United States v. Battiato, 10779.

Decision Date19 June 1953
Docket NumberNo. 10779.,10779.
Citation204 F.2d 717
CourtU.S. Court of Appeals — Seventh Circuit

Myer H. Gladstone, Chicago, Ill., Robert W. Heinze, Chicago, Ill., for appellant.

Gilmore S. Haynie, U. S. Atty., Fort Wayne, Ind., James E. Keating, Asst. U. S. Atty., South Bend, Ind., for appellee.

Before DUFFY, FINNEGAN and LINDLEY, Circuit Judges.

FINNEGAN, Circuit Judge.

On November 18, 1952, Michael Battiato, the appellant, was sentenced to a term of four years for having uttered a counterfeit $20 Federal Reserve note and for having aided and abetted his codefendant, John Mundo, in uttering a second similar counterfeit Federal Reserve note. This appeal is prosecuted by Michael Battiato alone, who is here insisting that the United States attorney made improper and prejudicial remarks in his argument to the jury, and for that reason he urges that judgment should be reversed and the cause remanded for a new trial.

The indictment contained two counts. In the first count appellant, Michael Battiato, is charged with having aided and abetted one John Mundo in passing a certain counterfeit $20 Federal Reserve note in violation of section 472, title 18 of the United States Code. The second count charges that the appellant, Battiato, himself, passed a similar counterfeit $20 Federal Reserve note in violation of the same section of United States Code. Both defendants were represented by competent counsel of their own choice; they entered pleas of not guilty and proceeded to trial before a jury. Each was found guilty on both counts of the indictment, and the judgment against Battiato provided that he be committed for a term of four years on each count, to be served concurrently.

We have examined and considered the arguments made in the District Court on behalf of the Government and on behalf of the two defendants. Such examination discloses nothing intemperate or undignified in the argument of the United States attorney. The argument contains no insinuations or assertions that might lead the jury to believe that the prosecutor had personal knowledge as to the guilt of the defendants. There is nothing in this cause comparable to the situation disclosed in Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314, which is cited and relied upon by the appellant. He likewise directs our attention to Taliaferro v. United States, 9 Cir., 47 F.2d 699-701. In that case, the prosecuting attorney in his argument to the jury said concerning a material fact: "I know that of my own knowledge."

In the case at bar, the prosecutor did not state that he had personal knowledge of any fact material to the issue. In truth, we can find in the record no statement of the United States attorney from which the jury could possibly infer that the prosecutor had personal knowledge or was attempting to lead them to believe that he had such knowledge of any material fact. Appellant cites three excerpts from the prosecutor's argument in his attempt to establish the proposition for which he is contending.

In appellant's first excerpt it appears the prosecutor said: "If I, in my own mind, thought for one minute that these defendants were not parties to this case, I certainly would not have the courage to stand up here and argue before you that they were guilty. It is never our intention to prosecute and try innocent men."

This statement was far short of alleging that the speaker had personal knowledge of facts showing defendant's guilt. He does not state in uncompromising language or even hint that the defendants are guilty. He states merely that he is arguing that they are guilty and that he believes them guilty. Moreover, when the context from which the excerpt is taken is considered we believe it becomes perfectly plain that no improper argument was presented. It appears that shortly before the prosecutor used the language quoted the attorney then acting for defendant, Battiato, had referred to the building which houses the Department of Justice, in the Nation's Capitol, and stressed the motto...

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17 cases
  • Stewart v. United States
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • April 18, 1957
    ...error if the jury would understand from the context that they represent merely advocacy rather than testimony. United States v. Battiato, 7 Cir., 1953, 204 F.2d 717. But we do not think it can be said that the jury so understood the matter because, within a few minutes after denouncing thes......
  • United States v. Medlin, 16034.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • December 29, 1965
    ...362 U.S. 940, 80 S.Ct. 805, 4 L.Ed.2d 769 (1960); Schmidt v. United States, 237 F.2d 542, 543 (CA 8, 1956); United States v. Battiato, 204 F.2d 717, 718-719 (CA 7, 1953) cert. denied, 346 U.S. 871, 74 S.Ct. 118, 98 L.Ed. 380 (1953). Government counsel emphasized that his argument was based ......
  • U.S. v. Bess
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • April 11, 1979
    ...F.2d 542 (8th Cir. 1956) (argument "I believe in the guilt of these two defendants under this evidence" was proper); United States v. Battiato, 204 F.2d 717 (7th Cir.), Cert. denied, 346 U.S. 871, 74 S.Ct. 118, 98 L.Ed. 380 (1953) (statement that prosecutor believed defendants were guilty w......
  • Henderson v. United States
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • January 11, 1955
    ...not led to believe that there is other evidence, known to the prosecutor but not introduced, justifying that belief. United States v. Battiato, 7 Cir., 204 F. 2d 717, 719; Gridley v. United States, 6 Cir., 44 F.2d 716, 739, certiorari denied 283 U.S. 827, 51 S.Ct. 351, 75 L.Ed. 1441; United......
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