# Petition for Writ of Certiorari — Maloney v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0550%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 405 U.S. 1041 ## Text ~~ §2 i Ser: In The 7 Supe Court of the United States October Tem, (197 ] Nos , JOHN MALONEY, = - Petitioner, + - against - UNITED STATES OF AMERICA, e*- Respondent. PETITION FOR A WRIT OF CERTIGRARI TO THE -UNITED STATES COURT OF APPEALS FOR THE ___ SECOND CIRCUIT IRVING ANOLIK — Attomey for Petitioner 225 Broadway New York, New York 10007 (212). 732-3050 “* (4817) LUTZ APPELLATE PRINTERS, INC. Law end Finencia!l Printing | ; * South River N.I. New York, N.Y. Philadelphia, Pa. ie eee . Ra et SENDS OSS REESE MRE SPELLS APR —. | e a : TABLE OF CONTENTS ~~ ' Petition - Statement: ... ).... pe as flict Opinion Below ee ee ee ee ee * . ‘Jurisdiction ‘-- es . : a as G : a : P s Questions Presented -"...... Gah aaa Constitutional one Statutory: Provisions! In- 7 4 _ volved er ee a ee ee i ae ee ie | Statement of the Case... 2... . eee Argument: , - Point I. There was no evidence whatso- - ever that Petitioner Maloney ever’ ~ ._ bought, sold, received or otherwise ae .dealt'in the- property which was found in Di Menna’s garage., On the same | .evidence, two co-defendants had‘the indictments dismissed by the Court _ of Appeals. The Court below has per- mitted’.a conviction to stand which is predicated’.upon no evidence: whatso-. ever. The conviction is sans due | process.“ ....- lai Gel woe we tt ~~ Contents . Point II]. The petitioner was deprived of, due process of law since his convic- - | tion was based onatotaldearthofevi- °* dence.. No witness testified to any of - the facts-connecting Maloney with the crime charged except the arresting officer who merely observed Maloney for, the very first’ time when he knocked on the. door of the | garage. Possession of. lists containing none: — of the items inthe garage was no evi- - dence of guilt. ea ee leh «ewe © i. Conclusion ee ef 8 @ a ° ° « ; 2 «© «© @# # @ ~ Table of Citations CASES CITED: Baumboy v. ‘United States, 9 Cir, 2 24 F. “: [as Lg SE Tg ee ee . Coppedge ' v. United States, 369 U.S. 438 ee Hegwood v. Kindrick, (967, D.C. Tex. )264 . F. Supp. 720, TO alee ss ee a? McMillian v. United States, (5 Cir.1968) — - 399 F.2d ey MI a eS : Poldo v. United States, (9 Cir.) 05 F.2d ° ee Svante eee eee wee er United States nfo 444 F. 2d 62 (2d | ee a a ci ea Se 6 ee: i ‘Contents — STATUTES CITED: . A. | 18 U.S.C. §371 ery ae: ye. Te 18 U.S.C. $659 9 6. . 2,879, 28 U.S.C. 1254 (1) eee 2 APPENDIX. | | Opinion of-the Court Below” .. pine oie a Order of ‘the Court Below Denying Peti- tion for -a Rehearing But Granting Stay. of Mandate ee She 6 ew 8 6 ee Se 3 ; @ . Qrder of the Court Below Affirming Part and Reversing SONS 6 6 6 eee es se Re | | In The | Saprene Court of the Mrited Sine a i + October er |.) ia ° ie 7 aur JOHN MALONEY, . J = ae _ Petitioner, > - Against - ca UNITED STATES OF AMERICA, Respondent. } PETITION FORA WRIT OF CERTIORARITOTHE ° UNITED STATES COURT OF APPEALS FOR THE . _ SECOND. CIRCUIT _ pees nee Statement at eae "JOHN yea the petitioner heréin,-re- spectfully prays that this court issue a Wnt of - ' Certiorari to the United States Co rt of Appeals for. the Second Circuit to’ review ‘the order” of ‘that court which both reversed and affirmed the judgments of the United States District-Court for the’ Southern District of New York convicting ° Iw * : the petitioner of violating: 18 L "S.C. §659 and con-— spiracy to do the same, 18 U.S.C. § . 371. The Court of Appeals reversed the conviction with respect to the conspiracy, but affirmed on the substantive count. It Is significant, however, to note that the Court of Appeals reversed- both the conviction under conspifacy. and the substantive counts with respect to two other, appellants namely Vincent Santa and Albert Mercurio. | 4 Opinion Below The opinion of the Second.Circuit is reprinted in the appendix heretos N : Jurisdiction The jurisdiction of this court is invoked under 28 U.S.C. §1254 (1). The Court of Appeals, Second Circuit, denied a motion for a re-hearing and a re-hearing en banc on January 10, 1972, but stayed the mandate of the court pending certiorari. (See appendix) . Questions Presented i, Whether. petitioner> could be convicted of an anti@ipatory crime? 