U.S. v. Caucci

• Decision Date: 27 January 1981
• Docket Number: No. 80-5144,80-5144
• Citation: 635 F.2d 441
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony "Tony" CAUCCI, Defendant-Appellant. Summary Calendar. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 441

635 F.2d 441

UNITED STATES of America, Plaintiff-Appellee, v. Anthony "Tony" CAUCCI, Defendant-Appellant.

No. 80-5144

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit B

Jan. 27, 1981.

Rehearing Denied March 23, 1981.

Michael H. Tarkoff, Miami, Fla., for defendant-appellant.

Joel M. Gershowitz, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before RONEY, FRANK M. JOHNSON, Jr., and HENDERSON, Circuit Judges.

FRANK M. JOHNSON, Jr., Circuit Judge:

Appellant Anthony Caucci appeals from his conviction, after trial by jury, on the third count of a three count indictment charging him with falsely testifying before a grand jury. ¹ The district court granted Caucci's motion for judgment of acquittal on counts one and two.

Before becoming an undercover government agent Louis Maricondi borrowed $15,000 from Tony "T.P." Plate, a reputed Florida loan shark, at a usurious rate of interest. ² Maricondi had asked either Caucci or Caucci's father to borrow the money from Plate, and Caucci's father obtained the money from Plate. Maricondi, ostensibly to open a new business, went to Florida as an undercover agent on a government investigation of Plate and others. Maricondi asked the government to advance him the unpaid amount of that loan because, as he told the government, it would be very difficult to start a business in Florida while he was indebted to Plate. The government asked Maricondi to find someone who could verify the existence of that loan and also renegotiate its repayment terms with Plate. In a recorded telephone conversation Maricondi asked Caucci to talk to Plate about Maricondi's debt; Maricondi and Caucci disagreed on whether the debt was $10,000 or $15,000. During the conversation Caucci stated that he, Caucci, owed Plate $1,000 and also referred to a prior debt which he had owed to Plate and which he had paid when he became frightened. In a second recorded conversation, Caucci told Maricondi that Plate had agreed to new terms concerning Maricondi's debt which were more favorable to Maricondi.

A grand jury, investigating Plate and others, subpoenaed Caucci to testify concerning Plate's loansharking activities. Caucci testified under oath that he had never borrowed any money from Plate and that he had never told anyone he had borrowed money form Plate. In addition, he testified as follows:

A JUROR: You said you never borrowed any money personally from Anthony Plate. Have you ever had any associates of yours that ever borrowed any money?

THE WITNESS (CAUCCI): Not that I know of. If anybody did, they didn't tell me about it. People don't really tell things if they borrow money like that.

Q. (By Mr. Schwartz) Nobody ever told you that he owed Plate money, a loansharking loan?

A. Not that I know of, and if they did, I wouldn't want to pay any attention, wouldn't want to know.

The first count of the three count indictment charged that Caucci had made a false declaration before the grand jury when he said that he had never borrowed any money from Plate. The second count charged that he had lied when he testified that he had not told anyone that he had borrowed money from Plate. The third count charged that he had lied when he stated that none of his associates had ever borrowed money from Plate. The district court did not explain its reasons for entering its judgment of acquittal on counts one and two, but evidently the court concluded that the government had failed to establish beyond a reasonable doubt that Caucci had borrowed money from Plate.

SUFFICIENCY OF THE EVIDENCE

Caucci's first contention on appeal is that the evidence was insufficient to support his conviction because the government did not establish that his statements were knowingly false declarations made with the specific intent to commit the crime of perjury. He emphasizes that the words "associates" and "loan shark" in the questions are vague and ill-defined. ³ Caucci concedes that the government was required to prove only that one of the two questions set out in count three was answered perjuriously. See United States v. Abrams, 568 F.2d 411, 419 (5th Cir.), cert. denied, 437 U.S. 903, 98 S.Ct. 3089, 57 L.Ed.2d 1133 (1978). Caucci argues that the government failed to establish that he knew that Maricondi had borrowed money from Plate. Although the words "loan" and "borrowed" were never used in the phone conversations between Maricondi and Caucci, the jury could certainly conclude from the evidence that Caucci knew that Maricondi's indebtedness to Plate had resulted from a loan. Actual knowledge of falsity may be proved from circumstantial evidence. United States v. Cuesta, 597 F.2d 903, 920-21 (5th Cir.), cert. denied, 444 U.S. 964, 100 S.Ct. 451, 62 L.Ed.2d 377 (1979).

