Opinion
Nos. 8005-8009.
December 14, 1938.
Appeal from the District Court of the United States for the Southern District of Ohio; Mell G. Underwood, Judge.
Zeno Fritz, of Pittsburgh, Pa., for Albenze and Brushome.
Nolan Chestosky, of Steubenville, Ohio, for Martello, DeCara, and Traficani.
Francis C. Canny, of Dayton, Ohio, for the United States.
Before SIMONS, ALLEN, and HAMILTON, Circuit Judges.
It appearing that upon trial below for conspiracy to violate the revenue laws there was no substantial evidence upon which to submit to the jury an issue as to the guilt of the appellants Martello, DeCara, and Traficani, Cemonte v. U.S., 6 Cir., 89 F.2d 362; Nibbelink v. U.S., 6 Cir., 66 F.2d 178, and it further appearing that no brief was filed in support of the appeals of Albenze and Brushome in time for the appellee to make reply either by brief or argument at the hearing, that counsel for said appellants failed to appear, and that consideration of belated brief on their behalf discloses no clearly prejudicial error in their conviction apparent on the face of the record, it is ordered that the judgments and sentences below as to Martello, DeCara and Traficani be and they are hereby reversed and the cause as to them be remanded for new trial, and it is further ordered, on motion of the appellee that the appeals of Albenze and Brushome be and they are hereby dismissed.