U.S. v. Edwards

• Decision Date: 24 March 1977
• Docket Number: No. 76-1321,76-1321
• Citation: 549 F.2d 362
• Parties: 1 Fed. R. Evid. Serv. 844 UNITED STATES of America, Plaintiff-Appellee, v. Jack Gonzalez EDWARDS and Pasquale Matassini, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 362

549 F.2d 362

1 Fed. R. Evid. Serv. 844

UNITED STATES of America, Plaintiff-Appellee, v. Jack Gonzalez EDWARDS and Pasquale Matassini, Defendants-Appellants.

No. 76-1321.

United States Court of Appeals Fifth Circuit.

March 24, 1977.

Roy B. Reynolds, Jr., Tampa, Fla. (Court appointed), for Edwards.

Henry Gonzalez, Tampa, Fla., for Matassini.

John L. Briggs, U. S. Atty., Jacksonville, Fla., W. Christian Hoyer, Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before GEWIN, GEE and FAY, Circuit Judges.

FAY, Circuit Judge:

Appellants, Pasquale Matassini and Jack Gonzalez Edwards appeal their conviction for conspiracy to possess counterfeit money. ¹

The issues presented by appellants are: ²

1. Whether the court erred in denying appellants' motions to dismiss or for mistrial on the allegation that a "contingency fee" informer was employed. (Matassini and Edwards)

2. Whether the court erred in denying appellants' motions for severance. (Matassini and Edwards)

3. Whether the court erred in permitting government counsel to cross-examine character witnesses regarding appellant-Matassini's arrest and conviction record. (Matassini)

4. Whether the court erred in denying appellant-Matassini's motion to dismiss or for mistrial for the government's failure to disclose consideration given to an informer/witness. (Matassini)

5. Whether the court erred in restricting cross-examination by counsel regarding illegal activities of a government witness. (Matassini)

6. Whether the evidence was sufficient to sustain the jury verdict. (Matassini and Edwards)

7. Whether the court erred in admitting certain counterfeit money into evidence. (Edwards)

8. Whether the court erred in refusing to read to the jury selected parts of the trial transcript when requested by the jury. (Edwards)

For the reasons stated below we affirm.

During the trial of this case one of the key witnesses for the prosecution was Edward Loocerello. He was indicted with the appellants but on the first day of trial it was announced he would testify for the government in return for dismissal of the charges against him. He testified that in November, 1973, he and Matassini, who were acquaintances of ten or twelve years, met in the Pad Lounge (owned by Matassini) in Tampa, Florida. Matassini took Loocerello for a drive in his car, showed Loocerello a $20, a $50, and $100 counterfeit note, and solicited his opinion as to their quality. Loocerello said the bills looked good and, after asking, was told that their price was twenty cents on the dollar. They didn't discuss the amount of counterfeit money available.

The next day Loocerello contacted an individual in El Paso, Texas in hopes of selling any counterfeit money he could purchase from Matassini.

In December, 1973, Loocerello met with Edwards in the Neptune Lounge at which time Edwards asked if Loocerello could use some $20, $50, and $100 counterfeit notes. Loocerello asked if these notes were the same ones Matassini had to which Edwards nodded and smiled, adding that up to one million dollars worth was available at twenty cents on the dollar. Loocerello met Edwards again in January, 1974, while Edwards was in the hospital. He asked Edwards for some samples of the money and, after Edwards made a telephone call, Edwards told Loocerello the money would be arriving from Miami within seventy-two hours.

In mid-January, 1974, Loocerello met a man he thought was his Texas connection at the Jubilee Lounge to discuss the counterfeit deal. The contact was really Agent Woodham of the United States Secret Service. Both Woodham and Loocerello testified that during this meeting Edwards walked in and was then identified by Loocerello as the source of the counterfeit money.

Thomas Wester, a government informer, testified that he had known Matassini for many years and was formerly Matassini's supervisor at a bowling lane in Tampa. In late November, 1973, Wester was approached by Matassini at the Pad Lounge and was shown a counterfeit $20, $50, and $100 federal reserve note by Matassini. Matassini stated there was $920,000 available. The next day Wester took the bills to agents of the Secret Service who copied down the serial numbers and returned them to Wester. At that meeting Wester refused to divulge the identity of his source except that he was a bar owner. Wester also requested five percent (5%) of anything seized for a reward. The agents told him that was unreasonable and the Secret Service did not as a practice enter into agreements with informants for a percentage. No agreement was made as to any reward. At a second meeting, the next night, Wester gave the agents Matassini's name and asked again about a reward. He was told it depended on the "final results" and Agent Williams explained that it would depend upon the results of whatever buy he was able to make or whatever amount of money they were able to seize. Still no agreement was reached and Wester never received any money for this case from the Secret Service.

