligence does not relieve any condi- exercise of due negligently caused * * * to obligation This they over. the owner of his arising tions take after adequate appliances. [Citing cas- furnish case in Lauro United was followed v. duty is owed that the That this absolute also supra, although found the court es.]” clearly to Sie- ship control stevedores the unseaworthy when is shown had been Strand, racki case. the See also Kulukundis v. surrendered to stevedores. concurred, 708, analysis F.2d 9 The Judge Hand Learned 35, Shipping relinquishment doctrine above the of control page at but. that Seas asserted major premise the that Sieracki, had made shows that its is supra, Co. assimilated liability shipowner position the seaman the to the steve- longshoreman the the to inappli- upon have negligence. and was therefore dore is based We that the doctrine incorrect; applied major premise without that to be The shown cable. doctrine question incorrect, above cited. thus the entire doctrine is the cases other applied not should here. in his in Judge Hand was correct The decree of the re- district court is terpretation of case as the Sieracki assimi versed the cause remanded to dis- the position longshoreman lating a to the court trict for determination of the dam- injuries insofar received while on seaman as ages to Petterson is which entitled. ship are This is shown board concerned. opinion the reference in Sieracki policy been “common core of which has controlling” running through which is found permitting longshoremen

the decisions shipowners injuries for

recover from “that ship working while

incurred on board is entitled to

navigable waters stevedore statutory pro traditional and seaman’s tections, regardless fact that of the he UNITED STATES SIMONE et al. immediately by employed another than the 236, No. Docket 22619. page at at 328 U.S. owner.” Appeals States Court duty shipowner United is de page Second Circuit. scribed, page 95, page at 328 U.S. at duty all owing “a form of absolute as April Argued 9, 1953. range policy” of its humanitarian within June Decided further, page 328 U.S. at 66 S.Ct. exclusively “peculiarly page * * * obligation of the owner. delegate.” It cannot be assumed he cannot - Court meant stevedore protection merely lose this because

should employer temporarily as

his immediate had portion ship

sumed control of a of the with becoming pro

out the owner hac vice. liability shipowner injuries resulting

the seaman from un depend upon does negli-

seaworthiness

á81 appellant Cortesi was found counts two and three.. Of their three co- acquitted defendants one was and two were appealed. convicted and have not *3 unnecessary It is to recite the evidence in may detail. The events disclosed be summarized as 10 P. follows: About M. night on the of a October motor company truck engaged in trans- of portation freight company’s of air left the Manhattan terminal with a inter- valuable shipment state of merchandise to be taken Airport. to'LaGuardia After the had truck Bridge green crossed the 59th Street wagon carrying station five men blocked off, it and two of the men forced the truck companion driver and his truck to-leave the wagon. and to The truck enter the station garage stolen and was driven back to a Manhattan, part in where of its contents were transferred to another truck which away by was driven one of the co-defend- Todarelli, City, New York Sabbatino & appealed. ants who has not The trans- Todarelli, City, New York Thomas and J. portation company’s his truck-driver and Cortesi, appellants; Simone, and Farro for companion prisoners time were held for a Sabbatino, Edward A. Fischetti Peter F.L. testimony then released. There was and Starace, York New DePaul and Vincent Melito, Simone, identifying and a co-de- City, counsel. of fendant, appealed, has not of who as three Y., Smith, Brooklyn, N. for Vine H. occupants wagon. the station five of Melito, appellant. only appellant challeng who Lumbard, Atty., U. S. New Edward J. sufficiency es the of the evidence Farro. Beier, appellee; City, Norman S. for York green He was the owner of the station City, of Atty., York coun- New Asst. S.U. by “hi-j wagon used ackers” but sel. occupants. identified -as one of its Testi SWAN, Judge, Chief and CHASE Before mony bought showed that he had the sta -CLARK, Judges. and September 15, wagon about tion not in falsely he stated. He July regis as had SWAN, Judge. Chief it a fictitious name. Four tered or five appellants, together with four three incident, days “hi-jacking” after the he was co-defendants, upon brought were to trial possession the station wagon, of but charged them in count indictment which an attempts disguise by it had been made a motor truck mer black, with stealing removing one painting it one door and shipment constituting an interstate painting chandise and seats word several “Fish” freight;1 entering in -count two with witness testified on the side. that Farro A n intent a motor truck con with larcenous up touched having the fenders admitted taining freight;2 such and in count three paint. Farro was interviewed with black conspiracy3 commit these by and, with crimes. agents federal on four occasions Appellant found on all Simone was repeating the details his without various counts; appellants Farro and Melito stories, say three will.suffice to that he three; guilty on counts one and contradictory were found purchase statements as to his 1. U.S.C.A. 659. § § 18 U.S.C.A. 371. § U.S.C.A. wagon. subsequent request sale of the station their own delay counsel. No prove Concededly prosecution had to was made. All four of the ownership wagon

