994 F.2d 63 (2nd Cir. 1993), 485, United States v. Boothe

Docket Nº:485, 568 and 1090, Dockets 92-1271(L), 92-1285 and 92-1286.
Citation:994 F.2d 63
Party Name:UNITED STATES of America, Appellee, v. Richard BOOTHE, Frank Frigenti, Sr., and Frank Frigenti, Jr., Defendants-Appellants.
Case Date:May 19, 1993
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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994 F.2d 63 (2nd Cir. 1993)

UNITED STATES of America, Appellee,

v.

Richard BOOTHE, Frank Frigenti, Sr., and Frank Frigenti,

Jr., Defendants-Appellants.

Nos. 485, 568 and 1090, Dockets 92-1271(L), 92-1285 and 92-1286.

United States Court of Appeals, Second Circuit

May 19, 1993

Argued March 16, 1993.

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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.

LUMBARD, Circuit Judge:

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.

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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.

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