U.S. v. Guida, 85-3505
| Decision Date | 03 July 1986 |
| Docket Number | No. 85-3505,85-3505 |
| Citation | 792 F.2d 1087 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Renato GUIDA, Maria Esposito, and Antonio Esposito, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Marc L. Lubet, Orlando, Fla., for Maria Esposito.
Alan B. Robinson, Orlando, Fla., for Antonio Esposito.
Bruce Hinshelwood, Asst. U.S. Atty., Orlando, Fla., for U.S.
Appeals from the United States District Court for the Middle District of Florida.
Before FAY and KRAVITCH, Circuit Judges, and HENLEY *, Senior Circuit Judge.
Appellants Antonio Esposito, Maria Esposito and Renato Guida appeal their convictions for various offenses in connection with the passing of counterfeit $100 Federal Reserve Notes ("counterfeit notes") at Epcot Center, Walt Disney World on February 17, 1985. All three appellants were found guilty of passing counterfeit notes in violation of 18 U.S.C. Secs. 2, 472 (1982), 1 and of conspiring to pass, utter, possess and conceal counterfeit notes in violation of 18 U.S.C. Sec. 371 (1982). Antonio Esposito and Renato Guida were also found guilty of possessing counterfeit notes in violation of 18 U.S.C. Sec. 472. Maria Esposito was found not guilty on the possession charge.
The principal arguments on appeal are: (1) that the trial court erred in communicating with the jury outside the presence of appellants and their counsel; (2) that the trial court erred by sending into the jury room an unredacted witness and exhibit list without notifying counsel; and (3) that the evidence was insufficient to support the convictions. 2 We affirm the convictions on all counts.
On January 21, 1985, Antonio Esposito and his wife Maria entered the United States from Italy at John F. Kennedy Airport in New York City. Following a short stay in the New York area, the Espositos rented a car and proceeded to travel from New York to Miami. During the course of their travels, they apparently succeeded in passing counterfeit notes in $100 denominations in places such as Baltimore, Maryland; South of the Border, near Dillon, South Carolina; and Miami, Florida.
On February 13, 1985, in the Miami airport, the Espositos met up with Renato Guida, an acquaintance from their hometown of Naples, Italy. It was allegedly at this time that the Espositos decided to visit the Orlando area. Guida agreed to accompany them on this trip.
On February 17, 1985, the appellants visited Epcot Center, a part of Walt Disney World in Orlando, Florida. While at Epcot, the appellants were detained for their involvement in the passing of counterfeit notes at various stores in Epcot. At the time they were detained, both Maria Esposito and Renato Guida were holding merchandise which had been purchased with counterfeit notes. Furthermore, Antonio Esposito was found to be carrying one counterfeit note and Renato Guida was found to be carrying two counterfeit notes.
A subsequent search of their car revealed additional merchandise which had been purchased with counterfeit notes, more than $35,000 in genuine United States currency and more than $48,000 in counterfeit notes.
When asked to give a statement as to how they had obtained the counterfeit notes, the Espositos claimed that they had exchanged Italian lire for United States currency through an unknown and nondescript taxi driver in New York. Guida explained that he had decided to accompany the Espositos to Orlando after having met them, by chance, in the Miami airport. Based on these statements, the identification of the appellants by various Epcot personnel, and the counterfeit notes and the merchandise purchased with counterfeit notes found on the appellants and in their car, the three were arrested.
The jury retired to deliberate at 12:20 p.m. on May 9, 1985. During the course of their deliberations, they sent a note to the trial judge requesting to see a copy of the witness and exhibit list (the "list") prepared in connection with the case. Without consulting counsel for either side, the trial judge allowed an unredacted copy of that list to be sent into the jury.
The Government concedes that the trial court erred in communicating with the jury outside the presence of the appellants and their counsel. "It is certainly true that preferable procedure would have been for the court to have informed counsel of communications from the jury and to afford them an opportunity to be heard...." United States v. Bascaro, 742 F.2d 1335, 1355 (11th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 3476, 87 L.Ed.2d 613 (1985). Depending on the particular facts and circumstances of the case, however, an error of this kind may be considered harmless. United States v. McDuffie, 542 F.2d 236, 241 (5th Cir.1976). 3 See Rogers v. United States, 422 U.S. 35, 40, 95 S.Ct. 2091, 2095, 45 L.Ed.2d 1 (1975). See also Rushen v. Spain, 464 U.S. 114, 119, 104 S.Ct. 453, 456, 78 L.Ed.2d 267 (1983) (per curiam) () (footnote omitted).
