United States v. Orlando Delli Paoli

229 F.2d 319

• Court: Court of Appeals for the Second Circuit
• Decided: March 26, 1956
• Docket: 15-1060
• Status: Published

Opinions

HAND, Circuit Judge.

The defendant, Delli Paoli, appeals from a judgment convicting himself and four others after verdict by a jury on an indictment for conspiring to sell, and for selling, illicit alcohol.¹ The conspiracy charged was, and the evidence tended to show, that three of the five accused, Delli Paoli, Margiasso and Pierro, bought a garage in Harding Park, a suburb of New York, which they used for the storage of illicit alcohol. The windows were covered over, the door was locked, and the alcohol, loaded in cartons on a “Diamond T” truck, was from time to time brought to the garage where it was stored, awaiting sale. The practice was for a buyer to drive to a “service station” on Bruckner Boulevard, also on the outskirts of the city, where Margiasso would get into the buyer’s car, drive it to the garage, fill the order from the alcohol stored in the garage, and drive it back to the “service station” where the buyer, who had meanwhile been waiting, would pay the price and accept delivery. The appellant does not dispute that there was evidence sufficient to support a verdict against the other four defendants, but he denies that there was enough to connect him with the venture; and he also complains of the admission in evidence of a confession of one of the defendants, Whitley, who like King, appears to have had no part in the enterprise except as a buyer.

The evidence connecting Delli Paoli with the conspiracy was in substance as follows. He had already been an ássoeiate of Margiasso and Pierro for some time before December, 1949, when with Pierro he inspected the garage that was later used as the storehouse. Later in that month, when Pierro began to negotiate with the owner of the garage, Delli Paoli and Margiasso were both with him. He at times rode in the “Diamond T” truck that carried the cartons of liquor for storage in the garage. (Incidentally the truck was registered in a false name.) In 1951, two years after the business began, on one or two occasions he was at the “service station” which was the place of delivery and talked with King or Whitley while Margiasso drove their cars to the garage, filled them with alcohol and delivered them so laden back to the buyer. Not only was all this enough to connect him with the business, but the jurors could hardly have failed to find that he was in the enterprise. The whole business was illegal and carried on surreptitiously; and the possibility that unless he were a party to the venture, Pierro and Margiasso would have associated him to the extent we have mentioned is too remote for sei'ious discussion.

The other point is the admission of Whitley’s written confession, which was given after his arrest. The purport of this was that Whitley began to buy illicit alcohol in November, 1949, from an Italian, named “Tony.” This continued until the summer of 1950 when “Tony” substituted as the seller another Italian, named “Carl,” who in the summer of 1951 introduced him to Delli Paoli, known as “Bobby.” Delli Paoli later introduced him to Margiasso but told him not to pay Margiasso for any alcohol that he bought. Until about November, 1951, the practice had been for Whitley to drive his car either to 138th Street and Bruckner Boulevard, or to the corner of Soundview Avenue or Bruckner Boulevard, where he would meet one or the other of these two men, who would drive away with the car and come back with the alcohol in about twenty minutes. During the last two months of 1951, the rendezvous had been the “service station” on Bruckner Boulevard that we have mentioned. Judge Dawson admitted this confession against Whitley only with the most particular and scrupulous admonitions that the jury should disabuse their minds of it in deciding the guilt of the other four. At one stage of the protracted discussion about its admission Deili Paoli’s lawyer asked, though somewhat obliquely, that all reference to his client should be “deleted,” and at the close of the evidence he moved for a mistrial among other reasons because the confession was “admitted into” (sic) “evidence without the deletion of the names.”

Beginning with Nash v. United States, 2 Cir., 54 F.2d 1006, nearly twenty-five years ago, we have recognized without reserve that after the end of any concerted action to admit in evidence the declaration of one of several defendants accused of conspiracy is in effect to accept hearsay against all but the declarant.² The reason for admitting such evidence while the defendants are acting in concert is that the declarations are considered as themselves steps in the execution of the common purposes and that the acts of one are the acts of all. In Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790, it was because the Supreme Court held that the purposes of the conspiracy had ended that the declaration was held incompetent. However, even so, if the declarant had been tried along with Krulewitch, the question would have arisen whether an admonition such as was given in the case at bar would have made her declaration, or any such declarations, “admissible as exceptions to the hearsay rule.” 336 U.S. at page 443, 69 S.Ct. at page 718. Undoubtedly the ability to introduce them adds to the inducement to sweep all those concerned in a venture into one indictment; and possibly it would have been better, had the price of the admissibility of separate declarations, made after the event, been a separate trial of the declarant; for it is indeed very hard to believe that a jury will, or for that matter can, in practice observe the admonition. Possibly it would be extreme to say that nobody can ever so far control his reasoning that he will not in some measure base his conclusion upon a part of the relevant evidence before him, which he has been told to disregard; but at least it is true that relatively few persons have any such power, involving as it does a violence to all our habitual ways of thinking. Hence, although the doctrine is well settled that such declarations are competent, provided the placebo goes along with them, there is no reason why this should be the final measure of protection granted to the defendants other than the declarant. Unhappily, it is extremely difficult to escape the dilemma that must always arise on such occasions, because on the one hand the declaration should remain unimpaired as against the declarant, and yet it must be in some measure mutilated in favor of the others. At best the solution is especially a matter for the exercise of discretion by the trial judge.

In the case at bar it appears to us plain that the expedient suggested by the appellant: i. e. to black out the names of Delli Paoli and Margiasso would have been futile. From the declaration it would then have appeared that two anonymous persons had been previously selling Whitley illicit alcohol for a month or more at the “service station” which the other witnesses had identified Margiasso and Delli Paoli as frequenting; that Whitley had met one of this unnamed couple on the night of the arrest at the “service station,” who had driven Whitley’s car away and brought it back filled with alcohol, and that after Whitley’s arrest the other one had appeared. Read upon the other evidence of the prosecution’s witnesses that had connected Delli Paoli with Margiasso and Pierro at the “service station” and elsewhere, there could not have been the slightest doubt as to whose names had been blacked out; and, even if there had been, the blacking out itself would have not only laid the doubt, but underscored the answer. Therefore, without passing on the question whether a judge than give the admonition, we are satisfied that the case at bar was not one in which the only action suggested to him may at times be called upon to do more would have been of any service to Delli Paoli.

Judgment affirmed.

1 . § 371, Title 18; §§ 2803(a), 2808(e), 2913, Title 26, U.S.Code.

2 . United States v. Gottfried, 2 Cir., 165 F.2d 360, 367; United States v. Leviton, 2 Cir., 193 F.2d 848, 855, 856; United States v. Kelinson, 2 Cir., 205 F.2d 600.