U.S. v. Cardarella, 77-1551

• Decision Date: 01 March 1978
• Docket Number: No. 77-1551,77-1551
• Citation: 570 F.2d 264
• Parties: UNITED STATES of America, Appellee, v. Anthony CARDARELLA, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 264

570 F.2d 264

UNITED STATES of America, Appellee, v. Anthony CARDARELLA, Appellant.

No. 77-1551.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 9, 1978.

Decided Feb. 7, 1978.

Rehearing and Rehearing En Banc Denied March 1, 1978.

Philip F. Cardarella, Quinn & Peebles (argued), Kansas City, Mo., and Charles A. Gallipeau, Kansas City, Mo., on brief, for appellant.

David B. B. Helfrey, Sp. Atty., Kansas City, Mo. (argued), Ronald S. Reed, Jr., U. S. Atty., Kansas City, Mo., and Edward D. Holmes, Special Atty., U. S. Dept. of Justice, Kansas City, Mo., on brief, for appellee.

Before BRIGHT, STEPHENSON, and HENLEY, Circuit Judges.

BRIGHT, Circuit Judge.

Appellant Anthony J. Cardarella challenges his jury convictions on three counts of violation of 18 U.S.C. § 922(h) (1970), for receiving firearms transported in interstate commerce after having been convicted of a felony; two counts of violation of 18 U.S.C. § 922(j) (1970), for receiving stolen guns that had moved in interstate commerce; one count of violation of 18 U.S.C. § 922(a)(1) (1970), for aiding and abetting an illegal firearms dealer; two counts of violation of 18 U.S.C. § 2314 (1970), for causing to be transported in interstate commerce stolen merchandise valued at more than $5,000; two counts of violation of 18 U.S.C. § 2315 (1970), for receiving stolen merchandise valued at more than $5,000 that had moved in interstate commerce; and one count of conspiracy, under 18 U.S.C. § 371 (1970), to violate 18 U.S.C. §§ 2314, 2315 (1970). The district court sentenced appellant to serve five years' imprisonment and to pay $11,000 in fines. We affirm the convictions on all counts.

Cardarella does not challenge the sufficiency of the evidence supporting his conviction. Rather, he makes six separate assignments of error, four of which we discuss briefly, and the other two at more length.

I.

The four alleged errors that do not merit extended discussion are summarized by appellant as follows:

Whether the trial court erred by refusing to allow the Appellant's counsel to question Appellant concerning a polygraph examination after the prosecutor had falsely implied, before the jury, that the Appellant had refused such examination.

Whether the trial court erred by instructing the jury on conspiracy under 18 U.S.C., Section 371, but failed to instruct on the elements of the underlying substantive charges, when such substantive charges were not otherwise charged.

Whether the trial court erred by instructing the jury in response to a note from them that the jury must reach a unanimous verdict on all counts.

Whether the trial court erred by reading to the jury, a detailed description of Appellant's prior offense, when such was unnecessary, superfluous and highly prejudicial to Appellant.

With respect to the first contention, we do not read, in the prosecutor's line of questioning, an implication that the appellant refused to take a polygraph examination. ¹ We also note that ordinarily polygraph results are not admissible as evidence, United States v. Alexander, 526 F.2d 161, 166 (8th Cir. 1975), nor is willingness or unwillingness to take such examination. Therefore, the district judge properly refused to allow the questioning of appellant on redirect examination concerning his willingness to take a polygraph examination related to the offense charged.

Similarly, we find no error in the court's instructions to the jury. After instructing the jury on the elements of conspiracy, the court briefly reviewed the nature of the underlying offense. Later on in its instructions, when it reached the part of the indictment where the underlying offense was charged substantively, the court fully briefed the jury on the necessary elements of proof. The court was not obligated to instruct the jury twice on this matter.

In appellant's third allegation of error, he contends that the court's brief response ("Yes, you do.") to the jury's request for guidance ("Your Honor: Do we have to have a unanimous verdict on each separate count?") misled the jury. In particular, appellant states that the answer conveyed to the jury the impression that it must convict the appellant on all counts or none. We disagree. The answer, taken at face value, conveyed the understanding that an unanimous verdict was required on each separate count, and not that an unanimous verdict was required on the counts taken together, i. e., guilty on all counts or no counts.

Finally, the court's accidental reading of the details of Cardarella's prior offense was not prejudicial. The judge immediately ordered the jury to disregard the previous instruction, and in this case the Government presented exceptionally strong evidence of guilt.

II.

The first substantial claim of error raised by appellant is "(w)hether the trial court erred by refusing to grant a mistrial when the prosecutor asked the appellant, in cross-examination, if the appellant had not admitted guilt privately to the prosecutor, when no such statement was in evidence or ever offered into evidence." On cross-examination, appellant was asked:

Q. Now, it is true, isn't it, Mr. Cardarella, that you have sold some records through your shop that were boosted or stolen or that you had reason to believe were boosted or stolen?

A. I don't think I have, sir.

Q. Did we have a conversation during a hearing here on 6 April of 1977 concerning whether or not you were dealing in boosted items?

A. I don't remember that.

Q. Do you recall telling me that you did sell boosted items but it wasn't in the quantities I thought?

A. I don't remember that, either, sir.

MR. GALLIPEAU: Your Honor, I'm going to object to this for several reasons, if I may.

MR. GALLIPEAU (out of hearing of the jury): I'm going to move for a mistrial on the basis of the fact that unless Mr. Helfrey is willing to take the stand and be cross-examined on this matter that this raises just a terrible specter before this jury of the credibility of this defendant. (Emphasis added).

The line of questioning may be open to the charge that it is improper and unethical. ² Nevertheless, not every error, defect or irregularity requires setting aside a criminal conviction. Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972). In cases where prosecutorial misconduct is alleged we must review the facts independently to ascertain whether there has been prejudice to the defendant. United States v. Splain, 545 F.2d 1131, 1135 (8th Cir. 1976).

In this case we believe the alleged misconduct was harmless beyond a reasonable doubt. Against the background of a long trial in which the Government presented almost overwhelming evidence indicating appellant's guilt, the prejudicial effect of this incident must be deemed insignificant. Schneble v. Florida, supra, 405 U.S. at 430, 92 S.Ct. 1056.

Moreover, Mr. Gallipeau's motion for a mistrial, as quoted above, was made contingent on the unwillingness of the prosecutor to take the stand and be cross-examined on his insinuations. The prosecutor, at sidebar, did offer to take the stand and be cross-examined on the statement; however, the defendant apparently declined the invitation. Under the circumstances, we cannot say with certainty that appellant preserved his objection for appeal.

Finally, after defendant denied the truth of the allegation, the prosecutor quickly dropped the line of questioning and never mentioned the matter again. Thus, we hold that the trial court's rejection of the mistrial motion does not constitute prejudicial error.

The second major assignment of error is broken down by appellant into several subcategories:

Whether the trial court erred with regard to the...