U.S. v. Boothe
| Decision Date | 19 May 1993 |
| Docket Number | 568 and 1090,D,Nos. 485,s. 485 |
| Citation | 994 F.2d 63 |
| Parties | UNITED STATES of America, Appellee, v. Richard BOOTHE, Frank Frigenti, Sr., and Frank Frigenti, Jr., Defendants-Appellants. ockets 92-1271(L), 92-1285 and 92-1286. |
| Court | U.S. Court of Appeals — Second Circuit |
William Gurin, Asst. U.S. Atty., Brooklyn, NY (Mary Jo White, U.S. Atty., E.D.N.Y., Peter A. Norling, Asst. U.S. Atty., of counsel), for appellee.
Colleen P. Cassidy, New York City (The Legal Aid Soc., Federal Defender Services Appeals Unit, of counsel), for appellant Richard Boothe.
Barbara L. Hartung, New York City, for appellant Frank Frigenti, Sr.
Arthur J. Viviani, Flushing, NY, for appellant Frank Frigenti, Jr.
Before ALTIMARI, LUMBARD and LOKEN, * Circuit Judges.
Defendants Richard Boothe, Frank Frigenti, Sr., and Frank Frigenti, Jr. appeal from judgments of conviction entered on April 29, 1992 after a jury trial in the Eastern District of New York, Pratt, C.J., sitting by designation. All three defendants were convicted of conspiracy to counterfeit United States currency, in violation of 18 U.S.C. § 371 (1988). Boothe and Frigenti, Sr. were also convicted of counterfeiting, 18 U.S.C. § 471 (1988), and possession of counterfeit currency and plates used to counterfeit currency, 18 U.S.C. § 474 (1988). Boothe, Frigenti, Sr., and Frigenti, Jr. were sentenced to terms of imprisonment of 56, 78, and 48 months, respectively, each term to be followed by three years of supervised release. Special assessments were also imposed.
Frigenti, Jr. argues that: the government knowingly used false and misleading testimony against him; his trial counsel was ineffective; the instruction on "conscious avoidance" was improper; and the evidence was insufficient to support his conviction. In addition, all three defendants contend that the district court erred in calculating their sentences under the Sentencing Guidelines. We affirm.
On February 27, 1991, a man who identified himself as "Richie" of the Arby Printing Company telephoned the Lindenmyre-Munroe Paper Company in Queens and ordered ten cartons of Strathmore bond paper. Later that day, "Richie" and another man arrived at Lindenmyre, paid for the order in cash, and said they would return to pick up the paper. His suspicion aroused by this all-cash sale to an unknown customer, a Lindenmyre sales manager alerted the United States Secret Service.
Unable to confirm the existence of an Arby Printing Company at the address and telephone number given to Lindenmyre by "Richie," Secret Service agents set up surveillance of Lindenmyre and placed undercover agents on its loading dock. On March 1, a white van occupied by Boothe and Frigenti, Jr. arrived at Lindenmyre. Boothe exited the van and showed the receipt for the paper ordered by "Richie" to one of the undercover agents. Boothe and the agent loaded the ten cartons of paper, each of which was labeled with the name of the manufacturer and the type of paper, into the van. Frigenti, Jr. then drove the van away.
Agents following the van observed it stop on a side street, where Frigenti, Jr. replaced the license plates with another set of plates. Both sets of plates were registered to apparently fictitious individuals. Frigenti, Jr. then drove the van onto the Long Island Expressway and headed east. Rather than remaining on the main road of the expressway, Frigenti, Jr. drove the van alternately on the main road, the service road, and along parallel side streets, his route bearing no apparent connection to prevailing traffic conditions. At one point, Frigenti, Jr. simply stopped the van on the service road and waited.
The van eventually arrived at Boothe's Holbrook, Long Island residence, where one man exited and went into the house. The van then continued to the Frigentis' home in Shirley, Long Island, where the paper was unloaded and stored in the garage.
Agents kept the Frigentis' garage under constant surveillance until March 8, when they saw the paper being loaded into a blue van which bore the name of a carpet service. With Frigenti, Sr. and Boothe inside, the van left the garage and headed west on the Long Island Expressway. Driving a Lincoln Continental, Frigenti, Jr. followed the van onto the expressway and then drove both in front of and behind it, periodically looking into the windows of surrounding cars. Frigenti, Jr. exited the expressway near the Nassau County border.
The van continued to Manhattan's Little Italy, where Frigenti, Sr. and Boothe met Douglas Salavec, a printer then employed by the Raleigh Lithograph Company. The three men then proceeded to 100 Avenue of the Americas where they moved the paper to Raleigh's offices on the seventh floor. From vantage points on nearby rooftops, agents observed the printing of thousands of sheets of counterfeit twenty-dollar bills. After obtaining a search warrant by telephone, agents entered Raleigh's offices and arrested Boothe, Frigenti, Sr. and Salavec. They seized over $10 million in newly printed currency, as well as plates, blankets, and maskings used in the printing process.
