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United States v. Barbone

October 20, 1960

UNITED STATES OF AMERICA,
v.
NICHOLAS BARBONE, APPELLANT IN NO. 13,189, ALBERT DI MICHELE, APPELLANT IN NO. 13,190, IGNATIUS ESPOSITO, APPELLANT IN NO. 13,191, MICHAEL PISANO, APPELLANT IN NO. 13,192, LOUIS DICCIO, APPELLANT IN NO. 13,193, MICHAEL LETTERA, APPELLANT IN NO. 13,194, JOSEPH PAGANO, APPELLANT IN NO. 13,195.



Author: Mclaughlin

Before GOODRICH, McLAUGHLIN and STALEY, Circuit Judges.

McLAUGHLIN, Circuit Judge.

Appellants together with seven other persons were charged in a four count indictment with conspiracy to operate, etc., as well as the substantive crime of operating an illicit still.*fn1

During the trial, three of the defendants, Carmen Bruno, Samuel Coraluzzo and Albert Marzullo were acquitted on motion. Another defendant, Anthony Lampone, was granted a severance prior to trial. The jury returned a verdict of guilty on Count 1 of the indictment against Francis La Macchia and a verdict of guilty on all four counts against the seven appellants and two other defendants, Joseph La Macchia and Louis Orseno. Francis La Macchia, Joseph La Macchia and Louis Orseno, have not joined in this appeal.

Error is alleged in the court's refusal to grant a mistrial, when on recross-examination, the government's main witness, Emidio Teti, answered that he had been threatened. A review of Teti's testimony and the circumstances surrounding his answer demonstrates that the trial judge's denial of the motion for mistrial was correct.

Teti testified that sometime during March 1958, he was introduced to appellants Esposito and Barbone and was employed by them as a truck driver. He testified that at Esposito's request, he came to Philadelphia and met there with another of appellants, Pagano, and that a tractor was purchased and titled in his name by Pagano. Subsequently a trailer was obtained by a similar arrangement. With this equipment, under the direction of Esposito, Teti would pick up and load sugar and other raw materials at a garage on Queen Street in Philadelphia, Pennsylvania and transport them to the still in Vineland, New Jersey. At the still, he would unload the raw materials, load alcohol on the trailer and return to the Queen Street garage. He clearly identified each of the defendants and described their participation in the conspiracy.

In their effort to discredit Teti counsel for the defendants extensively cross-examined him, placing particular emphasis on the circumstances surrounding the voluntary statements given to the Alcohol Tax Unit agents by him; his close contact with those agents; the witness fees he received; and other collateral inquiries not pertinent now. The cross-examination was persistent and minutely probing. It searched every aspect of the relationship between Teti and the agents in the endeavor to establish that the witness had been coached and influenced by them. At one stage, defense counsel bluntly asked the following questions, eliciting a No answer in each instance: "Are you on the payroll of the Alcohol Tax Unit?"; "Are you what they call a paid informer?"; "You have never been a paid informer?"; "Are you what they sometimes call a special agent in special cases who gets paid a certain amount of money for whatever you may be able to do?" Although the record is choked with such innuendos, Teti's testimony throughout the cross-examination fails to lend them the slightest credence. There was no attempt by the defense to offer any affirmative evidence in support of its questions along this line.

In his redirect examination Teti clarified certain portions of his testimony and re-affirmed the absence of any coaching or other undue influence.

On recross-examination the tactic utilized by defense counsel on cross-examination, was resumed. In response to defense counsel's questions Teti said that on the previous day when the court was not in session, an agent of the Alcohol Tax Unit had gone to Teti's home to pick him up and to give him certain witness fees. As the attorney insisted on further details of the association of the witness with the Alcohol Tax agents and the reasons therefore, the testimony continued:

"Q. And where did you meet him? You must have met him sometime that day. Now, tell us where you first met him that day. A. I met him in my home

"Q. He came down to your home on Friday, you mean, is that right? A. Yes.

"Q. What time did he come down to your home? A. I don't recall the time, but I would say it was about 9:00 o'clock in the morning.

"Q. Now, were you dressed when he came there or had you expected him there? A. I ...


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