U.S. v. Vecchiarello

• Decision Date: 29 November 1977
• Docket Number: Nos. 76-1920 and 76-1921,s. 76-1920 and 76-1921
• Citation: U.S. v. Vecchiarello, 569 F.2d 656, 187 U.S.App.D.C. 1 (D.C. Cir. 1977)
• Parties: , 2 Fed. R. Evid. Serv. 474 UNITED STATES of America v. Anthony V. VECCHIARELLO, Appellant. UNITED STATES of America v. Louis P. VECCHIARELLO, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 656

569 F.2d 656

187 U.S.App.D.C. 1, 2 Fed. R. Evid. Serv. 474

UNITED STATES of America v. Anthony V. VECCHIARELLO, Appellant.

UNITED STATES of America v. Louis P. VECCHIARELLO, Appellant.

Nos. 76-1920 and 76-1921.

United States Court of Appeals District of Columbia Circuit.

Nov. 29, 1977.

As Amended Dec. 13, 1977.

Rehearing Denied Dec. 21, 1977.

Anthony V. Vecchiarello and Louis P. Vecchiarello, appellants, pro se.

Earl J. Silbert, U. S. Atty., and John A. Terry, William D. Pease and Richard H. Saltsman, Asst. U. S. Attys., Washington, D. C., were on the brief for appellee.

Before McGOWAN and MacKINNON, Circuit Judges, and McMILLAN, ^* United States District Judge for the Western District of North Carolina.

Opinion for the court filed by MacKINNON, Circuit Judge.

MacKINNON, Circuit Judge:

Anthony V. Vecchiarello, Louis P. Vecchiarello, and Marino J. Maturo were jointly indicted in criminal case No. 1981-69 on December 23, 1969 for numerous counts of wire and mail fraud and uttering forged documents. The offenses revolved around an alleged scheme and artifice to defraud certain named medical patients who were induced to patronize appellants believing them to be properly trained physicians duly licensed to practice in the District of Columbia, whereas in truth and in fact they were not properly trained or licensed. All three appellants were jointly tried and convicted, and they subsequently appealed their respective judgments of conviction.

On the first appeal, this court affirmed all the convictions by order and a per curiam opinion. United States v. Vecchiarello, et al., Nos. 24,723, 24,725, 24,776, decided November 22, 1971. Thereafter each appellant moved under 28 U.S.C. § 2255 to vacate his sentence and from a denial of such motions they filed another appeal. In our decision thereon, we disposed of a number of appellants' arguments adversely to their contentions, but we did remand the case to the District Court to consider three of their claims. United States v. Vecchiarello, 175 U.S.App.D.C. 393, 536 F.2d 420 (1976); United States v. Maturo, 175 U.S.App.D.C. 400, 536 F.2d 427 (1976).

It is the record on the remand of these three separate appeals that is now before the court in Nos. 76-1920, 76-1921, and 76-1741 entitled United States v. Anthony V. Vecchiarello, United States v. Louis P. Vecchiarello, and United States v. Marino J. Maturo, 187 U.S.App.D.C. ---, 569 F.2d 666, respectively. While the relevant facts involving each of the three appellants vary in some minor details, and the composition of the division of this court that heard Maturo did not include two judges who participated in this decision involving Anthony and Louis Vecchiarello; at the request of all three appellants, we have generally considered all issues raised by the separate appeals as being raised by all appellants. ¹ In compliance with appellants' request, we now proceed to consider the contentions of all three appellants even though the judgment following this opinion applies only to Nos. 24,723 and 24,725 involving Anthony V. Vecchiarello and Louis P. Vecchiarello, respectively. In doing so, we have considered the case on the transcript, record, and briefs without oral argument in accordance with Rule 11(e) of this Court. ²

I. DID THE PROSECUTOR KNOWINGLY USE PERJURED TESTIMONY AND THREATEN WITNESSES?

This claim, while appearing to involve two separate claims of perjury and intimidation of witnesses, actually amounts to a single contention that the United States Attorney threatened witnesses to testify falsely.

A. The Witness Fabianich.

Anthony Fabianich is the first witness that appellants claim was coerced into testifying falsely. However, Fabianich was not produced as a witness. In his absence, the court permitted the introduction of a post-trial affidavit dated the 9th day of February, 1975. This affidavit (Dfts. Ex. 4) referred to a "Citizen's Voucher" he had signed on behalf of Anthony Vecchiarello, who was then using the name "Dr. Anthony DeRuosa" (Tr. I, 337-338). Appellants, in argument, referred to paragraph 6 of the Fabianich affidavit which stated "I related to him that I was semi-retired but did own stocks and real estate plus deriving an income from rents and promissory notes. Mr. Glanzer, during both meetings with him at his offices, refused to accept such statements as true and used language relating to me that if I did not testify before the Grand Jury and trial of Anthony Vecchiarello that such statements were false and not authorized by me he would send me to jail along with Anthony Vecchiarello and he would have my brother's, Joseph Fabianich, parole violated and send him back to jail."

