United States v. Cioffi

• Decision Date: 16 July 1973
• Docket Number: 73-1257.,No. 984,985. Indexes 73-1339,984
• Citation: 487 F.2d 492
• Parties: UNITED STATES of America, Appellee, v. Pasquale CIOFFI and Eugene Robert Ciuzio, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

487 F.2d 492 (1973)

UNITED STATES of America, Appellee, v. Pasquale CIOFFI and Eugene Robert Ciuzio, Appellants.

Nos. 984, 985. Indexes 73-1339, 73-1257.

United States Court of Appeals, Second Circuit.

Argued June 21, 1973.

Decided July 16, 1973.

Rehearing Denied October 1, 1973.

COPYRIGHT MATERIAL OMITTED

Joel A. Brenner, Mineola, N. Y. (Richard I. Rosenkranz, New York City, of counsel), for appellants.

Peter M. Shannon, Dept. of Justice, Washington, D. C. (Robert Morse, U. S. Atty., E. D. N. Y., and Sidney M. Glazer, Washington, D. C., of counsel), for appellee.

Before FRIENDLY, FEINBERG and MANSFIELD, Circuit Judges.

FRIENDLY, Circuit Judge:

Count 1 of the indictment in this case charged that appellants Cioffi and Ciuzio "knowingly did possess with intent to use and sell, approximately four hundred forged and counterfeited postage stamps of the denomination of six cents" in violation of 18 U.S.C. § 501; count 2 charged that they had conspired to violate the same section by agreeing to commit the acts set forth in count 1. After trial before Judge Dooling and a jury in the District Court for the Eastern District of New York, they were convicted on both counts and were given concurrent sentences.

The Government's evidence was as follows: On October 2, 1970, Michael Fiore, an acquaintance of Cioffi and Ciuzio, met them at Cioffi's barber shop in Plainview, N. Y. Cioffi told Fiore he had some counterfeit stamps and money and asked if Fiore knew anyone who would take the contraband out of the country. Cioffi then handed him a sheet of 100 6¢ stamps and a $100 bill and told him to give the stamps to "your man" and see if he was interested.

Shortly thereafter Fiore met with Secret Service Agent Daniel Marchitello and two other investigators. He told Marchitello that Cioffi and Ciuzio were selling counterfeit stamps and showed him the 100 stamp sample. Marchitello took 50 and gave the other 50 back to Fiore. That evening Marchitello and Fiore met Cioffi and Ciuzio outside the barber shop. Fiore introduced Marchitello as "my man here from Cuba," and the defendants agreed to speak with him. Cioffi said he had $500,000 worth of counterfeit 6¢ stamps and asked if Marchitello could obtain a perforating machine. After a brief negotiation over the price, Ciuzio agreed to a figure of 1½¢ per stamp if Marchitello would buy a large number and take them out of the country. During the discussion, Cioffi indicated that in addition to the stamps, he could produce between $5,000,000 and $15,000,000 of counterfeit currency. If Marchitello would agree to purchase the stamps, Cioffi told him, he would not require him to put up any "front money" for the currency. Marchitello then asked Cioffi for a sample sheet to try on his perforating machine and Cioffi sent Ciuzio to pick one up. Cioffi told Marchitello he wanted a commitment on the stamp purchase as soon as possible; Marchitello agreed to contact his own people and get back to Cioffi later. Ciuzio then returned, handed Marchitello a sheet of 400 counterfeit 6¢ stamps, and demanded an answer by 11 A.M. the next day. Because he feared possible interference with another agent's investigation, Marchitello never reestablished contact with either Cioffi or Ciuzio.

Testifying in their own defense, appellants denied that these events had occurred. They attempted to impeach Marchitello's testimony by focusing on certain inconsistencies in his account of the events of October 2, and attacked Fiore's testimony on the ground that there was bad blood between Cioffi and Fiore because Fiore had refused to repay $2,000 that Cioffi had lent him.

I.

We must first consider various contentions of appellants based on their earlier trial for a related offense. The earlier prosecution was also brought on a two count indictment and concerned the very same course of conduct. The first count charged that Cioffi and Ciuzio had attempted to sell stamps they knew to be falsely made, forged and counterfeited, in violation of 18 U.S.C. § 472;¹ the second count charged a conspiracy to violate the same section. The alleged overt acts were the same in both indictments. The evidence at the trial under the § 472 indictment, also before Judge Dooling, was much the same as under the § 501 indictment.

