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United States v. Alfano.

decided: November 21, 1945.

UNITED STATES OF AMERICA
v.
ALFANO.



Author: Mclaughlin

Before BIGGS, WALLER, and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge.

The appellant was convicted of both conspiracy to violate the White Slave Traffic Act, Section 88, 18 U.S.C.A., and the substantive offense itself, Section 398, 18 U.S.C.A. He received a prison sentence of a year and a day on each indictment with the sentences to run concurrently. The background of the case is a dreary story of commercial prostitution. The appellant denied any connection with the offenses charged.

All of the points on appeal were argued before the Trial Court on the motion for a new trial. The only important question concerns the admission into evidence of two written statements of a co-defendant, one Frank Chessario.

The first statement was made July 15, 1943. While it does not mention the defendant or refer to him, it does detail what had occurred and the association of Chessario and other defendants then on trial, with the various incidents. When the statement was offered in evidence it was objected to. The Court said: "At least it is admissible against the man who made it." The attorney for the appellant then said: "That is right; but I am objecting as to my client, and he is offering it as to all the defendants, including my client." The District Attorney then said:

"I don't think the Government is called upon to specify the offer beyond the fact it was signed by one of these defendants, as to whom we are offering it against. It is admissible in evidence as a voluntary statement made by one of the defendants, and that is all we can do at this time and all we are required to do."

The Court said:

"Of course, at the conclusion of the trial we might be able to say as a matter of law whether or not this particular statement involved anyone but the man who made it, but I don't see how we could determine that question now. The only thing we can determine now is that it is admissible in evidence at least against the man who made it. Whether it will have any further effect we will not determine at this time."

And immediately thereafter also said:

"We overrule Mr. Fritz' specific objection at this time, because the paper is admissible and jury are entitled to see it, at least so far as it involves the man who made it."

The second statement is dated September 23, 1943. Its only possible allusion to the appellant occurs in the sentence "Madaffer and I went in, and he went into the back room with a short man whose name I believe was Mike." When this statement was offered in evidence the appellant's attorney said:

"If Your Honor please, if this statement is offered only as against the defendant Chessario, of course I have no interest in that and have no objection; * * *"

Continuing he stated that if it was offered generally then he objected. The United States attorney offered the statement "for whatever evidential value it may have." The Court then announced its decision saying, "I think the papter is at least admissible as against the man who made it, and it will have to go to the jury anyway." The Court also said: "At least it (the statement) is binding upon himself, or evidence against him." The appellant's attorney took exception to the Court's rulings as to both the first and second statements.

It is not contradicted that Chessario later, as a witness in his own defense, testified fully and completely to the facts set forth in his two statements. Thereafter no point to charge in connection with the statements, was submitted to the Court. At the completion of the charge, the Trial Judge called counsel to side bar and asked: "* * * whether they have any request ...


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