U.S. v. Strahl, s. 77-1424

• Citation: 590 F.2d 10
• Decision Date: 21 February 1979
• Docket Number: Nos. 77-1424,77-1425,s. 77-1424
• Parties: 3 Fed. R. Evid. Serv. 463 UNITED STATES of America, Appellee, v. Arthur J. STRAHL, Defendant, Appellant. UNITED STATES of America, Appellee, v. Joseph V. PUZZANGARA, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 10

590 F.2d 10

3 Fed. R. Evid. Serv. 463

UNITED STATES of America, Appellee, v. Arthur J. STRAHL, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Joseph V. PUZZANGARA, Defendant, Appellant.

Nos. 77-1424, 77-1425.

United States Court of Appeals First Circuit.

Argued Sept. 7, 1978.

Decided Dec. 26, 1978.

Certiorari Denied Feb. 21, 1979.

See 99 S.Ct. 1237.

Joseph J. Balliro, Boston, Mass., with whom Mark G. Miliotis, Melrose, Mass., was on brief, for appellant Arthur Strahl.

Harvey Brower, Lawrence, Mass., appearing for appellant Joseph Puzzangara.

Kevin J. O'Dea, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, KUNZIG, ^* Judge, Court of Claims, DUMBAULD, ^** Senior District Judge.

COFFIN, Chief Judge.

Appellant Strahl appeals from his conviction of possession of a $5,000 United States Treasury note stolen from the United States mails, of counterfeiting and conspiring to counterfeit approximately $700,000 worth of $5,000 Treasury notes, and of possessing, concealing, and attempting to pass the counterfeited notes, 18 U.S.C. §§ 371, 471, 472, 1708. He was sentenced, after a jury trial, to four years imprisonment on the conspiracy count, with sentences of the same duration on the other charges to run concurrently. Appellant Puzzangara, a co-defendant of Strahl at trial, was found guilty of possession of the stolen note and the conspiracy charge and sentenced to five years imprisonment and a consecutive five year suspended sentence with probation. Both appeal from the judgments of conviction, challenging the admissibility of certain evidence at trial and the government's failure to produce several "statements", allegedly in violation of the Jencks Act, 18 U.S.C. § 3500.

1. The attorney-client privilege

At trial the government called as a witness one Markella, an attorney of Strahl over a number of years. Over defense attorneys' repeated objections, Markella was allowed to identify Strahl as the man who had given him, in partial payments for legal fees or debts owed, the stolen Treasury note in question. ¹ Appellant argues that although the identity of the client and payment of fees generally are not within the attorney-client privilege (which protects confidential Communications ), United States v. Hodge and Zweig, 548 F.2d 1347, 1353 (9th Cir. 1977); In re Grand Jury Proceedings, 517 F.2d 666, 670-71 & n. 2 (5th Cir. 1975), the facts of this case remove it from the general rule.

Beginning with the often cited case of Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960), courts have recognized an exception to this general rule when "the identification of a client may amount to the prejudicial disclosure of a confidential communication, as where the substance of a disclosure has already been revealed but not its source." Colton v. United States, 306 F.2d 633, 637 (2d Cir. 1962). See In re Grand Jury Proceedings, supra, 517 F.2d at 671-72; NLRB v. Harvey, 349 F.2d 900, 905 (4th Cir. 1965). In Baird in IRS summons sought disclosure of the identity of the clients on whose behalf the attorney had made an anonymous tax payment, 279 F.2d at 625. The court held that the attorney need not disclose the identity of his clients, citing the particular facts of the case, Id. at 631.

We find the Baird case distinguishable from this one. In Baird, "disclosure of (the identity) of the client would (have) implicate(d) that client in the very criminal activity for which legal advice was sought." United States v. Hodge and Zweig, supra, 548 F.2d at 1353. There is no indication, either in the briefs or the record, that appellant Strahl went to Markella for legal advice concerning his counterfeiting activities and disclosed confidential information to him. The testimony at trial indicates that the stolen Treasury note was passed to Markella as payment for past legal fees which had accumulated or to satisfy an unrelated debt.

We can find no furtherance of the policies behind the attorney-client privilege, See United States v. Fisher, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976); United States v. Osborn, 561 F.2d 1334, 1339 (9th Cir. 1977), that would result from shielding the payment of an attorney with stolen goods a fraudulent act as well as a convenient means of unloading highly incriminating evidence, possession of which was itself a crime, 18 U.S.C. § 1708. Accordingly we hold that the attorney-client privilege was not violated when Markella testified that Strahl was the person who passed the stolen note to him.