At trial, the government introduced the counterfeit currency, the plates and other materials used in the printing operation, photographs and videotapes made in connection with the surveillance, and the receipt for the paper which had been recovered from Boothe's home. The government offered the testimony of: the Lindenmyre employees involved in the sale of the paper; the agents involved in the undercover operation and surveillance; an expert in the examination and detection of counterfeit currency; and Salavec, who testified pursuant to a cooperation agreement with the government.
Before Salavec took the stand, the government advised the court and defense counsel that Salavec, who had earlier identified Boothe and Frigenti, Sr. as his known accomplices, refused to name them before the jury. Frigenti, Jr.'s counsel stated that he was aware, from material previously received from the government, that his client had never met with or spoken to Salavec. Confirming this, the government stated that Salavec, if asked, would testify that he had no dealings with Frigenti, Jr., a fact to which the government offered to stipulate.
Salavec then testified that he had several conversations and meetings with two men during which he agreed to help them print counterfeit currency in exchange for $2,000. He described how he created a set of plates and used them to print the counterfeit twenty-dollar bills. He stated that when he was arrested on March 8, 1991, he and his two accomplices had just finished printing the currency found in Raleigh's offices.
Before cross-examining Salavec, Frigenti, Jr.'s counsel told the court:
MR. HAUSCH: Your Honor, my intention is to ask the witness if my client had any--took part in any of the conversations or meetings that they had relating to this. My client has instructed me not to ask that question. I feel bound by his decision in this matter. He certainly knows more about the underlines [sic] of this case than I do. It is my client's decision and I intend to abide by it.
Trial Tr. at 318. Concerned that Frigenti, Jr. might claim ineffective assistance of counsel on appeal, the court called Frigenti, Jr. to the bench, whereupon the following colloquy took place:
MR. GURIN [the prosecutor]: For the record, could the court inquire as to whether Mr. Frigenti, Jr. is making the decision of his own free will or whether he was coerced or approached in any fashion to make the decision, just for the record?
Id. at 318-20. Frigenti, Jr.'s counsel did not cross-examine Salavec at all.
Frigenti, Sr. and Boothe did not present any evidence. Frigenti, Jr. called one witness, his cousin Michael Cucuzzo, who testified that: he owns the van used to transport the paper to Manhattan on March 8; he lent the van to Frigenti, Sr. at Frigenti, Sr.'s request; Frigenti, Sr. asked him to help load the cartons of paper into the van, and he did so; he did not know the contents of the cartons; and he and Frigenti, Jr. followed the van on the Long Island Expressway because Cucuzzo was worried that one of the van's tires might go flat.
The jury convicted the three defendants on all counts.
Due process bars a prosecutor from making knowing use of false evidence, see United States v. Valentine, 820 F.2d 565, 570-71 (2d Cir.1987), and a conviction may not stand if such evidence " 'could ... in any reasonable likelihood have affected the judgment of the jury....' " Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972) (quoting Napue v. Illinois, 360 U.S. 264, 271, 79 S.Ct. 1173, 1178, 3 L.Ed.2d 1217 (1959)). Frigenti, Jr. argues...
To continue reading
Request your trial
-
U.S. v Diaz, 96-1011
...properly in not objecting to testimony that was admissible against his client as an admission by a co conspirator); United States v. Boothe, 994 F.2d 63, 68-69 (2d Cir. 1993) (holding that trial counsel did not render ineffective assistance of counsel by failing to object to co conspirator ......
-
U.S. v. Salameh
...it knew, or should have known, was false. "Due process bars a prosecutor from making knowing use of false evidence." United States v. Boothe, 994 F.2d 63, 68 (2d Cir.1993). "[A] conviction may not stand if such evidence could in any reasonable likelihood have affected the judgment of the ju......
-
U.S. v. Diaz, J-1
...properly in not objecting to testimony that was admissible against his client as an admission by a co-conspirator); United States v. Boothe, 994 F.2d 63, 68-69 (2d Cir.1993) (holding that trial counsel did not render ineffective assistance of counsel by failing to object to co-conspirator s......
-
U.S.A. v. Samaria
...to obtain money, goods, services, or any other thing of value." 18 U.S.C. § 1029(e)(1) (1994). 5. Our holding of United States v. Boothe, 994 F.2d 63 (2d Cir. 1993), relied upon by the government, is not to contrary. In Boothe, we affirmed the conviction of conspiracy to counterfeit United ......