The difficulty in the present case is that the witness and exhibit list was a complete list of all of the exhibits which the Government intended to offer, including exhibits which were not admitted into evidence 4 and exhibits which were not offered by the Government. 5 Consequently, the jury was allowed to consider items not properly in evidence in making their decision. 6 Upon learning of the trial judge's action at approximately 6:00 p.m., all three appellants made motions for mistrial. These motions were denied. On its own initiative, however, the court decided to "When jurors consider material not introduced into evidence, the conviction must be reversed unless it is clear that the material was not prejudicial." United States v. Renteria, 625 F.2d 1279, 1284 (5th Cir.1980) (citing Farese v. United States, 428 F.2d 178, 180 (5th Cir.1970)). Stated in other words, the "defendant is entitled to a new trial unless there is no reasonable possibility that the jury's verdict was influenced by the material that improperly came before it." Llewellyn v. Stynchcombe, 609 F.2d 194, 195 (5th Cir.1980). When making such an inquiry, several factors should be considered "including the content of the alleged extrinsic materials, the manner in which the extrinsic materials were brought to the judge's attention, and the weight of the other evidence against the accused." Id.
give the jury a curative instruction. After reading the proposed instruction to counsel, the trial judge asked the marshal to give the instruction to the jury. The marshal returned shortly thereafter and reported that the jury would be out in approximately five minutes. In all probability, therefore, the jury had already reached their verdict when they received the curative instruction. Consequently, in analyzing the potential prejudice to the appellants, we do not rely on the fact that a curative instruction was given.
Appellants contend that the witness and exhibit list contained a number of objectionable items which had not been admitted into evidence. First, appellants point out that the list referred to some twenty-one counterfeit notes which were not in evidence. 7 From this, they argue, the jury was able to infer that the appellants passed or were suspected of passing at least twenty-one additional counterfeit notes. In so arguing, however, appellants ignore the fact that more than 500 counterfeit notes were admitted into evidence during the course of the trial. We therefore find that the additional notes contained on the list were not prejudicial in view of the overwhelming number of notes that had already been admitted.
Second, the appellants contend that the various items of merchandise from the Epcot pavilions which were not admitted into evidence but appeared on the witness and exhibit list were prejudicial. Specifically, the appellants object to the following items:
Exhibit Number Identified As
-------------- -------------------
18 Toys
27 Earrings
28 Receipt
29 Gown
30 Receipt
31 Elephant and Turtle
32 Scarves
34 Ceramic Monk
36 Key Rings
37 Receipt
With respect to Exhibits 27, 29 and 34, 8 we find that the appellants have no cause to complain of prejudice because, during the course of the trial, there was testimony specifically describing these items. For example, Exhibits 27 and 29 were described by Special Agent Julia Pierson in her testimony regarding the packages found in the appellants' car. 9 Exhibit 34 was described by Agent Pierson as an item in appellant We similarly find no prejudice with respect to the other merchandise not admitted into evidence. Much of the evidence adduced at trial consisted of various salespersons who testified to purchases made with $100 bills. In describing these transactions, numerous references were made to the items purchased with the counterfeit notes. Moreover, in her testimony, Agent Pierson described, in great detail, the merchandise found in the appellants' possession and in their car. Finally, many items of merchandise were properly admitted into evidence. We therefore find that Exhibits 18, 31, 32, and 36 were not prejudicial to the appellants in light of the substantial evidence and testimony concerning other merchandise which was presented at trial.
Guida's possession. 10 We therefore conclude that these items were not prejudicial because even though they were not properly in evidence, it is clear that the jury was aware of their existence and of their connection to the appellants. Cf. United States v. Hensel, 711 F.2d 1000 (11th Cir.1983). 11
Third, appellants object to Exhibit...
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