Opinion
No. 300, Docket 27336.
Argued February 23, 1962.
Decided March 9, 1962.
Daniel H. Greenberg, New York City, for appellants.
Daniel P. Hollman, Asst. U.S. Atty., S.D.N.Y. (Robert M. Morgenthau, U.S. Atty., and Arnold N. Enker, Asst. U.S. Atty., S.D.N.Y., on the brief), for appellee.
Before MOORE, FRIENDLY and MARSHALL, Circuit Judges.
Appellants were both convicted of violating 18 U.S.C.A. § 371 (conspiracy to violate the alcohol tax laws of the United States) and specific substantive violations of the alcohol tax laws (appellant Verra for violations of 26 U.S.C.A. §§ 5604(a)(1) and 5205(a); appellant Piccirillo for violation of 26 U.S.C.A. §§ 5642 and 5008(b)). The indictment in this case is in seventeen counts, one count of which charged six defendants, including appellants, with conspiracy to violate the alcohol tax laws and sixteen substantive counts charging various defendants with illegal sales of alcohol in violation of 26 U.S.C.A. §§ 5205, 5604, 5642 and 5008. The jury returned a verdict of guilty against both appellants on all counts in which they were named. Verra was given concurrent sentences of two years on each of the four counts and a fine of $2,000. Piccirillo was given concurrent sentences of eighteen months on each of the five counts and a fine of $2,500. The other defendants received suspended sentences. Appellants seek a reversal on three grounds: insufficiency of the evidence, alleged inflammatory remarks of the prosecutor, and failure to charge the jury as requested by appellant Verra.
Appellants' major attack on the evidence involves the credibility of government witnesses, which is a jury question. However, we have read the entire record in the case and are convinced that the evidence was sufficient to support the verdict. See United States v. Delli Paoli, 229 F.2d 319 (2 Cir.), aff'd, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957). The objections to the argument of the prosecutor do not amount to prejudicial error. United States v. Universita, 298 F.2d 365 (2 Cir. 1962). Appellant Verra's contention that the charge to the jury, while in substantial compliance with appellant's request, was erroneous because it was not in the exact words requested is without merit. Rule 52(a), F.R.Crim.P., 18 U.S.C.A.; United States v. Arrow Packing Corp., 153 F.2d 669 (2 Cir. 1946) cert. denied 327 U.S. 805, 66 S.Ct. 962, 90 L.Ed. 1030 (1946). Affirmed.