2. Since there was no evidence’ at all that petitioner was ever in possession of the article allegedly ‘stolen from interstate commerce, was it pdssible to’ convict him on the basis of sus- picion alone without one iota of evidence that he was ever in possession of the stolen items or that he ever offered to buy or receive them?- 3. Since it is conceded that’ Maloney never bought, received, or possessed any of the mer- chafidise found in the garage, and since it is further conceded that he was never seen at or in the garage, was it not a violation of due process to permit a conviction to stand which is clearly based upon suspicion alone?. 4. Whether transportation in intefstate com- merce can be inferred solely because,certain goods had been-loadeii on trailers in New Jersey, awaiting tractors scheduled to carry them to New York? No actual evidence that the goods were ever cagried to'New York exists. _ Constitutional and Statutory ‘Provisions involved The Fifth Amendment of the United States .Constitution and 18 U.S.C. §371 and $659 are in- volved herein. On Friday, March 21, 1969, two trailers loaded with cigarettes and health and beauty aids were stolen from the Crown Drug Stores Distribution Center in Cranford, New Jersey. The trailers were completely loaded awaiting tractors scheduled to carry the goods to retail stores in Long Island, New York. * . Five ‘days later, on March 26, 1969, a federal. ‘agent and New York City detectives, acting on. a tip from an informant, commenced a surveillance of a garage on East 172nd Street in the Bronx which had been rented by’ one DiMenna, ostensibly. . as. a warehouse for a construction busihess. . . At about 10:00 P.M., after a six hour sur- veillance, the agents found that the front door was locked, but by. peering through a window, they were able to perceive numerous cardboard cartons marked “Return to SGC Corporation” (the parent corporation of Crown Drug Stores). At 5:30 A.M. the next morning, DiMenna drove up in a car removed some of the cartons and drove off. By 9:20 A.M., another car drove up and Vilhoti, Mercurio and Santa entered the garage. At this juncture, it should be noted that Maloney - was hever seen entering the garage nor did any witness ever place him near the garage. When Viihoti opened the door in response to the agents, he was immediately arrested as were ‘Mercurio and Santa. In the back of the a was a large number of cartons which were part of the shipment stolén from Crown Drug Stores. ‘At least an hour later, while the three men were still being held in custody in the garage, appellant - “Maloney, knécked on. the 8% rage door and was ica ol arrested, A search of his person found him in possession of lists of items in his own handwriting which were somewhat similar to gaghes of lists found é in the garage under a carton.! The lists detailed items which allegedly had been in the hijacked trailers, but which supposedly had been removed from the garage. In other words, none of the items on Maloney’s lists were actually’ found in he ph Maloney” s lists also had prices hext to them representing their’ costs, but an examination of this exhibit will reveal to this court that the prices could not- have been written in Maloney’s hand-, writing. — ° In addition, Maloney was found in-possession * of the sum of $3,100.00 in cash. One-half the | value of .the merchandise represented on the lists came to $3,120.09. |. . . The governments theory was that Maloney had intended to buy these items. There was _ no evidence of this, only a surmise. Obviously, since he was-arrested the moment _ he knocked on the garage door, he had no oppor- tunity. to make any purchase at all.. Moreover there was no evidence that he had ever received or purchased or possessed any of the items that -werc : ‘stole n. At