United States v. Chiarella

• Decision Date: 30 October 1950
• Docket Number: No. 48,Docket 21741.,48
• Citation: 184 F.2d 903
• Parties: UNITED STATES v. CHIARELLA et al.
• Court: U.S. Court of Appeals — Second Circuit

184 F.2d 903 (1950)

UNITED STATES v. CHIARELLA et al.

No. 48, Docket 21741.

United States Court of Appeals Second Circuit.

Argued October 3, 1950.

Decided October 30, 1950.

COPYRIGHT MATERIAL OMITTED

Abraham V. Kaplan, New York City, for Chiarella.

Mordecai M. Merker, New York City, for Stancin. David J. Paully, New York City, for Pietraniello. Myles J. Lane, New York City, for appellee.

Before L. HAND, Chief Judge, and SWAN and CLARK, Circuit Judges.

L. HAND, Chief Judge.

These are appeals from a conviction for counterfeiting; there were four counts in a single indictment; receiving, possessing, selling or trying to sell, and in conclusion the inevitable conspiracy count. One of the four original appellants, Palmisano, has consented to the dismissal of his appeal, so that there are left only three: Chiarella, Stancin and Pietraniello. The questions raised turn for the most part upon supposed errors in the course of the trial, although Pietraniello and Stancin argue that there was not enough evidence to support a verdict against them. In any event it is necessary for an understanding of the alleged errors to state the facts as the jury might have found them from the testimony, which came principally from the mouths of Pandolfo, a confederate who testified for the prosecution, of Seidler, an informer, and Gopadze and Carli, secret service agents. In December, 1949, Pandolfo in Los Angeles suggested to Seidler that he knew where counterfeit money could be got, and Seidler passed on this information to secret service agents of the Treasury, who told him to go on with the negotiation. He thereupon had a number of telephone talks with Pandolfo who said that he was having trouble getting the money, but who finally on January 9th of this year made contact with the appellant, Stancin, who told him that he knew one, Chiarella, in New York who might be willing and able to sell counterfeit money. On the same day Stancin and Pandolfo telephoned to Chiarella in New York who gave them some encouragement, and on the next day they both went to Seidler's apartment where were not only Seidler himself, but the two agents, Gopadze and Carli, representing themselves to be confederates. Several of them talked with Chiarella on the telephone, telling him they wanted $300,000 in ten and twenty dollar bills, to which Chiarella answered that he would send on samples, as he soon did. When these arrived, Seidler, Stancin and the two agents (Pandolfo had been meanwhile arrested on another charge), found them satisfactory and Seidler and Gopadze set out to New York, where on the 24th Chiarella came to visit them at their hotel in Manhattan. On the 25th they arranged for delivery of the bills at the hotel for $60,000; but, at the time and place agreed, Chiarella, fearing a trap, had Palmisano make a sham delivery. However, his suspicions were soon allayed and he agreed to make a true delivery at his apartment in Queens County, New York, whither all four then went in Palmisano's car. At five o'clock on that afternoon Pietraniello came with $200,000 in bills in two bags, which were opened and the money counted. Pietraniello and Seidler stayed in the apartment, guarding the counterfeits, while Chiarella, Palmisano and Gopadze went back to New York to get the $60,000. While they were gone Pietraniello told Seidler that the remaining $100,000 would be delivered at the time of the payment. We may pause at the outset to dispose of the argument that that was not enough evidence to support a verdict against Pietraniello. True, he swore that he did not know what the bags contained, but his remaining with Seidler to guard their contents after the bags had been opened and his talk with Seidler just mentioned, were ample proof of his guilty knowledge, and his implication in the venture, if the jury chose to believe the testimony. It is not necessary to discuss the evidence against Stancin. There remain for our consideration therefore only the objections taken during the course of the trial.

Chiarella

Chiarella's first complaint is that, although the judge kept the prosecution's witnesses out of the courtroom while they were not testifying, he refused to tell them not to discuss the testimony with one another. So far as we can find, this question has never arisen, and it is universally held that even the exclusion from the courtroom of witnesses who have not testified is discretionary.¹ A fortiori an instruction to them not to discuss the evidence while out of the courtroom is also discretionary.