The evidence indicated that Caucci was intimately familiar with the loan transaction between Plate and Maricondi. Maricondi had asked Caucci or Caucci's father to negotiate the loan, Caucci and Maricondi had discussed the amount of Maricondi's debt to Plate, and Caucci renegotiated the debt with Plate. In reviewing the sufficiency of the evidence we must view the evidence and all inferences that reasonably may be drawn from it in the light most favorable to the government. Hamling v. United States, 418 U.S. 87, 124, 94 S.Ct. 2887, 2911, 41 L.Ed.2d 590 (1974); Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1941); United States v. Rodgers, 624 F.2d 1303, 1306 (5th Cir. 1980). We conclude that the evidence was amply sufficient to show that Caucci knew that Maricondi had borrowed money from Plate.

Caucci also argues that, because the evidence failed to establish that he knew that Maricondi had borrowed from Plate at a usurious interest rate, he could not have lied when he negatively answered the question "Nobody ever told you that he owed Plate money, a loansharking loan?" Caucci was familiar with the loan transaction, having been asked by Maricondi to speak to Plate about the loan to Maricondi and it is most improbable that Caucci could have renegotiated the terms of that loan without knowing or learning that the interest rate was unsurious. In the phone conversations with Maricondi, Caucci made references to the fact that he (Caucci) had been indebted to Plate on two occasions and had once repaid him because he became frightened. Further, Caucci told Maricondi that Plate was "not gonna bother nobody" because "He's got enough heat on him" and added that "If you wait, they're liable to put him away." From the evidence that Caucci knew of the terms of Plate's loan to Maricondi and that Plate was a loan shark, the jury was entitled to conclude that Caucci knew that Maricondi's loan was a "loansharking loan."

Finally Caucci argues that, because the word "associates" was subject to varying interpretations, he could not have deliberately answered the grand jury falsely. It is noted that earlier in his testimony before the grand jury Caucci asked for clarification of the term "associates" when asked if he had ever borrowed any money from anyone associated with Anthony Plate. Caucci did not ask for clarification when later asked about any of his associates. He answered without evading the question or qualifying his answer and the record shows that he did not evidence any hesitancy in answering the question as presented. See United States v. Whitaker, 619 F.2d 1142, 1148 (5th Cir. 1980).

Caucci relies on Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973), in which the Court reversed the defendant's perjury conviction because the prosecutor failed to follow a non-responsive but literally true answer with a more precise question. Although Bronston expressly declined to reach the issue of the ambiguity of the question, it did note that "(p)recise questioning is imperative as a predicate for the offense of perjury." Id. at 356, 362, 93 S.Ct. at 599, 601. Bronston was concerned with a situation where the declarative statement that was made was literally true regardless of the context of the question asked, rather than with the situation where a "yes or no" answer was given, the truth of which can be ascertained only in the context of the question asked. See United States v. Cuesta, supra, 597 F.2d at 920. There is no Bronston situation in this case.

Although the questions at issue in this case could perhaps have been more clear or precise, we cannot conclude that they were so imprecise as a matter of law that they were insufficient to support a perjury conviction. United States v. Whitaker, supra, 619 F.2d at 1148-49; United States v. Calimano, 576 F.2d 637, 640-42 (5th Cir. 1978).

The function of this Court on review of the sufficiency of the evidence is to determine whether, viewing the evidence in the light most favorable to the government, the jury could reasonably conclude that the evidence is inconsistent with every reasonable hypothesis of innocence. United States v. Rodgers, supra, 624 F.2d at 1306; United States v. Gonzalez, 617 F.2d 104, 106 (5th Cir. 1980). In other words, the standard of review is whether, based on the evidence, a reasonably minded jury must necessarily entertain a reasonable doubt of the defendant's guilt. United States v. Gonzalez, supra, 617 F.2d at 106.

We conclude that the evidence was sufficient to support Caucci's conviction.

JURY INSTRUCTIONS

Caucci contends that the district court erred when it reinstructed the jury on the offense without also redefining "knowingly" or restating that the crime required proof of specific intent. He also contends that the district court erred by giving an instruction that shifted the burden of proof from the government to defendant.

Within an hour after beginning deliberations, the jury requested a supplementary charge on the "material four things you said we must make a decision on." The court repeated its initial instruction on those...