most, there was an anticipatory inference . that had Maloney been given the opportunity, he 1. The Court of Appeals. said they were “carbon onpien”, but a comparison wae, we believe, reveal differences. might have negotiated to purchase some of the items. This however was pure conjecture. The theory of the government was that since Maloney had possession of these lists, even though >» — it conceded that_none_of the items-thereon were _foundin-thé garage, that Maloney must have at one time received them. There was no evidence to substantiate. this theory since it rested upon an inference. not based upon any tangible evidence. ~ ‘ In the final analysis, therefore, . the record is . barren of any evidence tending to show that Maloney was in conspiracy with anybody; nor that he hid supplied, purchased, received or otherwise dealt in the goods which allegedly were stolen . in. interstate commerce; nor that he had in any a’ a ieee acrime. 4 — At the sory aneel, the jury might-have inferred .that Maloney came to these premises with the - intent to purchase certain items, but since he was arrested the moment he knocked on the door, and tbe other persons were already in custody, it is obvious that he*had no opportunity to even attempt this crime and this, too, therefore eee * be wholly speculative. “ » >. eA NATE SP EO REE SG. NES NS OO Argument Point 1. ‘THERE WAS NO EVIDENCE WHATSOEVER THAT -PETITIONER MALONEY EVER BOUGHT, SOLD, RECEIVED. OR OTHERWISE -DEALT IN THE PROPERTY WHICH WAS FOUND IN DI- MENNA’S GARAGE. ON THE SAME EVIDENCE, TWO CO-DEFENDANTS HAD THE INDICTMENTS DISMISSED BY THE COURT OF APPEALS. THE - ; COURT BELOW HAS PERMITTED ACONVICTION TO STAND: WHICH IS PREDICATED UPON NO EVIDENCE WHATSOEVER. THE CONVICTION IS SANS DUE PROCESS. | The Court of Appeals has reversed all of the. - judgments of conviction with respect to the con- spiracy which was. charged in ‘this indictment, and also has reversed the substantive conviction for a violation of 18U.S.C.-§659 as to areata Mercurio and Santa. -We submit that the. conviction herein is a denial of due process of law because it. rests. - _exclusively upon inference ‘based upon conjecture ‘ and not upon any evidence whatsoever. | At the outset, it cahnot be disputed that Maloney was never seen in or near DiMenna’s garage prior to the ted that he was —— ; é On the date of his arrest by the authorities, the other three co-defendants had been taken into custody at least an hour previously-and were being held captive by the authorities inside the garage: The agent who had effectuated the arrest stated that he would have taken into custody any evnmen not a pelice officer, who may have . knocked on the garage door that di iy. There were-items conti tinedih the garage which | allegedly had been stolen from Q shipment which the government claimed movedin interstate com- merce at onetime — es ad h The Only evidence against Maloney, therefore, was certain lists itemizing sundries, cosmetics and the like. which supposedly were of the same nature’ as those which had been stolen from the Crown Drug Company in New Jersey. ‘It is extremely important to note that the lists found in Maloney’s ‘possession were not . identical to the inventory of the items stolen, but rather were generically similar -because the items were similar. On page 9 of their brief in the Court of Appeals, the governnient admitted that there was “no proof that he (Maloney) bought, received or possessed the goods remaining in the garage. The _ government argued however that there’ was ‘evidence that he had bought, received and’ poSsessed goods which had previously been re- 7 moved from the garage. There is absolutely no -evidence as to what. goods were actually removed from the garage, if*any, and certainly no evigence that Maloney . removed them. : : ae There was - absolutely no proof whatsoever that — Maloney had participated in any way, Shape or form in the removal, —— or other’ dis-’ a ™ 3. = * ~. » PADRE A, LR EO RSP CUR Clete joo NK OR TELS. | position of the goods which the government claimed had