United States v. Coppola

Decision Date25 October 1973
Docket NumberNo. 73-1170.,73-1170.
Citation486 F.2d 882
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ronald COPPOLA, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Raymond J. Daniels, Providence, R. I. (John F. Cicilline, Providence, R. I., and Carroll Samara, Oklahoma City, Okl., on the brief), for defendant-appellant.

Jeff R. Laird, First Asst. U. S. Atty., Oklahoma City, Okl. (William R. Burkett, U. S. Atty., on the brief), for plaintiff-appellee.

Before HILL and SETH, Circuit Judges, and SMITH,* District Judge.

HILL, Circuit Judge.

Ronald Coppola was indicted for executing a scheme to defraud James Mathis of horses having a value in excess of $5,000 in violation of 18 U.S.C. § 2314.1 He subsequently was convicted by a jury in the Western District of Oklahoma and sentenced to the maximum penalty allowed.

The record discloses that Mathis was the manager of a registered quarterhorse ranch near Norman, Oklahoma. In November, 1971, Louis Baccari induced Mathis through the use of interstate telephone calls to haul four quarterhorses from Norman to Providence, Rhode Island, for the express purpose of selling them. After hauling the horses to Providence, Mathis was introduced by Baccari to a man called "Ray Cianci", actually Coppola, who allegedly was the prospective buyer. After introductions, Mathis and Baccari proceeded to discuss a sale price and eventually agreed upon a price of $10,500 for three of the horses; Cianci then wrote out a countercheck for the agreed amount. After receiving the countercheck, Mathis left the three horses and returned to Oklahoma. Shortly thereafter he presented the countercheck for collection but was refused payment because no such account existed.

Mathis immediately notified authorities of the fraudulent scheme. Approximately a year later Baccari and Coppola were arrested and charged with inducing Mathis to use interstate commerce in the execution of a scheme to defraud Mathis of property having a value of over $5,000. Baccari pleaded guilty to this charge in the District of Rhode Island, and Coppola was found guilty in the Western District of Oklahoma of aiding and abetting2 Baccari in the fraudulent scheme.

Coppola's first argument on appeal is that he was deprived of a fair trial by an impartial jury when the trial court instructed the jury at one place in the instructions that the government must establish each of the three essential elements of the offense charged by a preponderance of the evidence rather than beyond a reasonable doubt. Coppola argues that charging a jury on preponderance of evidence is plain error because it leaves the jury with the impression that the government's burden of proof is less than beyond a reasonable doubt.

Coppola's trial counsel did not object to this questioned instruction at the time it was given, nor did he mention this error in his motion for a new trial. Failure to timely object would normally preclude objection on appeal. F.R. Crim.P., Rule 30, 18 U.S.C. The one exception is when the improper instruction constitutes plain error because it seriously affects substantial rights of the accused. F.R.Crim.P., Rule 52(b), 18 U.S.C.; United States v. Nelson, 448 F.2d 1304 (10th Cir. 1971); Wright v. United States, 301 F.2d 412 (10th Cir. 1962).

Determining what constitutes plain error is no easy matter. As the United States Supreme Court has noted, defining plain or reversible error is an almost impossible task; it is something you know when you see it. Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L. Ed.2d 793 (1964). One of the clearest definitions we have found on the subject states that plain error is "fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done." United States v. Summerour, 279 F. Supp. 407, 410 (E.D.Mich.1968).

In deciding whether the instructions constitute plain error we will review the instructions as a body rather than looking to one isolated sentence. Russell v. United States, 429 F.2d 237 (5th Cir. 1970); Bynum v. United States, 133 U. S.App.D.C. 4, 408 F.2d 1207 (1968), cert. denied, 394 U.S. 935, 89 S.Ct. 1211, 22 L.Ed.2d 466; United States v. Summerour, supra. In the court's charge, time and again it was stated that presumption of innocence continues until such time as the guilt of the defendant is shown to the jury's satisfaction beyond a reasonable doubt.3 Shortly after the allegedly prejudicial instruction was given, while still speaking on the same subject, the trial court stated: "You of course may not find any Defendant guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons, and that the Defendant participated in its commission." This instruction, along with the other reasonable doubt instructions, sufficiently clarifies any ambiguity raised by the "preponderance of evidence" instruction. As the jury was charged that they must consider the instructions as a whole rather than relying only on parts of them, we are convinced the inadvertent instruction was harmless error. United States v. Beyer, 426 F.2d 773 (2d Cir. 1970); see Scurry v. United States, 120 U.S.App.D.C. 374, 347 F.2d 468 (1965), cert. denied, 389 U.S. 883, 88 S.Ct. 139, 19 L.Ed.2d 179.

Appellant next asserts he was improperly indicted; that he was unable to prepare a proper defense because the indictment charged him solely as a principal although the prosecution proceeded and the court charged on the theory that he was an aider and abettor. This argument may be summarily refuted because the law does not require the aider and abettor statute to be specifically pleaded or that accused be charged with being an aider or abettor. United States v. Adams, 454 F.2d 1357 (7th Cir. 1972), cert. denied, 405 U.S. 1072, 92 S.Ct. 1523, 31 L.Ed.2d 805; United States v. Trollinger, 415 F.2d 527 (5th Cir. 1969). As appellant has made no showing that his defense was hindered by the prosecution's aiding and abetting theory we find no grounds for reversal.

Appellant also suggests his case was improperly tried because the judicial district of Oklahoma lacks both jurisdiction and venue to hear this case. His position is that all acts of inducement causing Mathis to travel from Oklahoma to Rhode Island with the horses were perpetrated by Baccari while in the States of Rhode Island and New York, and as the acts of inducement were all performed outside Oklahoma, that judicial district lacks jurisdiction and venue to hear this case. We disagree, for under 18 U.S.C. § 3237(a)4 it is clear that violation of § 2314 is a continuing offense which may be prosecuted in any district from which commerce moves. It necessarily follows that as the substantive crime was committed in Oklahoma, the crime for aiding and abetting may also be tried in that district. United States v. Jackson, 482 F.2d 1167 (10th Cir. 1973); United States v. Kilpatrick, 458 F.2d 864 (7th Cir. 1972).

Appellant also charges error in admitting into evidence "in-court" eyewitness identifications because they were tainted by improper pretrial law enforcement identification procedures. When Mathis reached Providence, Rhode Island, late in the afternoon of a dreary November day, he was briefly introduced to a "Ray Cianci". For approximately one hour Mathis and Baccari discussed sale prices of the horses while Cianci stood by about ten yards away; after this discussion Cianci gave Mathis the countercheck and Mathis then left for Oklahoma. Approximately a year later Mathis and David Ashford, an employee who had traveled with Mathis to Rhode Island, were shown six or seven photographs by the Federal Bureau of Investigation. Only Mathis identified Coppola as the man who was called Cianci. Approximately two months after viewing the photographs a lineup was conducted in Oklahoma City and this time both Mathis and Ashford identified Coppola as Cianci. At trial the prosecution was allowed over appellant's objection to ask Mathis and Ashford if they had identified Coppola at the lineup. Appellant's objection was that due to the great lapse of time between the original incident in November, 1971, and the showing of photographs approximately a year later, followed by a lineup two months later, there is a possibility that misidentification has resulted. Appellant suggests that since Mathis and Ashford were in the presence of Cianci at most one hour, since during most of that time Mathis was engaged in conversation with Baccari while Cianci stood by about ten yards away, and since this incident occurred late in the afternoon on a dark and dreary November day nearly a year before the identification took place, any identification of Coppola at the lineup probably resulted from reviewing the pictures rather than actually seeing him...

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