At the close of the first trial the judge granted a motion by Cioffi for acquittal on the substantive count. Although we might well have concluded otherwise, Judge Dooling ruled that the Government's evidence was insufficient to show an attempt to sell the stamps. The Government then moved for dismissal of the substantive count as to Ciuzio and this was granted.² The jury hung on the conspiracy count. Instead of seeking a retrial on that count, the Government abandoned its efforts under § 472 and procured the instant indictment under § 501. Defendants claim that the second prosecution was barred by the Double Jeopardy clause or, in the alternative, that most of the Government's evidence should have been excluded on grounds of collateral estoppel, see Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); United States v. Kramer, 289 F.2d 909 (2 Cir. 1961).

The double jeopardy question with respect to the substantive count of the second indictment is not free from difficulty. If the true test remains Chief Justice Shaw's famous formulation in Morey v. Commonwealth, 108 Mass. 433, 434 (1871), quoted with approval in Ex parte Nielsen, 131 U.S. 176, 187-188, 9 S.Ct. 672, 33 L.Ed. 118 (1889); Carter v. McClaughry, 183 U.S. 365, 395, 22 S.Ct. 181, 46 L.Ed. 236 (1902); Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 55 L.Ed. 489 (1911); Ebeling v. Morgan, 237 U.S. 625, 630-631, 35 S.Ct. 710, 59 L.Ed. 1151 (1915); and Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), namely, that "the evidence required to support a conviction upon one of them the indictments would have been sufficient to warrant a conviction upon the other," the double jeopardy defense must fail. Proof of possession with intent to use or sell is sufficient to support a conviction under § 501, but it would not satisfy the requirements of the charge made under § 472 unless the intent to sell ripened into an attempt. Moreover, proof of an attempt to sell, without evidence of possession,³ would suffice for a conviction under § 472 but not under § 501.

Although this formulation has never been expressly rejected by the Supreme Court or this circuit, it has been subject to serious criticism.⁴ Moreover, the Supreme Court has rather conspicuously refrained from employing the Morey formulation in recent cases such as United States v. Ewell, 383 U.S. 116, 124-25, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); Waller v. Florida, 397 U.S. 387, 390, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970); and Robinson v. Neil, 409 U.S. 505, 511, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973). In at least two cases, Petite v. United States, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960), and Marakar v. United States, 370 U.S. 723, 82 S.Ct. 1573, 8 L.Ed.2d 803 (1962), the Government has avoided testing the continued validity of the traditional formulation by requesting the dismissal of convictions that might have called for reconsideration of the Morey rule. The Government there insisted that its requests for dismissals were based, not on a violation of double jeopardy principles, but on its own policy "that several offenses arising out of a single transaction should be alleged and tried together and should not be made the basis of multiple prosecutions, a policy dictated by considerations both of fairness to defendants and of efficient and orderly law enforcement," 361 U.S. at 530, 80 S.Ct. at 451. In both Petite and Marakar, three Justices would have rejected the Government's "policy of fairness" approach and would have based reversal directly on the Double Jeopardy clause.⁵ In United States v. Sabella, 272 F.2d 206, 211 (2 Cir. 1959), we held that the Double Jeopardy clause prohibited a second prosecution after a conviction stemming from the same narcotics sale. Although this court there reaffirmed the Morey doctrine, we refused to extend it to the point of rigid formalism. While the two charged offenses in Sabella each technically included one unique element, the Government was not required to prove either in order to make out a prima facie case. In effect, then, the same proof could support both convictions.⁶ In view of the shadow that has been cast over Morey, one is justified in speculating that, unless prosecutors take to heart the recommendations for joinder of all offenses arising out of the same criminal episode or transaction,⁷ double jeopardy will be a fertile ground for Supreme Court development in the next decade.

Whatever the future of the Morey formulation may be in the Supreme Court, the facts of this case afford no such temptation to temper it as existed in Sabella. The very basis for the acquittal in the first trial was the judge's belief that the Government had not presented sufficient evidence to show an attempt to sell; he thought apparently that the evidence showed only possession, but that the defendants' alleged acts had not gone far enough to constitute an attempt. There was thus no bar to a new prosecution under § 501 unless, which appellants have not contended and, because of the required showing of possession, could not reasonably contend, the latter was a lesser included offense.

In any event, if the concurrent sentence doctrine retains some vitality after Benton v. Maryland, 395 U.S. 784, 789-92, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), compare United States v. Febre, 425 F.2d 107, 113 (2 Cir.), cert. denied, 400 U.S. 849, 91 S.Ct. 40, 27 L.Ed.2d 87 (1970); United States v. Gaines, 460 F.2d 176, 178-80 (2 Cir.), cert. denied, 409 U.S. 883, 93 S.Ct. 172, 34 L.Ed.2d 139 (1972), the double jeopardy objection to the substantive count under § 501 is of little practical importance. The acquittal under the...