previously been taken from’ the eenye*. At most, the» government had a “hunch” Or. Suspicion that Maloney was involved. In Baumboy v. United States, 9 Cir., 24 F.2d 512, the Court of Appeals stated that “even the guilty . -may not be: — on suspicion alone.” _ In Poldo v. United States,’ (9 Cir.) 55 F.2d 866, 869, the Court of Appeals also aptly asserted: “Mere suspicion is not.enough; there must be circumstances represented to the officers through the testimony of their senses suf- . ficient to ‘justify them in a good faith be- . lief and that the defendant had violated ° the law.” “In essence, the prosecution has created a “presumption of guilt” rather than attempting. to argue his case based upon the presumption of: innocence prior to verdict. a - Ironically, in the case of the co-defendants, Santa and Mercurio, the Court of Appeals declared (slip opinion p. 895): ° “It is well -settled that in order to justify a conviction for receiving or possessing stolen goods under 8659, the government ‘must establish. that the defendants exer- . cise ‘dominion or cofftrol’..over the goods. In United States vy. Kearse, 444 F.2d 62 _ (2d Cir. 1971) this court recently held that a.defendant’s mere presence six feet away from 40 cartons of stolen merchan- x. Pon 10 disé, ... was insufficient basis to warrant a conviction for possession under the statute.” Notwithstanding its own language concerning the co-defendants, the court nevertheless applied. a completely different doctrine’ with respect to the petitioner herein. 2 We submit also that an examination of the exhibit containing the lists which were found in the possession of. Maloney, will reveal that the prices were in a different handwriting. Even if this had ‘not been the case however, how in the..world can there be an inference of guilt efrom the mere possession of such. lists when admittedly none of -the items contained. in the garage were on the lists? ‘The government merely surmised that because some items allegedly had been removed, that Maloney had removed them. ’ There was absolutely no evidence of this! What happened in the case at bar, is that the government “suspected” -that Maloney had been involved, but failed completely to produce proof of this - fact. In McMillian_v. United States, (5 Cir..1968) 399 F.2d 478, 479, the Courtof _ ‘Appeals quite aptly declared that proof must be ‘ of such probative force as to lead with reasonable | certainty to the inference of guilt and must do more than create a mere suspicion. 2..Sinece Maloney received a seven year sentence, the error is_ \ very grave, : ’ - = e 3. Only Di Menna was seen removing cartons. — e.2 3 Se coNeNtep gece cea a, AyD cise A SER a © : Ma: It is incredible that a Court of Appeals could have come to the conclusion that the evidence was insufficient: as to the co-defendants Santa and Mercurio who were found inside the premises when arrested,- and who had been seen near the premises previously and yet determine that there - was enough evidence against the petitioner. We defy the government. to point out sngthhig .in the record that supports. their supposition that _ petitioner herein in any way, shape or form re- ceived or in any other way, dealt with the mer-‘ chandise which the government claims had been previously removed from the garage. Certainly the petitioner had never been found in possession or. in-control of any of these items. Point Il. - THE PETITIONER WAS DEPRIVED OF. DUE PROCESS OF LAW SINCE HIS'‘CONVICTION WAS. BASED ON..A TOTAL. DEARTH OF EVIDENCE. NO WITNESS TESTIFIED TO ANY OF THE FACTS CONNECTING MALONEY WITH THE CRIME '~CHARGED EXCEPT THE ARRESTING OFFICER WHO MERELY OBSERVED MALONEY FOR THE | VERY FIRST TIME WHEN HE KNOCKED ON THE DOOR OF THE GARAGE. POSSESSION OF LISTS CONTAINING NONE OF THE ITEMS IN THE . . GARAGE WAS NO EVIDENCE OF GUILT. It is respectfully submitted that due process. of law was éviolated in connection: with the.con- viction in this case. The Court- of Appeals. _ reversed the convictions of two of the_co-. defendants, Santa and Mercurio, on the grounds - ‘a total lack of evidehce. ~All of the defendants including the petitioner herein, received a Tre- ~~ versal with respect to the conspiracy count.. lo i 9 ‘; = =e It is respectfully submitted that there was no . ‘evidence tending to connect petitioner with the substantive count of receiving or possessing the _ alleged stolen items. In the preceding point, * we have already noted the total dearth of evidence implicating Maloney.