Next is the objection to the judge's refusal to let the jurors take notes of the evidence during the trial. The notion has at times been countenanced that jurors should not be allowed to take notes, on the theory that they take on an undue importance when the jury deliberates. That question was raised in Agnew v. United States,² though not decided; but in United States v. Davis,³ the practice was condemned, while in Chicago and Northwestern Railway v. Kelly,⁴ and in United States v. Carlisi,⁵ it was apparently approved. The supposed dangers appear to us far-fetched, if not imaginary; but even if we are wrong, it has never been suggested that the judge must permit the practice; the question has always been whether he must forbid it. Moreover, it is at most a matter of discretion.

The next objection is to a comment of the judge critical of Palmisano's conduct in the courtroom. Although it was agreed at the outset of the trial that the objection of one of the accused should stand for all, it is inconceivable that the judge's stricture should have done harm to anyone but Palmisano; and, as we have said, his appeal has been dismissed.

The next objection arose in the following way. Carli, the Treasury agent, was testifying to the telephone negotiations between Chiarella in New York and Stancin, Pandolfo, Gopadze and Seidler, in Los Angeles, for the purchase of the bills. After the talk was over, Stancin in order to assure the others that he was well acquainted with Chiarella and that they might therefore rely upon him, told them that Chiarella and he had "served a term in jail together." The statement was part of the very negotiations which resulted in the sale, uttered to persuade those present that they might safely deal with Chiarella; and was admissible as such. The fact that incidentally it disclosed another crime did not make it any the less so.

We pass the three following objections because they are too trivial to deserve more than a bare mention. The first is a supposedly prejudicial comment of the judge to one of the accused's counsel while cross-examining Carli. The second is some testimony of Carli, brought out by the judge's questioning. The third is an innocent remark of the district attorney that there had been some attempt to confuse Carli.

Next are two objections to the examination of Pandolfo's attorney who had represented him in California upon prosecution for another crime. The testimony was relevant. Pandolfo, like all others who turn against their former confederates, was under the suspicion of trying to save himself by making a case against them. It was proper to bring out what inducements the prosecution had offered him and that was the subject of the attorney's testimony. The particular objections are unimportant, once the general relevancy of the testimony is decided.

The next objection is to a part of the redirect examination of Pandolfo. On his cross-examination the defence brought out that Pandolfo had heard from Stancin of a ring owned by a woman in California which it would be easy to steal, and that he had broached the project to Seidler. The objection is that the prosecution was then allowed to ask particulars of Pandolfo's talk with Stancin. On what theory an accused may complain that details of an occurrence were developed on redirect which he brought into the case on cross, we are not advised.

The next objection is more plausible. Seidler was telling of the talk in the New York hotel when Chiarella met him and the others who had come on from Los Angeles. The consequence of that talk was, as we have said, that the bills were later delivered at Chiarella's apartment in Queens County and not in the hotel; but Seidler testified that there had been some talk in the hotel "about dope" between Chiarella, Gopadze and Palmisano. To this the defence objected unsuccessfully, and Seidler was allowed to go into details. The talk was irrelevant and its admission erroneous; the excuse that it was part of the "res gestae" serves to show the damage which reliance upon that absurd term brings into any thinking which it invades. Nevertheless, we do not think that the error demands a reversal. Seidler's testimony was that Gopadze told Palmisano that he would "bring some opium" for sale and Palmisano that he would like to be "the exclusive buyer, the only buyer of the heroin," (sic). Chiarella's only part in the talk was that he corrected the price of heroin to $9,000 a kilo, which Palmisano had given Gopadze as $6,000 a kilo. That did of course indicate that Chiarella was familiar with this illicit trade, although it did not indicate that he proposed to take part in Gopadze's proposal. However, it appears to us substantially incredible that this could have turned the scale against him. We should have to suppose that, although the jury might have doubted the testimony of those witnesses who fixed the sale of the bills upon Chiarella, their doubts were allayed because one of these witnesses added that Chiarella showed an acquaintance with the peddling of narcotics. Unless trials are to become mere exercises in logical perfection, such a lapse ought to be disregarded.

Last is an objection to the judge's remark that Seidler was "apparently telling the truth." It is enough to observe that this did not overstep the power universally accorded to a judge to express his opinion on the facts, provided he makes it plain to the jury that they...