United States v. Barbone
| Decision Date | 20 October 1960 |
| Docket Number | No. 13189-13195.,13189-13195. |
| Citation | 283 F.2d 628 |
| Parties | UNITED STATES of America, v. Nicholas BARBONE, Appellant in No. 13,189, Albert Di Michele, Appellant in No. 13,190, Ignatius Esposito, Appellant in No. 13,191, Michael Pisano, Appellant in No. 13,192, Louis Diccio, Appellant in No. 13,193, Michael Lettera, Appellant in No. 13,194, Joseph Pagano, Appellant in No. 13,195. |
| Court | U.S. Court of Appeals — Third Circuit |
G. Fred DiBona, Philadelphia, Pa. (Grover C. Richman, Jr., Richman & Berry, Camden, N. J., for Nicholas Barbone, Appellant in No. 13189; Benjamin Asbell, Camden, N. J., for Louis Diccio, Michael Lettera and Joseph Pagano, Appellants in Nos. 13193, 13194 and 13195, respectively, on the brief), for appellants.
John H. Mohrfeld, 3rd, Asst. U. S. Atty., Camden, N. J. (Chester A. Weidenburner, U. S. Atty., Newark, N. J., John G. Kissane, Regional Counsel's Office (Alcohol and Tobacco Tax Div.), Philadelphia, Pa., on the brief), for appellee.
Before GOODRICH, McLAUGHLIN and STALEY, Circuit Judges.
Appellants together with seven other persons were charged in a four count indictment with conspiracy to operate, etc., as well as the substantive crime of operating an illicit still.1
During the trial, three of the defendants, Carmen Bruno, Samuel Coraluzzo and Albert Marzullo were acquitted on motion. Another defendant, Anthony Lampone, was granted a severance prior to trial. The jury returned a verdict of guilty on Count 1 of the indictment against Francis La Macchia and a verdict of guilty on all four counts against the seven appellants and two other defendants, Joseph La Macchia and Louis Orseno. Francis La Macchia, Joseph La Macchia and Louis Orseno, have not joined in this appeal.
Error is alleged in the court's refusal to grant a mistrial, when on recross-examination, the government's main witness, Emidio Teti, answered that he had been threatened. A review of Teti's testimony and the circumstances surrounding his answer demonstrates that the trial judge's denial of the motion for mistrial was correct.
Teti testified that sometime during March 1958, he was introduced to appellants Esposito and Barbone and was employed by them as a truck driver. He testified that at Esposito's request, he came to Philadelphia and met there with another of appellants, Pagano, and that a tractor was purchased and titled in his name by Pagano. Subsequently a trailer was obtained by a similar arrangement. With this equipment, under the direction of Esposito, Teti would pick up and load sugar and other raw materials at a garage on Queen Street in Philadelphia, Pennsylvania and transport them to the still in Vineland, New Jersey. At the still, he would unload the raw materials, load alcohol on the trailer and return to the Queen Street garage. He clearly identified each of the defendants and described their participation in the conspiracy.
In their effort to discredit Teti counsel for the defendants extensively cross-examined him, placing particular emphasis on the circumstances surrounding the voluntary statements given to the Alcohol Tax Unit agents by him; his close contact with those agents; the witness fees he received; and other collateral inquiries not pertinent now. The cross-examination was persistent and minutely probing. It searched every aspect of the relationship between Teti and the agents in the endeavor to establish that the witness had been coached and influenced by them. At one stage, defense counsel bluntly asked the following questions, eliciting a No answer in each instance: "Are you on the payroll of the Alcohol Tax Unit?"; "Are you what they call a paid informer?"; "You have never been a paid informer?"; "Are you what they sometimes call a special agent in special cases who gets paid a certain amount of money for whatever you may be able to do?" Although the record is choked with such innuendos, Teti's testimony throughout the cross-examination fails to lend them the slightest credence. There was no attempt by the defense to offer any affirmative evidence in support of its questions along this line.
In his redirect examination Teti clarified certain portions of his testimony and re-affirmed the absence of any coaching or other undue influence.
On recross-examination the tactic utilized by defense counsel on cross-examination, was resumed. In response to defense counsel's questions Teti said that on the previous day when the court was not in session, an agent of the Alcohol Tax Unit had gone to Teti's home to pick him up and to give him certain witness fees. As the attorney insisted on further details of the association of the witness with the Alcohol Tax agents and the reasons therefore, the testimony continued:
Following the last answer the defense attorneys immediately moved for a mistrial. In denying their motions, the trial judge correctly held that:
Appellants urge that the answer and the inferences to be drawn therefrom were highly prejudicial and the motion for mistrial should have been granted. It seems to us that, in the context of the entire course of the cross and recross-examination, the answer was a natural and spontaneous response to the question. Teti had said that he expected the agent at his home that day. In seeking to uncover the precise reason why the agent had been looked for by Teti, defense counsel pinpointed his query. The answer was at least the beginning of the explanation. Defense counsel, having persistently pursued that line of interrogation, cannot complain when the answer received is not tailored to fit their suggested theory. The well recognized rule that where an attorney puts this broad type of question, generally speaking, he cannot object to the response he receives is applicable. United States v. Apuzzo, 2 Cir., 1957, 245 F.2d 416; Clum v. Guardian Life Ins. Co., D.C.M.D.Pa. 1938, 24 F.Supp. 396, reversed on other grounds Guardian Life Ins. Co. of America v. Clum, 3 Cir., 1939, 106 F.2d 592; Fidelity & Deposit Co. of Maryland v. Lindholm, 9 Cir., 1933, 66 F.2d 56, 89 A.L.R. 279; Pabst Brewing Co. v. E. Clemens Horst Co., 9 Cir., 1920, 264 F. 909. In the Apuzzo trial, supra, defense counsel on cross-examination of a government agent propounded a question to him concerning the conversation between the agent and the defendant at the time of the latter's arrest. The witness answered that the defendant told him "he had been arrested for policy 15 years ago." Notwithstanding the inadmissibility of the statement, the Second Circuit held that defense counsel, having pursued this line of inquiry, could not object to the response elicited.
This appeal contains an even stronger factual basis for applying the rule, since the answer was responsive and admissible as relevant to the purpose of the cross and recross-examination, i. e., why was Teti in such close contact with the government agents. If the statement had effect at all, it was to clarify in some respects, the reasons why there was such close contact, and to neutralize the adverse inferences suggested, but never substantiated, by the defense attorneys.
Appellants further argue that: "Counsel for the Appellants had no reason to believe that the witness would in his answer, say that the agent's visit was occasioned by some threats made against the witness' life." (Emphasis supplied). The latter part of the assertion is incorrect. There was no reference to Teti's life being threatened, but only his statement: "I have been threatened in this case, sir." The supporting legal contention implies an element of surprise in the answer. It is inappropriate.
In order that the full picture be developed and all necessary relevant evidence given the jury, considerable latitude in the examination of witnesses is allowed. As a corollary counsel must accept the hazard of uncovering evidence which although relevant, is unfavorable to his position. Chief Judge Clark puts this very well in United States v. Apuzzo, supra, 245 F.2d at page 422:
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