- In Coppedge v. United States, 369 U.S. 438, the Supreme Court of: the United States explained and cautioned:. sa at 449): “When society. ‘acts to deprive one of its ‘members of life, liberty or property, ° i$” takes its most awesome Steps. No general © respect for, nor adherence to, the law as” a whole can well be expected without need _ for-profnpt, eminently fair and sober criminal ~~ law procedures... The methods ‘we employ: — in the enforcement of our criminal law have . aptly been aalled measures by which the quality_ of our civilization may be judged.” In Hegwood v. Kindrick (967, DC Tex.) 264 F. Supe. 720, 7.26 the court anne ey emplaingd: “Any proceeding by which a United States citizen, regardless of age, is deprived of his liberty musf be conducted in accordance with due process of law. This is true regardless of whether the proceedings are characterized. as civil or’ criminal and irrespective of any additional rights de-. rived in the sections of the Constitution? . . In order to’ determine whether a par- Ps) ae eae ee gee 13 ticular individual has been duncwed of his liberty wit out due process of law, the court. must measure’ ‘the procedurés in each‘case _ against our traditional notions of funda-~ mental fairness and-fair play... a . “In effect there has been a prequhption of guilt employed in the case at bar not the required — of innocence. Conclusion The Petition should be granted. The judgment of conviction should be reversed and the indictment dismissed, =“ _ Respectfully submitted, IRVING ANOLIK , , nth Attorney for Petitioner ‘ ec Nat cmt | c . . ° * . a . . - . aa %~e oe © . = * 7 tu APPENDIX Opinion of the Court Below m UNITED STATES COURT OF APPEALS ~ | For THE Secoxp Circvrr —— -—-o-r Nos. 202, 291, 37, 358—September Term, 197. (Argued November 17, 1971 Decided December 10, 3971.) Docket Nos. 71-1766, 71-1779, . 71-1827, 71-2013 ~ ~—-_- - > - U xiter States of AMERICA, A ppellee : —against— ' d Rrpo.eu Vitnotti, Vixcent Santa, eg ALBERT Mercrrio and Jons Matoxey, Defendants-Appellants. Before: . Moorr, Hays and Mriumasx, € = Circuit Judaes. : ——— —-_—~—»> > Appeal from jndgments- of conviction entered after. a joint jury trial in the United States District Court for the Southern District of New York, Harold R. Tyler, Jr., Judge, for violation of 18 U.S.C. (659 and $2 (possession of chat tels stolen from an interstate shipme nt) and 18 U.S.C. 6371- (congpiracy). Affirmed in part and reve ‘rsed in part. —— ~ -... ° Opinion beac: aa * Joti W. Nieuos, dr. Assisfant United States Attorney, New York, N. Y. (Whitney North Seymour, Jr., United States Attorney, Wil - liam -B. Gray,~Assistant United States At- terney, New York, N. Y.; of counsel), for ° Appellee. Tromas Day Epw ARDS, New York, N. Y.,- for " e | Appellant Vilhotti. Jenowe, Lewis {Thomas R. Newman, Benjamin . He Sif, of counsel), for Appellant Stata. @c stave HT, Newman (Evseroff, Newman & Son- etishine, William Sonenshine, New York, » N, Y., of-counsel), for “Appe Want Me reurio. . iecese Axouik, New York, N. Y., for Appeltant Maloney. - 4 e ” Meiauicas, Circuit Judge: Appellants Rudolph Vilhotti, Vincent Santa, Albert Mer- curio and Jolin Maloney appeal from judgments of convie-- tion under count one of an indictment charging violations of. 1s - S.C. 6: 59. and *2 (buying, receiving or having in their possession chattels stolen from an interstate. ship- | ment), and under, count two, violations of 18 U.S.C. 6371 (consp:ring to buy, receive or possess such chattels). Judgments of conviction. were entered on July 12, 19714 after a five day joint jury trial béfore Hon. Harold R.. Tyler, Jr., United States District Judge in the Southern District of New York. Sentence was imposed as follows:- Vilbotti—five vears an cach count to run concurrently; Santa—-four years on cach count to run concurrently; Mer- _curio—three years on each count to run coneurrently; Ma- loney. ss Ven years on count ous and five years on count ee ae . 