Then turning to the second page, paragraph 10:

"During the trial I testified not to all true statements, but to some statements that Mr. Glanzer wanted me to say, even though false. I did this because of Mr. Glanzer's continued threats to me recited in paragraph 6 of this affidavit."

(Tr. July 15, 1976, 192-193).

These portions of the affidavit are deficient for appellants' purposes in that they do not identify any particular portions of Fabianich's testimony as being false. And given both the failure of Fabianich to appear at the hearing and the complete refusal of all other witnesses for appellant to substantiate appellants' similarly raised claims of perjury, adequate grounds existed for the hearing judge's refusal to credit appellants' claim in this respect.

Also, placing significance on Fabianich's "semi-retired" status while owning "stock and real estate plus deriving an income from rents and promissory notes" seems relatively minor. This statement was apparently intended to refer to the trial testimony of Fabianich (Tr. 337) that he had not set forth on the "Citizen's Voucher" that he was an "investment Counsellor," when he was not "an investment counsellor at that time." Obviously the fact that Fabianich did not own "stocks and real estate (and derive) income from rents and promissory notes" did not mean that he still could not be an "Investment Counsellor."

Also involved on the voucher was the following statement:

I hereby certify that since 1965 I have been so closely associated with Dr. Anthony DeRuosa residing in Julisco, Mexico, and Paterson, New Jersey . . . I certify further that to my personal knowledge he has been actively (emphasis in original) engaged in the practice of medicine for not less than one continuous year out of the three years immediately preceding the date of this application. (Emphasis added).

(Tr. 338). Fabianich testified that this statement was false and that he did not authorize it to be put there. (Id.) (Hearing Tr. 193-194).

But more important than such claims is the importance of ascertaining the nature of "threats" that were allegedly made by the U.S. Attorney in order to induce the resulting testimony. Since this same subject was covered on cross-examination at the trial in the absence of the witness, we are required to turn to that transcript. There we find that the statements made by the U.S. Attorney, that Fabianich considered threatening, were:

Well, he wanted . . . (t)o get the dates straight . . . I had the feeling that he was threatening me, that if I didn't do things right, why I would be sitting in jail with them . . . I better tell them what I knew . . . after that he said, Well, it's a good thing you are telling the truth . . . Q. As you sat here on the stand facing the Court and this jury, was every answer that you gave here in this courtroom today to the questions that were asked, the truth? A. Yes, Sir. (Tr. 340-341, 356).

Fabianich previously testified:

Q. Did the (United States Attorney) at any time suggest any answer?

A. No, sir.

Q. Are you sure?

A. Pardon?

Q. Are you sure?

A. Yes, sir.

(Tr. 340). Thereafter on redirect examination Fabianich testified in response to interrogation by the United States Attorney Q. And you felt threatened when you were with me, is that correct?

A. Yes.

Q. And did I tell you to tell the truth?

A. Yes, sir.

Q. And that is what you mean by threatened?

A. Well, no, not that.

Q. Did I tell you to tell the truth?

A. Yes, sir, and you said that what you found out, it was the truth I was telling.

Q. That was afterwards, is that right?

A. Yes, sir.

(Tr. 356-357).

Q. Did anyone tell you (in the Grand Jury) what to say?

A. No, sir.

Q. In this courtroom today?

A. No, sir.

(Tr. 359).

It thus appears that the U.S. Attorney did not suggest any answers, never told the witness "what to say," and what Fabianich considered as "threats" were statements by the U.S. Attorney that he should testify "straight," "do things right," and "tell them what I knew." Directing the attention of a potential witness to the requirements of the law and its consequences if they testify falsely is perfectly proper. Such statements to a truthful witness are not threatening. If a witness who may desire to testify falsely to support a friend feels threatened by such statements, that is the result of an original improper motivation on his part, and is not the result of an improper threat. The threat eventuates from the penalties prescribed by the perjury, etc., statute and they are intended to be coercive to compel "the truth, the whole truth and nothing but the truth," as the oath of a witness prescribes.

The foregoing sets forth our analysis of the factual record, and it does not support appellants' claim on this point. Moreover, we note in reading the transcript that there were any number of other available witnesses who were disinterested that could have been available to support appellants' claims, insofar as they were not supported by Fabianich's trial testimony, had appellants' contrary claims been truthful. That such witnesses were never produced, or even claimed to exist, is fatal to appellants' claims.

B. The Witness Vance.

The claims with respect to Vance are typical of the remaining claims. Vance was a park police officer in...