Wester continued in his attempts to make a deal with Matassini and in January, 1974, Matassini gave Wester a bar tab with some telephone numbers on it and directed Wester to call the numbers. The four telephone numbers were to Edwards' house in Tampa, where Edwards could be reached in Ft. Lauderdale, Florida, and Edwards' father's law office. According to Wester, Matassini wrote four digits of one number in his presence.

Wester also testified he called Edwards' home number, talked with Edwards' mother and found out Edwards was in the hospital. He went to the hospital that day, met with Edwards and arranged a meeting between Matassini and himself so Matassini could introduce Wester to Edwards. That night a meeting took place at the Pad Lounge and Matassini made the introduction. Wester and Edwards talked about the counterfeit money, in particular, price, quality and quantity. Edwards agreed to get in touch with his contact to work out further details. A price of twenty to twenty-five percent was quoted.

A week or so later Wester saw Loocerello, who he had met in mid-December, 1973, through Matassini, at the Pad Lounge and Loocerello then identified Edwards as his source of counterfeit money. Loocerello took Wester to the airport where Wester was to leave with Edwards for Fort Lauderdale.

Richard Taylor, identified as an unindicted co-conspirator, testified that he bought one million dollars in counterfeit money for twenty thousand dollars in October, 1973. He was arrested in December, 1973, and the money was seized. His arrest was not disclosed for several weeks. The amount seized was $886,960 in $20, $50, and $100 counterfeit federal reserve notes, each denomination having twenty different serial numbers, one of which matched each of the serial numbers of the three notes given to Wester by Matassini. All the money, from both Taylor and Matassini was found to be from the same printer, press and paper.

The first point on appeal is based on the doctrine set forth in Williamson v. United States, 311 F.2d 441 (5th Cir. 1962), concerning contingent fee informers. Both Matassini and Edwards suggest that their convictions should be reversed because Thomas Wester had a contingent fee agreement with the Secret Service to produce evidence against appellants. We do not agree.

In Williamson, an informant was offered a specific sum of money for evidence against certain individuals. At the time of the offer to the informant, no evidence against the target individuals had been gathered.

The evidence in this case does not establish a contingent fee arrangement like the one condemned in Williamson. Viewing the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), there was no specific arrangement between Wester and the Secret Service agents. The failure to agree to Wester's request for a percentage of money seized and the fact that neither Matassini nor Edwards were known to the Secret Service before Wester came to them with the information of the alleged conspiracy prevents this case from coming within the ambit of Williamson. The only probative evidence of a possible contingent fee arrangement is Agent Williams' statement that a reward depended on the "final results" and we find this is not sufficient to bring this case within the Williamson doctrine. See United State v. Dickens, 524 F.2d 441 (5th Cir. 1975). This court has

refused to extend (Williamson) . . . to the situation where an informant is paid a subsistence allowance and given a reward, as long as there is no evidence that he had been promised a specific sum to convict a particular person. (Citations omitted).

United States v. Garcia, 528 F.2d 580, 586 (5th Cir. 1976).

For the second issue, both appellants suggest the district court's denial of a severance was prejudicial to them but each for entirely different reasons. We must determine in each case whether there was sufficient prejudice to require a severance under Rule 14 of the Federal Rules of Criminal Procedure. ³

The existence of prejudice, in large measure, depends upon the facts and circumstances of each case . . . and it is axiomatic that the granting of a severance is within the discretion of the trial judge. (Citations omitted) The burden of demonstrating prejudice is a difficult one, and the ruling of the trial judge will rarely be disturbed on review. (Citations omitted) ⁴

Appellant Edwards suggests severance was mandatory because he was irreparably prejudiced by Matassini testifying and being impeached by a prior conviction. ⁵ Matassini's testifying and his impeachment by prior conviction did not prejudice Edwards' case in any way and any possible misunderstanding of this testimony by the jury was explained by the court's instructions. See Blumenthal v. United States, 332 U.S. 539, 559-560, 68...