7 Opinion two to run concurrently: We reverse the convictions of Santa-and Mercurio on both counts. We affirm the convic- tion of Vilhotti and Maloney dn count one and reverse and dismiss on count two. * On Friday, March 21, 1969 two trailers loaded with ciga- rettes and health and beauty aids were stolen from the Crown Drug Stores Distribution Center in Cranford, New. Jersey.” The trailers were completely. loaded aw aiting trac-" tors scheduled to carry the goods to retail stores in Long Island, New York.’ Five days later, on March 26, 1969 a federal agent and New York City detectives, acting on a_ tip from an informant, commenced a surveillance of a ga- rage on ‘Kast 972d Street in the Bronx which had been rented by one DiMenna, ostensibly as a warehouse for a construction business. At about 10:00 p.m., after a six hour surveillance, the agents found that .the front door was locked but by peering through a window were able to see numerdus cardboard cartons marked “Return to SGC Cor- - poration” (the parent corporation of Crown Drug Stores).~ * At 5:30 a.m. the next morning, DiMenna drove up in a car,” removed some ofthe carton® and drove off. At abont 9:20 a.m. another car drove up, and Vilhotti, Mercurio and Santa entered the garage. The agents found that the door was still locked But gained entry when Vilhotti opened the door ‘from the inside. He was immediately arrested, and Mer- curio and Santa were arrested inside the garage. In the back of the garage was.a large number of cartons which were part of the shipment stolen from Crown Drug Stores.. ‘In addition, the. agents found labels which had heen Te- -1- This cogstituted an effective delivery of the poods to the carrier, suffi- cient to render the goods part of interstate commerce as required by the statute. United States v. Gollin, 166 F.2d 123 (3d Cir. 1947), cert. denied, 333 U.S. 875 (1948) :. see United States v. Beraer, 33s F.2d 485 (2d Cir. 1964), cert. denied, 380 U.S. 923 (1965): United States v. Cousins, 427 F.2d ose, BR5 (9th Cir. 1970). Opinion moved from cartons stolen from a Connecticut terminal in December, 1968. About an hour later, while the three men were being held in custody m the garage, appellant Maloney knocked | — at the garage deer, Maloney wag promptly arrested, searched and found in possession © lists of items, in his*> own handwriting, which were carbo copies of lists found’ in the. garege under a.cartom. Tht lists, detailad’ items - which had been in the hijacked trailers but whieh had heen removed ‘from the’ garage. Maloney’s lists also had prices next fo the items representing their. cost. These items were totalled and/div ided in half. -The’ sum of $550 was added, making a total of $312009. The sum of "$3100 in cash was found in Maloney’s possession. as The government’s:theory was that .DiMenna, who was also indicted but died” before trial, was using the Bronx | garage as.a storage place for zoods | from the hijacked trucks. “There ‘was festimony that trucks were driven into ‘the-garage almost daily, remained for periods of a quarter of an hour te an hour and were then driven away. There War no ev idenge te . 