United States v. Giampa

Citation290 F.2d 83
Decision Date03 February 1961
Docket NumberNo. 178,Docket 26295.,178
PartiesUNITED STATES of America, Appellee, v. David GIAMPA, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

George J. Todaro, New York City (Sylvester Cosentino, New York City, on the brief), for appellant.

Paul J. Curran, Asst. U. S. Atty., New York City (S. Hazard Gillespie, Jr., U. S. Atty. for Southern District of New York, David R. Hyde, Asst. U. S. Atty., New York City, of counsel), for appellee.

Before LUMBARD, Chief Judge, and WATERMAN and MOORE, Circuit Judges.

LEONARD P. MOORE, Circuit Judge.

Defendant, David Giampa, was indicted for harboring and concealing Nicholas Tolentino, a Federal fugitive (18 U.S.C. § 1071). From a judgment of conviction after a trial without a jury, defendant appeals.

The primary error asserted is that the Government failed to establish beyond a reasonable doubt that defendant knew that a warrant or process had been issued for Tolentino's arrest.

After hearing the proof, the trial judge concluded, "I entertain not the slightest doubt of his guilt, let alone a reasonable doubt, none whatsoever." There was no proof that defendant was shown the warrant for Tolentino's arrest or that he was specifically told that Tolentino was a fugitive from justice. Rare would be the case in which such direct proof would be available. The facts developed upon the trial, however, firmly support the judge's emphatic conclusion.

In October, 1958, Tolentino, a family friend, asked defendant to help him in locating an apartment. Defendant did so to the extent of signing (using his own name "David Giampa"), a lease for him and having a telephone installed in the same name. This may have been a generous gesture towards a family friend but why did Tolentino assume the name "James Gianpa" and defendant use this false name for him in dealing with the apartment landlord? If Giampa thought Tolentino were altogether free to appear in public at will, why was it necessary for defendant to shop for and carry groceries to Tolentino's place of abode several times a week? And finally although it might be characterized as a crowning act of friendship, defendant's action in attempting to bar federal narcotics agents from entering the Tolentino (Gianpa) apartment with a simultaneous friendly warning, "Run, Nick. It's the Feds.," scarcely commends itself to being, as defendant's counsel argues, "as consistent with innocence as with guilt" or merely carrying "his good will too far for a friend." In summary, there was adequate proof from which the court could properly infer knowledge and guilt beyond a reasonable doubt.

Error is also attributed to the court's failure to inspect the Grand Jury minutes of the testimony of a government narcotics agent. While the agent was on the stand, the court after a proper foundation had been laid examined and ruled upon certain reports made by the agent, production of which had been requested. Defense counsel then asked that the court look at the Grand Jury minutes. The court ruled, "Motion denied. Jencks doesn't apply to grand jury minutes" (Pittsburgh Plate Glass v. United States, 1959, 360 U.S. 395, 398, 79 S.Ct. 1237, 3 L.Ed.2d 1323), adding later, however, that this ruling did not foreclose examination if a proper foundation were established. When the agent was subsequently recalled merely to identify a document, defense counsel argued that he was entitled to see the minutes.

The law as to the production and examination of Grand Jury minutes has been considered and made the subject for discussion in a number of recent cases in this circuit on appeals from jury trials (United States v. Hernandez, 2 Cir., 1960, 282 F.2d 71; United States v. McKeever, 2 Cir., 1960, 271 F.2d 669; United States v. Zborowski, 2 Cir., 1959, 271 F.2d 661; United States v. Spangelet, 2 Cir., 1958, 258 F.2d 338; see also Jencks v. United States, 1957, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103; 18 U.S.C.A. § 3500) and in two other cases, like this one, where the case was heard below by the court sitting without a jury (United States v. Kirby, 2 Cir., 1960, 273 F.2d 956, and United States v. Santore et al., 2 Cir., 1959, 51 F.2d 290.

To avoid uncertainty in the future upon trials wherein this problem arises, certain fundamental principles should be observed. If the Government calls a witness who has given testimony before a Grand Jury, it is under a duty to have the transcript of such testimony available upon the trial. If it is then established at the trial that the witness has testified before the Grand Jury and defense counsel requests that the trial court examine...

To continue reading

Request your trial
35 cases
  • U.S. v. Silva
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • October 1, 1984
    ...States v. Kutas, 542 F.2d 527, 528 (9th Cir.1976), cert. denied, 429 U.S. 1073, 97 S.Ct. 810, 50 L.Ed.2d 790 (1977); United States v. Giampa, 290 F.2d 83, 84 (2d Cir.1961). It is equally well established that in considering the sufficiency of the evidence, we are bound to view it in the lig......
  • Dennis v. United States
    • United States
    • U.S. Supreme Court
    • June 20, 1966
    ...location of the identification mark to the defense. 21 United States v. Hernandez, 290 F.2d 86 (C.A.2d Cir. 1961); United States v. Giampa, 290 F.2d 83, 85 (C.A.2d Cir. 1961). Compare United States v. Micele, 327 F.2d 222, 226—227 (C.A.7th Cir. 1964); Ogden v. United States, 303 F.2d 724, 7......
  • U.S. v. Eaglin
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 10, 1977
    ...v. Kutas, 542 F.2d 527, 528 (9th Cir. 1976), cert. denied, 429 U.S. 1073, 97 S.Ct. 810, 50 L.Ed.2d 790 (1977); United States v. Giampa, 290 F.2d 83, 84-85 (2d Cir. 1961). And, (i)n determining the sufficiency of circumstantial evidence, the question "is not whether the evidence excludes eve......
  • United States v. Hoffa
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • July 29, 1965
    ...defense. United States v. Keegan, 331 F.2d 257 (C.A. 7, 1964) cert. denied 379 U.S. 828, 85 S.Ct. 57, 13 L.Ed.2d 37; United States v. Giampa, 290 F.2d 83 (C.A. 2, 1961). We find nothing irregular or prejudicial in the fact that Appellants Parks, Campbell and King were subpoenaed before the ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT