Before CHASE, CLARK and FRANK, Circuit Judges.
The three appellants were convicted after a trial by jury on an indictment charging them with having conspired, contrary to Title 18 U.S.C. § 371, to violate several sections of Title 26 U.S.C. More particularly, the first count, on which they were convicted, charged them with having conspired to operate a distillery, to manufacture distilled spirits without giving bond and to transport distilled spirits in non-taxpaid containers.*fn1
Since the sufficiency of the evidence against the appellants is not questioned, the facts shown at the trial need be related only briefly. Treasury agents testified that they observed that appellants Giallo and Valenti had for a considerable time been sending quantities of sugar periodically from New York City to the vicinity of Kingston, N.Y., in a green-colored truck. The destination of the truck was finally traced to a farm in that vicinity owned by appellant Juliano; and, on February 15, 1950, having obtained a valid search warrant, the agents searched those premises. They discovered a still set up and operating with the usual appurtenances for the distillation of spirits and arrested men working there, none of whom were the appellants. They also seized the green truck above mentioned as it was approaching the farm. Since nothing turns upon the nature of the evidence of Giallo's and Valenti's participation in the conspiracy, no outline of that is necessary.
Appellant Juliano, the owner of the farm, testified that he had been a carpenter and garage mechanic prior to buying the farm in 1946. From that year until September 1949 he lived with his wife and three children at the farm and tried to operate it; but that venture turned out unsuccessfully and he left for West Berlin, N.Y., to live in the home of a brother-in-law, leaving his tools and some other personal property at the farm. Juliano found work and went back to his farm in December, 1949, to get some of his tools. He testified that while there he met a man he didn't know but who identified himself by handing him a card with "Giallanno Trucking" printed on it. The stranger said that he was in the trucking business in Kingston and, needing storage space for trucks and his car, inquired whether he could rent the house and barn. Without learning more about the man, Juliano rented the buildings to him for $65.00 a month and received payment for a month's rent.
After that Juliano returned to the farm a few times to get more tools. He testified that he was on the way there on February 15, 1950, but neighbors nearby told him not to go to the farm because there was "trouble up there." They told him there were state troopers, federal investigators and "the biggest distillery you ever saw"; whereupon he became "panicky" and went instead to his home in West Berlin, about one hundred miles distant.
The appellants refer to various instances during the trial when the judge participated in the examination of witnesses, and they claim they add up to reversible error. We do not find it necessary to discuss those instances in detail.The record does show that the judge took an active part in the examination of witnesses which seems to have been more extensive and less even tempered than is to be commended. But we do not find here a situation comparable to that which required reversal in United States v. Marzano, 2 Cir., 149 F.2d 923. And see Billeci v. United States, 87 U.S.App.D.C. 274, 184 F.2d 394, 24 A.L.R.2d 881. Here discretion was exercised within permissible bounds, as shown by such cases as United States v. Aaron, 2 Cir., 190 F.2d 144, and Simon v. United States, 4 Cir., 123 F.2d 80.
There were two instances in which a Treasury agent, as a Government witness, gave unresponsive answers on cross-examination; and appellants Valenti and Giallo claim that the gratuitous observations injected into those answers were so prejudicial that it was erroneous for the court to deny a motion for a mistrial.
The first instance was a statement by the witness that he thought Valenti might have known him prior to his arrest. Valenti claims that it was prejudicial for the jury to know that he knew an agent of the Alcohol Tax Unit; but since the court on motion struck the statement, it does not seem at all important.
The second instance involved a question about a conversation between the witness and Giallo, and the relevant portion of the record is quoted in the margin.*fn2 The witness, not in response to the question, said, "I also told him the reason I wasn't arresting him was because he was out on bail - ." The reference was to bail for an offense other than the one specified in the indictment. The judge instructed the jury to disregard the statement, but he denied a motion for a mistrial. We do not find error in that ruling. At most the witness" statement tended to show that Giallo had been under arrest, and the jury might well have supposed that the arrest was on the indictment on which he was being tried.But his own attorney increased any likelihood of harm by making it appear of record that he was not arrested on that indictment until March 29, 1951, and in this way made it known to the jury that he had been accused of some offense other than that for which he was being tried. However that may be, we think the judge was well within the bounds of sound discretion in denying the motion for a mistrial after having instructed the jury to disregard the statement volunteered by the witness. United States v. Kushner, 2 Cir., 135 F.2d 668; certiorari denied 320 U.S. 212, 63 S. Ct. 1449, 87 L. Ed. 1850; United States v. Tramaglino, 2 Cir., 197 F.2d 928; United States v. Curzio, 3 Cir., 179 F.2d 380.
When the farm was searched on February 15, 1950, the agents found in the house a coat belonging to Juliano; and in one of the coat pockets there were invoices representing the purchase by Juliano of a septic tank, plumbing pipe, nipples and a refrigerator fan belt, all items which could be used in connection with the operation of a still. In a desk belonging to Juliano there was a scrap of paper containing the name of a person who was named in the indictment as a co-defendant. The invoices and the piece of paper were admitted as Government exhibits, and the appellant Juliano urges that such admission was error. But the invoices and paper were admissible as part of what was discovered on the premises, its weight, if any, as evidence of Juliano's participation in the conspiracy being for the jury. The fact that the government did not show that any of the materials described in the invoices were actually used in connection with the still did not affect their admissibility but only went to their weight as evidence.
After the trial had started, counsel for appellant Juliano moved to suppress the evidence obtained in the search, and he sought to excuse his failure to take such action prior to trial by showing that failure to file the search warrant and the affidavit of the Treasury agents on which it was granted had prevented earlier action. See Federal Rule of Criminal Procedure, 41(e), 18 U.S.C. Neither the affidavit nor the search warrant could be found during the trial, but a Treasury agent named Lane, who with another had executed the affidavit, testified as to what it contained; and the motion to suppress was denied. After the trial, however, copies of the warrant and supporting affidavit were found, and they were produced at a hearing at which it was found that they provided no substantial basis for the motion to suppress.
The failure to grant that motion is not claimed to have been an error. But it is claimed that there are discrepancies between Lane's statements at the trial and those he made in the affidavit, and that the failure to have the affidavit available at the trial deprived the appellant Juliano of his right to cross-examine. On this ground it is urged that the judge was in error in denying a motion for a new trial.
Lane testified at the trial that late in the afternoon of February 11, 1950, he saw the green-colored truck, already mentioned, backed up to the barn on the Juliano farm and that he heard "thuds" and men talking and saw a large spotlight on the house which went on intermittently while he was making his observations. It was in this way that the agents found out that the truck was being used to carry sugar to the farm. Lane also testified that it was his best recollection that what he ...