924. (1971) which involved a eonspiracy to violate 18 __ U.S.C. ‘2814 (inter ‘state transportation of stolen securi- - ties). Ww hile: that ease does hold that intent to transport: ~~ securities | in: interstate commerce is not egsential for con- o - Vhe Sttictin betueen Hh gereral eriminal inllews necessary for the " completed aet of monopolizations under Seetion 2 of the Sherman Act and the “reef intent requisite for the inehcate attempt.or eonspiracy : : ‘to monopolize was-again made clear by Judge Learned Hand in United : States v. Aluminuia Co, of America, 148 F.2d 416, 431-32 (2d Cir. 1945) ; whieh wns decided just a few niths after his decisicn in Bnited States v. Bollenbach, supra. > i . fion of a conspiracy and thus. is contra to Crimmins ‘shiish it does not ‘diseuss ) the court further found that the defendant was.aware of the interstate activities in any event. Id. at 893. Moreover, thé court .does cite Pereira v. United States, 347 U.S. 1, 12-13 (1954) where the Supreme Court’s discussion clearly assumes that an agreement to j transport stolen property in interstate commerce is neces-— sary in order to find a conspiracy to violate Section 2314. In fact, in that ease the dissent of Mr. Justice Minton, _ joined in by Justices Black and Douglas, is based on their belief that the:government failed to establish this-element _with respect to one of the conspirators. Id. at 14-15.2 . The convictions of Santa and Mercurio are reversed and dismissed. The: convictions of. Vilhotti and Maloney are affirmed on the substantive count and reversed and dis- missed on the conspiracy count. ———______— é ‘ ' 3 The government's citation of United States v. Blassingame, .427 F.2d 329 (2d Cir, 1970), cert, denied? 402 U.S. 945,(1971) ; United: States: ,™: Kaufman, 429 F.2k 240, 245. (2d Cir.), cert. denied, 400 U.S..925 * (1970) and United States v. pagers 439 B:2d 854, 862 (2d Cir. 1971), \ cert. denied, 40 U.S.L:W. 3162 (U.S. Oct! 12, 1971) ts not persuasive-at all since the interstate intent Prue ssion .in each case involved the sub- - stantive count and not the conspiracy. Tt ig conceded that.no sueh intent ss necessiry Ser: the completed crime ufder Seetion 659, - | . 6 Rudolph Vilhotti, Vincent Santa, oan 10a Order of the Court Below Denying Petition : _ for a Rehearing But Granting Stay of Mandate - _ T1-1766, 71-1779, 71-1827, 71-2013 UNITED STATES COURT-OF APPEALS » SECOND: CIRCUIT ee ee ee ee ee YS ee ee Xx United’ States of America, * ~ Plaintiff- Appéllee, er ee * Albert Mercurio, John Maloney, ; Alexander Di Giacomo, Anthony Di Menna T/N Salvatore Germani, Defendants; Rudolph Vilkotti, Vincent Santa, Albert Mercurio and John Maloney, . Defendants- ~Appellants, A petition for a rehearing together with a motion in the alternative to stay the issuance. of the mandate pending applic: ation for a writ of certiorari to the Supreme Court of the United - States having been filed herein by. counsel for the . a kainic ccna hia de | Upon consideration thereof, it is te _ January 10, 1972. . ty ”* BF, ee : : x Ila’ ait \ - Order of the Court.Below Denying srs: P Sor a. . . 3 Ordered that said petition be and it hereby is denied, as to- — granted as to stay of “mandate. ‘ ! s/ Leon P. Moore Leon P. Moore : P s/ Paul R. Hays Paul R. Hays _s/ William H. Mulligan» William H. Mulligan — 1 BE Circuit Judges | pauses Order of the Court Below Affirming Part and Reversing Part ° ‘ITED STATES COURT OF APPEALS for the SECOND. CIRCUIT” i Os ” At a Stated Term of the United States Court of - Appeals, in and for the Second Circuit, held at the .United States Courthouse in the City of New York, : on the tenth day of December one thousand nine’ “ «VW _ hundred and seventy-one, ~ > fi e > ¢ ® l2a ‘ Order of the Court Below Affirming Part Present: — Me ee e HON. LEONARD P. MCCPE ut Te HCN, PAUL R. ‘WAYS HON. WILLIAM HUGHES MIL LIGAN e He Circuit Judges.” ; ,[Same Title) | Appeal from the United States District Court for the Southern District of New York. This cause cane dn totic heard nscript of, record ftom the “United Stajes District Court for the “Southern District ew York, and was - argued by counsel. ee ee .. §CON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that- the judgments of said District Court be apd they - hereby are reversed as to appellants Vincent . Santa and Albert Mercurio but as to appellants _ Rudolph Vilbott and John Maloney said judgments . be and they hereby are affirmeg in part and re- wreed in part in accordance with the ee of thts Court. a To a s/ A. Daniel Fusaro °.@ . Clerk --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0550%3A1. Public record. Not legal advice.