U.S. v. Barresi, 79-5065
| Decision Date | 22 August 1979 |
| Docket Number | No. 79-5065,79-5065 |
| Citation | 601 F.2d 193 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Michael BARRESI, Defendant-Appellant. Summary Calendar. * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Wm. J. Sheppard, Jacksonville, Fla., (Court-appointed), for defendant-appellant.
Robert S. Yerkes, Asst. U. S. Atty., Jacksonville, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before COLEMAN, FAY and RUBIN, Circuit Judges.
The defendant-appellant, Michael Barresi, appeals his conviction of passing counterfeit obligations of the United States in violation of 18 U.S.C. § 472. The evidence was circumstantial, and the sole issues raised are its sufficiency and the correctness of a jury instruction relative to exculpatory statements.
We review the facts in connection both with the challenged charge and the attack on the sufficiency of the evidence.
On Saturday, September 30, 1978, during a visit from Barresi's landlord, Jerry Sosnowski, Barresi offered to pay his October, 1978 rent. The landlord testified that Barresi, without leaving the table, reached into his shirt pocket, counted off $200 in twenty dollar bills, handed the money to him and put the remainder back in his pocket. Sosnowski kept his money separated from other money in his wallet and spent one of the bills at a cocktail lounge that evening.
On Monday, October 2, 1978, Sosnowski was about to deposit the money appellant gave him, but he noticed that the bills looked peculiar. Upon closer scrutiny, he discovered that each of them had the same serial number. Consequently, he contacted the Secret Service, told it what had happened, and relinquished the 9 remaining bills. These bills were later stipulated to be counterfeit.
On Wednesday, October 4, 1978, two Secret Service agents interviewed Barresi at his home. One of the agents testified that Barresi first stated that he did not know anything about counterfeit notes. Barresi was then advised of his constitutional rights; he indicated that he understood these rights and that he was willing to speak to the agents. The agents explained to Barresi how they had received the counterfeit bills. He replied that he did not know he had any counterfeit notes, but that he and his wife had cashed their paychecks the day before Sosnowski's visit and had put the money in the cookie jar in the kitchen. Appellant recounted that, when Sosnowski came over, he went to the cookie jar, removed $200, and gave the money to his landlord.
Agent Petway testified that, when asked if he ever kept money anywhere else but the cookie jar, Barresi said no. Barresi further stated that the only place he keeps money (i. e. currency) on his person is in his wallet and that he never kept money in his pants or shirt pocket. Barresi was then placed under arrest and taken to the police station.
According to the testimony, Barresi first indicated at the police station that, perhaps, he had obtained the money from the bank when he cashed his paycheck. After further reflection, Barresi suggested another possibility as to where he might have gotten the money. He told the agents that on that Friday night he had had a birthday party, which was attended by his two nieces and their families. During the party he had received a telephone call informing him that a friend of the family had been involved in an automobile accident and he left to assist his friend. Barresi suggested that, while he was gone, one of his relatives might have had the opportunity to substitute the counterfeit money for the genuine money in the cookie jar. At trial, however, his nieces testified that appellant never left the party while they and their families were present, and that they did not recall a phone call concerning an accident.
Over the objection of defense counsel, the trial court gave the following instruction:
"Now, conduct of a defendant including statements knowingly made and acts knowingly done upon being informed that a crime has been committed or upon being confronted with a criminal charge, may be considered by the jury in the light of all the other evidence in the case in determining guilt or innocence. When a defendant voluntarily and intentionally offers an explanation or makes some statement tending to show his innocence and...
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