UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
May 17, 1979
UNITED STATES OF AMERICA, RESPONDENT,
JOSEPH SALVATORE COLOGNINO, APPELLANT.
Appeal from the United States District Court for the Western District of New York.
Present: HONORABLE IRVING R. KAUFMAN, Chief Judge. HONORABLE WILLIAM H. TIMBERS, Circuit Judge. HONORABLE HOWARD T. MARKEY, U.S. Court of Customs and Pattent Appeals, siting by designation.
This cause came on to be heard on the transcript of record from the United States District Court for the Western District of New York, and was argued by counsel.
ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is affirmed.
1. Implicit in Judge Curtin's ruling on the motion for a directed verdict was a finding that Colognino's participation in a conspiracy with Jackson had been demonstrated by a preponderance of the evidence independent of the hearsay declarations. See, e.g., United States v. Baker, 419 F.2d 83, 88-89 (2d Cir. 1969), cert. denied, 397 U.S. 971 (1970); United States v. Stromberg, 268 F.2d 256, 266 (2d Cir.), cert. denied, 361 U.S. 863 (1959). The decision to admit the declaration "subject to connection" was proper. United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969), cert. denied, 397 U.S. 1028 (1970).
2. The prosecutor represented, and Judge Curtin clearly believed, that dismissal of the charges against Brown could not have been made before jury selection. There was no evidence that the dismissal was timed with the intention of prejudicing Colognino's right to peremptory challenges.
© 1998 VersusLaw Inc.