Van Dusen and James Rosen, Circuit Judges, and Layton, Senior District Judge.
JAMES ROSEN, Circuit Judge.
Appellants John and Robert Rispo were found guilty of conspiring to unlawfully possess goods known to have been stolen from interstate commerce in violation of 18 U.S.C. § 371. In addition, appellant John Rispo was found guilty of the substantive offense of unlawfully taking and carrying away goods stolen from interstate commerce in violation of 18 U.S.C. § 659.
The charges arose out of the removal of a tractor trailer containing televisions and radio-phonographs worth approximately $30,000 from the Oneida Motor Freight Company terminal in Pennsauken, New Jersey, during the night of July 31, 1969. In addition to the appellants herein, four other defendants participated at various times in the events leading to the subsequent indictments, and prior to the trial, two of the defendants, Stanley L. Cohen and Harold F. Liss, pleaded guilty and agreed to testify as government witnesses against the remaining defendants, the two Rispo brothers and defendants Frank Alamia and William Calafaty.*fn1
On January 11, 1971 at a pre-trial conference at which the trial judge, counsel for the government and all of the defendants were present, disclosure was made of a possible conflict of interest in the joint representation of the Rispos by Mr. Fitzpatrick, a well known trial lawyer. He had previously represented defendant Stanley Cohen prior to and during arraignment proceedings, and might be required to cross-examine his former client about prior communications between them and possibly be obliged to testify about those communications with his former client. The trial judge nevertheless felt sure that since defendant Cohen was then represented by different counsel, any prejudice which might occur could properly be raised by respective counsel.*fn2 The court made no inquiry of appellants and did not seek their approval of the continuing representation by Mr. Fitzpatrick.
The trial took place on February 23, through 26, 1971. Only one defendant, Alamia, testified in his own behalf. Four witnesses testified for the Government, but only the testimony of the two defendants, Liss and Cohen, had a direct bearing on the movements of the other defendants after the tractor trailer was discovered missing on August 1, 1969.
It appears from the record that Stanley Cohen and Harold Liss had known each other for five years. On July 31, 1969, while Cohen was visiting Liss at his home, Liss received a phone call instructing him to meet a maroon Chrysler and a truck with the word "Oneida" on it at a location in Philadelphia. The meeting took place as planned, and Liss and Cohen then proceeded to follow the truck and the dark sedan to a Gulf service station where defendant Alamia was employed. Cohen testified that during the trip he had occasion to view the driver of the auto for a brief span, and although he did not know the driver at that time, he was given an opportunity at a later court proceeding to observe John Rispo at which time defendant Liss told him John Rispo's name.*fn3 He also testified that he thereafter saw the driver of the car at the Gulf station where they stood at some distance from each other and he only saw him for a short time. After the car and the truck arrived, the drivers of the tractor and of the car went into a diner and Liss joined them, while Cohen remained to speak with Alamia. Alamia had already agreed to have the truck kept in the back of the gas station during the night. Later, Liss and Cohen left the gas station and spent the rest of the night trying to dispose of the contents of the truck. Their efforts were not successful, and Cohen returned home at approximately 3 A.M. after promising to meet Liss at 6 A.M. that morning. He did not keep this appointment, and broke several other scheduled meetings during the course of that day. Liss then called defendant Calafaty and sought his help in transferring the contents of the trailer to three small rented trucks, for which Calafaty was to receive $200. or $300. for the day's work. The trucks were loaded and defendants Liss and Calafaty proceeded to Cohen's home, where Cohen's wife let them in and allowed them to put the merchandise in the garage and basement. When Cohen returned, Liss, Cohen and Calafaty reloaded the trucks and drove them to Westville, N. J. where one Mort Taylor offered to help find a buyer for the merchandise. Taylor was unable to find a buyer, and Cohen was then sent to Philadelphia to get $6,000. to make partial payment to the Rispos. Cohen returned home, and rented another truck in order to remove the remaining merchandise from his house. As he was leaving with the truck, he was arrested by the F.B.I.
After his arrest, and on the following day, Cohen testified that he received a phone call from a person who identified himself as Bobby Rispo. The caller allegedly demanded payment by Cohen of $6,800. and when Cohen protested, threatened reprisals against his family. The admission of this testimony produced a motion for mistrial by Mr. Fitzpatrick (representing the Rispos), because Cohen stated that he was unable to identify Robert Rispo's voice, never having spoken to him before. The motion was denied.
Liss' testimony varied somewhat from Cohen's account. He stated that when Cohen and he arrived at the Gulf station, a meeting was held at a diner across the street at which both of them, as well as Alamia, the drivers of the tractor and the car were present. A discussion took place at that time about painting out the "Oneida" sign on the trailer. Liss was unable to identify the driver of the car or the truck at the trial.
Alamia testified that he had never seen a maroon Chrysler on the date in question, and that it was Liss, Cohen and the driver of the truck who went into the diner, while Alamia remained at the gas station.
After the verdicts were returned, motions for acquittal and new trial were filed by Mr. Fitzpatrick, and were denied. After sentences were passed, and bail was increased, he withdrew his appearance on behalf of both appellants.
On August 23, 1971 counsel for appellants and for defendants Alamia and Calafaty were informed by Robert C. Ozer, Special Attorney, United States Department of Justice, that defendant William Calafaty had been a paid Government informant prior to, during and subsequent to the trial; that he had been charged in both counts of the indictment with crimes in which the Government knew Calafaty's participation to be that of a paid Government informant; and that the Government permitted the trial to proceed without informing defendants, their counsel, or the court that Calafaty's participation in the caper was at the request of the Government, and in pursuance of his function as a paid Government informant.*fn4
Trial counsel for Calafaty, who was unaware until the middle of the trial that his own client was a paid informer, filed a motion for a new trial on the ground of newly discovered evidence. This motion was disposed of at the hearing of October 5, 1971.*fn5
On October 5, 1971, the Government appeared before the trial judge in open court, acknowledged that Calafaty was a paid informant and not guilty of the charges, and joined a ...