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United States v. Fioriilo

decided: April 3, 1967.

UNITED STATES OF AMERICA, APPELLEE,
v.
VINCENT M. FIORIILO, DEFENDANT-APPELLANT



Lumbard, Chief Judge, and Waterman and Smith, Circuit Judges.

Author: Smith

J. JOSEPH SMITH, Circuit Judge:

Vincent M. Fiorillo, long engaged in the garbage collection business in Westchester County and elsewhere, was convicted on trial to the jury in the United States District Court for the Southern District of New York, Edward Weinfeld, Judge, of perjury*fn1 in his testimony before a Southern District Grand Jury investigating possible violations of the Hobbs Anti-Racketeering Act in the garbage collection industry, and he appeals. We find no error and affirm the judgment.

Appellant's chief claims are insufficiency of proof and error in the charge relating to the required quantum of proof, error in refusal of a request during the trial by defense counsel that he be allowed to withdraw since he felt he should testify, violation of the Communications Act by an agent's listening in on a telephone conversation, prejudicial cross-examination of defendant, entrapment, and lack of materiality of the perjured testimony.

Before the Grand Jury, appellant testified as follows:

"Q. Now I ask you, Mr. Fiorillo, if you received a telephone call from Tony Vone in March of this year in which Vone asked you whether you had contacted Nick Perry and Tobia DeMicco concerning the permanent transfer of this Daitch stop to Vone?

A. No, sir.

Q. You never received any such telephone call from Vone? A. No, sir. From Vone?

Q. Vone. A. Not to my recollection.

Q. Are you quite sure of that?

A. I am positive.

Q. Now, do you recall telling Vone in a telephone conversation this year that you had not contacted Nick Perry or Tobia concerning the transfer of the stop, but you expected to contact them in the near future? A. Why would I want to contact them? They had no bearing on that, nothing to do with that. It was my account. I was servicing that account for Daitch-Shopwell. So why would they be involved in that? I don't know what -- where did you get the information, but it's wrong. This is my account. It's not anybody else's. It was my account, Daitch-Shopwell in Pelham and I have been doing -- I have had it for fifteen years approximately.

Q. Is it your sworn testimony, sir, that you never told Tony Vone that you were going to be contacting these other men; namely, Nick Perry and Tobia DeMicco, concerning this Daitch-Shopwell stop? A. Never.

Q. Did you ever tell Tony Vone or anybody else that you couldn't transfer this Daitch-Shopwell stop at Pelham without the consent of ...


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