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United States v. Meyers

decided: August 31, 1973.

UNITED STATES OF AMERICA
v.
IRVING H. MEYERS, MURRAY E. HIRSHORN, ANTHONY H. LEMISCH, MARTIN R. SCHOTT, DAVID E. CHENOWETH, JOHN A. RAY GRIMALDI, JOHN C. WOMACK, JOSEPH DI STEFANO, DOMINICK REINA, JR., SHOUP VOTING MACHINE CORPORATION, SOUTHERN MUNICIPAL SALES, INCORPORATED JOSEPH DI STEFANO, APPELLANT IN NO. 72-2069 DOMINICK REINA, JR., APPELLANT IN NO. 72-2070 UNITED STATES OF AMERICA V. IRVING H. MEYERS, MURRAY E. HIRSHORN, ANTHONY H. LEMISCH, MARTIN R. SCHOTT, DAVID E. CHENOWETH, JOHN A. RAY GRIMALDI, JOHN C. WOMACK, JOSEPH DI STEFANO, SHOUP VOTING MACHINE CORP., SOUTHERN MUNICIPAL SALES, INC. JOSEPH DI STEFANO, APPELLANT



(D.C. Criminal No. 71-750) (D.C. Criminal No. 71-460) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.

Gibbons, Rosenn and Weis, Circuit Judges.

Author: Weis

Opinion OF THE COURT

WEIS, Circuit Judge.

The defendants Reina and DiStefano were indicted and convicted on various charges of mail fraud and conspiracy growing out of the sale of voting machines to Hillsborough County, Florida. The transactions involved bribery of local officials by the Shoup Voting Machine Company of Philadelphia and a loss to the taxpayers of Hillsborough County of about $750,000.

The details of the scheme are not particularly relevant to the issues presented in this appeal, and we will limit our review to the pertinent facts. Since the roles of DiStefano and Reina were quite different and their position on appeal somewhat adverse to each other, their cases will be treated separately.*fn1

The Reina Appeal

Reina is alleged to have participated in the scheme by permitting the use of a post office box to receive two checks, each for $20,000, from the Shoup Company destined for the co-defendant DiStefano. The post office box had been rented and used by the Reina Brothers and Company, Inc., a wholesale grocery company controlled by the defendant.

At the direction of DiStefano, the checks were made out to "Arturo Garcia, P.O. Box 5116, Tampa, Florida." The first check, which was the subject of Counts I and III, was mailed from Philadelphia on December 30, 1969 and delivered to the Reina box in Tampa.

The second check, which is the subject of Count II, was mailed from Philadelphia on March 26, 1970, was received in Nashville, Tennessee*fn2 by a representative of the Shoup Company, and was hand delivered by him to DiStefano in Tampa.

One Manuel Rodriguez, a teller at the Columbia National Bank in Tampa, testified at the trial that DiStefano and another man, not Reina, presented a check on January 2, 1970 and that it was already endorsed. Rodriguez also testified that on April 1, 1970 the two men again appeared at the Bank, the one being identified by DiStefano as "Arturo Garcia," and again a check was cashed.

The government also produced a handwriting expert who concluded that the endorsements on both checks had been made by the same person and that the signature of "Garcia" was in Reina's handwriting.

A postal clerk testified that while the defendant Reina usually picked up the mail at the post office box, on occasion other employees of the company did so. It was also shown that Reina had been friendly with DiStefano for many years.

During the trial, Reina moved for a severance on the basis that if DiStefano were called to the stand, he would testify that when the checks had been presented to Rodriguez, they were not endorsed. The motion for severance was refused, and DiStefano did not testify.

After the jury returned guilty verdicts against Reina and DiStefano*fn3 on March 15, 1972, motions for new trial were filed and at a later date, April 21, 1972, were argued before the district court. At the conclusion of the argument, defense counsel advised the court that he had just received a letter from the prosecutor stating that the state's attorney for Hillsborough County was in possession of evidence which would be helpful to Reina.

On May 30, 1972 Reina filed another motion for acquittal or for a new trial on the basis that Rodriguez's testimony had been perjured. The motion asserted that the state's attorney had recently uncovered evidence showing that DiStefano had been alone when he appeared at the bank, that when the checks had been presented, they were not endorsed, but that at a later time, at the direction of Rodriguez, one Adelaide Lee had in fact written "Garcia's" name on the back of the checks.

An evidentiary hearing was held in the district court on June 19, 1972 at which Mrs. Lee testified that the signature of "Garcia" on one check was in her handwriting and that probably ...


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