Samuel J. Gallarelli, Defendant, Appellant, v. United States of America, Appellee, 248 F.2d 539 (1st Cir. 1957)

The appeal here is from a judgment of conviction, imposing penitentiary sentences, upon jury verdicts of guilty on an indictment charging conspiracy to use the United States mails to defraud, contrary to 18 U.S.C. § 371, and three indictments charging the substantive offense of using the mails to defraud, contrary to 18 U.S.C. § 1341. Appellant did not cause to be transcribed the testimony taken at a very lengthy trial so that the original papers certified by the clerk of the district court did not include a transcript of such testimony.

Appellant having filed his main brief on the merits, the Government moved to dismiss the appeal, on the ground that the original papers on file in this court and the printed record appendix furnished by appellant are insufficient to present the questions argued by appellant in his brief. Since the timely filing of appellant's notice of appeal gave this court jurisdiction, and since we thought that maybe some of the questions on appeal presented in appellant's brief might adequately be considered by us on the record appendix now before us, we set a hearing on the Government's motion to dismiss for oral argument on October 4, 1957. Along with the motion to dismiss we also called for oral argument on a motion by appellant, opposed by the Government, for enlargement on bail pending appeal. At the oral argument we made it clear to appellant that he would have to stand or fall on the record before us, and that he could not press as error any action by the trial judge which would require an examination by us of the untranscribed testimony taken at the trial. We tried, with conspicuous lack of success, to elicit from counsel for appellant what the remaining issues might be which would be regarded by him as substantial enough to warrant further oral argument.

Under the circumstances it seems to us that we ought without further ado finally to dispose of this appeal.

A judgment will be entered affirming the judgment of the District Court.