2. The relevance of seized counterfeited notes

Appellants contend that the trial court erred in admitting into evidence testimony by a Secret Service agent and records showing that approximately 140 counterfeit $5,000 United States Treasury notes had been seized in Florida and Maryland, that they had been produced from the genuine note that had been passed from Strahl to Markella, and that before the seizure of these same notes, no other counterfeit $5,000 notes had come to the attention of the Secret Service. At trial and on appeal, appellants contested the relevance of the seized counterfeit notes, Fed.R.Evid. 401, 402, 403.

Wide discretion as to the relevancy of evidence is vested in the trial judge, both as to its probative value and its prejudicial impact. United States v. DeVincent, 546 F.2d 452, 457 (1st Cir. 1976); United States v. Cowden, 545 F.2d 257, 268 (1st Cir. 1976), and we cannot say that that discretion was in any way abused here. It is clear without further elaboration that the existence of these counterfeited notes and testimony linking them to appellants constituted "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable . . . than it would be without the evidence." Fed.R.Evid. 401.

3. Competency of government witness

Appellant Strahl also argues that the testimony of witness Curran, a key participant in the counterfeiting scheme who testified for the government, should have been struck as incredible and not worthy of jury consideration. Specifically, he claims that the witness's memory ebbed and faded, his demeanor was argumentative, and that he drank heavily at the time of critical events about which he testified.

The district judge enjoys considerable discretion in determining the competency of witnesses. See Fed.R.Evid. 104(a); United States v. Gerry, 515 F.2d 130, 137 (2d Cir.), Cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975); United States v. Crosby, 149 U.S.App.D.C. 306, 462 F.2d 1201, 1202 (1972). Moreover, we believe that the appellants' objections were suitably treated as questions concerning the credibility of the witness rather than his competency. The jury was made aware of Curran's drinking problems, his prior criminal history, his involvement in the counterfeiting scheme and the government favors he received for his cooperation. His credibility as a witness was for the jury to determine, as the district court properly ruled. See United States v. Curtis, 520 F.2d 1300, 1304 (1st Cir. 1975).

4. Delay in providing testimony received by grand jury

At trial, appellants moved for a mistrial or dismissal for the government's alleged failure to timely produce exculpatory material. We find that the district court properly denied these motions.

The testimony in question was that of government witness Curran before the grand jury, in particular a statement by Curran that he believed, although he did not "remember how he learned", that government witness Lombardo was the cameraman on counterfeit checks that Curran had done for appellant Strahl on a previous occasion. The government furnished the defense with this information after Curran testified. Appellants contend that it should have been furnished at an earlier point in the trial, after Lombardo testified and claim both that this delay deprived them of due process, See United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and that it violated the timetable of the Jencks Act, 18 U.S.C. § 3500.

In United States v. Agurs, supra, the Supreme Court held that the prosecutor's obligation to disclose evidence in his possession that would be material to the defense arises in three contexts when the prosecution has used perjured testimony, when the defense has made a specific request for evidence, and when the defense has made either a general request or no request for exculpatory evidence. 427 U.S. at 103, 96 S.Ct. 2392. Because a general request was made by appellants, only the third context is relevant here, in which the standard for materiality is a stringent one: "if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. . . ."

We note first that Curran's grand jury testimony was useful, if at all, ² only for impeaching Lombardo. We are not faced with a situation, as in Agurs, in which the withheld evidence may have been exculpatory, and the circuit courts have expressed uncertainty about applying Agurs to purely impeaching evidence. See United States v. McCrane, 547 F.2d 204, 205-06 (3d Cir. 1976); Garrison v. Maggio, 540 F.2d 1271, 1273-74 (5th Cir. 1976), Cert. denied, 431 U.S. 940, 97 S.Ct. 2655, 53 L.Ed.2d 258 (1977); United States v. Lasky, 548 F.2d 835, 839 n. 3 (9th Cir. 1977). We need not reach that question here, however, because it is clear that the grand jury testimony of Curran falls considerably short of the standard of materiality demanded by Agurs, even if it is applicable. This is not a case in which the evidence of guilt was tenuous, and Lombardo's participation in this counterfeiting scheme was known to the jury. We cannot say that impeachment of Lombardo with this hearsay and rather vague grand jury testimony concerning his past activities would have raised a reasonable doubt in the jury's mind. See United...