more than mere contend rights that their constitutional un- contradictory Farro.4 But his statements der the Sixth Amendment were violated.7 sale, purchase disguise as to tempora Although the numerous wagon, his identification of the ry substitutions among defense counsel men picture Simone directly court, were not ordered subsequent whom he had sold it re Judge Clancy permitted despite them no which, pudiation thereof, were statements given tice at the outset of the trial that false, when shown are evidence might there be a conflict of interest be *4 jury guilt.5 consciousness We think the of tween The defendants. defendants’ failure justified well in that Farro inferring was object themselves to to the substitutions is participated conspiracy, in the and this priv not a waiver of their constitutional respect principal with would make him a represented ilege by to be of their counsel charged in to the substantive crime count States, own choice. Glasser United 315 one the indictment.6 of 62 U.S. 86 L.Ed. 680. The procedure In the trial court the defendants had in followed the at bar case is separate Frequently during the counsel. not one to commended. Nevertheless be attorneys the would trial one or more of prejudice the assertions of so tenuous — are periods, indeed, when this be absent brief prejudice apparent no whatever is his brethren would either occurred of from the record—that we do not think that ap- or with the court’s required. volunteer undertake arrangement a new trial is The proval protect to interests of the tem- voluntarily by the parties was assumed the unrepresented ap- porarily defendant. This prejudice plainly their claim of is “an after pears voluntary arrange- to have been thought.” As Mr. Frankfurter said Justice ment, court, imposed by not one the opinion in his dissenting in the Glasser case, objected 315 page page no defendant ever to it. When at 62 verdict, attorneys jury period uninterrupted 474: long the returned its the “The of Cortesi, respective- silence representing concerning Melito and after-discovered in ly, jury negatives room. The clerk were not in the court its existence.” (Si- that Bender informed the court Mr. further contend Chapman’s attorney) “will take Mr. mone’s that error was committed because state Kaye (Melito) (Farro’s and Mr. at- client by ments made several the of defendants Dickman’s client torney) taking is Mr. arrest were after admitted without at once ju- that the (Cortesi).” Mr. Bender asked limiting against them as evidence the maker polled ry on behalf of Simone and be both However, they only. were so limited on request similar was Melito. A day repeated next trial and the the court Kaye behalf of Farro and Mr. on Cortesi. charge. its admonition in the It is the imposed the sentence court’s Before general rule that error evi admitting was called to the fact that attention “sev- may be instructing jury dence cured the haven’t their the defendants coun- eral of it; disregard to but where the character replied the To which court “That is sel.” jurymen the evidence is such that the are agents Their counsel have 'here had. unlikely too to be able to Mot it from their Apparently represent them.” Melito and despite minds the court’s later instruction in the were sentenced absence of so, Cortesi granted.8 mistrial should to do Dellaro, Cir., prosecutions, States v. 2 Cf. United 99 4. “In all criminal 7. the ac- * * * enjoy right F.2d shall the cused have the Assistance of Counsel for 'his Smolin, Cir., 2 States 182 5. United F. defence.” and, cited; Wigmore eases 2d Evidence, Ed., 3d § on 278. See also States, Holt 8. See v. United 285-291. §§ id. 90, 94; F.2d Cir., Mora v. United 2.§ U.S.C.A. ly prejudicial timing prosecutor neither the remarks of the We are satisfied that the character summation merit no limiting the nor discussion. instructions the within bring case at statements bar appellant Farro, insisting that exception general rule. wholly evidence against him cir cumstantial, complains of the refus court’s in the court’s defects Several al charge permissible that conviction charge None of them are also asserted. if, case, only every as to element of the Indeed, opinion merit. no time our has every hypothesis reasonable innocence portions ly objections taken to those were speaking (cid:127)is excluded. In circumstantial complained Initial charge of.9 charged evidence court “It must be ly jury’s con court withdrew convincing you so reasonable have no the interstate character of sideration you doubt. If have a doubt reasonable value, instruct stolen merchandise its you any defend after consider case of jury that these ing the elements ant, acquit you have to him.” That such undisputed. Subsequently, how were crime charge is sufficient has been held often ques ever, jury was recalled and these in this circuit.11 for its determination. were submitted tions *5 prejudicial appear- No error in the trial from the prejudice have resulted could No ing, judgments are affirmed. portion submission.10 The belated aiding conspiracy and charge relating to CLARK, Judge (concurring abetting, which the result). adequate. jury That complain, was 1 Because fear lest the constitutional appears charge confused not right cavalierly to counsel was somewhat verdict, which ac discriminating its from below, treated concur I with some doubt. found others quitted defendant prejudice I agree will that no real is made not counts and guilty on certain apparent temporary substitutions arguments made in alluding to In others. question during the trial. There is more counsel, the court by defense summation lack during to the of counsel the sen no one is opinion that expressed his tencing, seem which does to me definite wrongly, he immediate but jail unjustly or Cir., 5 error. Martin v. United apparent that his remark ly 225, 1236, 182 F.2d 20 A.L.R.2d certiorari by adding defendants directed not 892, 200, denied 340 U.S. 71 L.Ed. 95 “utterly apart from opinions were only But since would call 6 ignore you to all case, I instruct this resentencing judge, the same I shall taken, no objection was No of that.” point press against further apparent. alleged- error prejudicial my brethren. views of Crim.Proc., 30, 18 Rule Fed.Rules Cir., 9. See Valenti, 2 134 United States U.S.C.A.; States v. Bushwick United Cir., 362, 364, F.2d 2 certiorari denied 201; 198, Mills, Cir., F.2d 2 165 Unit 761, 1317, 319 U.S. 63 S.Ct. 87 L.Ed. Sherman, Cir., 171 F.2d 2 States v. ed 1712; S’pagnuolo, Cir., 2 United States v. 624, 619, nom. Grimaldi den. sub. cert. F.2d certiorari denied 168 335 931, States, 337 U.S. 69 S.Ct. United 378; 824, 48, 93 L.Ed. Unit U.S. L.Ed. 1738. Hall, Cir., States v. ed Mura, denied 345 certiorari S. States v. 10. See United Ct. 641. F.2d