United States v. Crovedi

• Decision Date: 02 November 1972
• Docket Number: 18498-18500.,No. 18423,18423
• Citation: 467 F.2d 1032
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Emil CROVEDI et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

467 F.2d 1032 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Emil CROVEDI et al., Defendants-Appellants.

Nos. 18423, 18498-18500.

United States Court of Appeals, Seventh Circuit.

September 29, 1972.

Rehearing Denied November 2, 1972.

COPYRIGHT MATERIAL OMITTED

John Powers Crowley, Edward J. Calihan, Robert S. Bailey, Chicago, Ill., for defendants-appellants.

James R. Thompson, U.S. Atty., James S. Montana, Jr., Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before HASTINGS, Senior Circuit Judge, and FAIRCHILD and KERNER^*, Circuit Judges.

FAIRCHILD, Circuit Judge.

Defendants were convicted by a jury of (I) conspiracy¹ to steal and possess goods moving as an interstate shipment of freight and (II) theft² of certain cameras, photographic material, and film, part of an interstate shipment of freight from Polaroid Corporation. They had previously been convicted, under an earlier indictment, of the same substantive offense and (with others, convicted of other substantive offenses) of participation in a broader conspiracy. The earlier convictions were reversed by this court in United States v. Varelli³ for the reason that "two conspiracies were proved instead of the one charged" and that under the circumstances, related in the decision, the rights of the defendants in Varelli (including these and others) "were substantially prejudiced by a single trial without proper instructions."

After remand, pursuant to Varelli, the government obtained several superseding indictments. The one with which we are now concerned named as defendants Bambulas (who is not an appellant), Nielsen, Crovedi, Bratko, and Rossi. The facts appearing at trial under this indictment are adequately set out in Varelli under the heading "POLAROID SHIPMENT". We will refer only to such facts as necessary for discussion of the claims of error.

We affirm the convictions.

1. Restriction of cross-examination. The principal witnesses for the government were Patrick Schang and Richard Frederick, admitted participants in these offenses, who had pleaded guilty to the earlier indictment and were named as conspirators but not as defendants in this one. Both were in the apparent situation of giving devastating testimony against their former partners and of cooperating with the government in return for leniency for themselves. Both testified that they had moved their families from the homes they had at the time of the offenses and are presently employed and living with their families under assumed names. The court refused to require Schang and Frederick to give their present names, addresses, and employment. Defendants assign error.

The court not only had before it the general situation at the present, as well as the earlier, trial, but held a voir dire out of the presence of the jury.

Each described statements by one or more of the present defendants or others indicating he would have reason to fear for his life if he cooperated with the government. Each said he would refuse to give his present identification because of fears for the safety of his family and himself. Each said that the only people who had known him by his former name and knew his present identification were two FBI agents. It was developed that two participants in the Polaroid offense, Boscarino and Mendola, had met violent death, although there was no assertion as to who was responsible. Boscarino appeared to have been tortured before being killed. Each witness has testified against other persons in other criminal cases. There are at least overtones suggesting that they were members of a criminal community of some sort and are violating a code.

We find no abuse of discretion in a determination that these witnesses had reason to fear that disclosure of their present identities would endanger themselves and their families. Many facts, very probably the most significant in raising questions concerning their credibility, were fully explored on cross-examination.

Defendants seem to argue that the general rule of Alford⁴ and Smith v. Illinois⁵ entitling a defendant to ask a government witness where he lives is an unvarying absolute, not subject to any discretionary exception where the personal safety of the witness would be endangered.

This circuit has concluded that there is such an exception for the reasons explained in a decision involving the same Polaroid shipment, a superseding indictment after Varelli, and the witness Schang.⁶ Other decisions of this and other circuits to the same effect are there cited.

Defendants' argument that Shaw v. Illinois⁷ amounts to a holding by the Supreme Court that the exception does not exist is not persuasive. In Shaw the Supreme Court vacated the judgment and remanded a case in which a state appellate court had upheld withholding of a witness' address "to protect her from a possible reprisal".⁸ On remand, the state court decided the other way, but noted that in fact the record contained "no evidence of danger to the witness".⁹ Shaw is consistent with the proposition that an exception may be made when there is proper support.

2. Instruction on the weight to be given a defendant's testimony. The court gave a standard instruction with respect to the jury's determination of the credibility of witnesses and weight of testimony. It included an admonition to consider the witness' interest, if any, in the outcome of the case. Two defendants, Bratko and Rossi, testified and asked for an instruction that a defendant who wishes to testify is a competent witness, and his testimony is to be judged the same way as that of any other witness. Instead the court gave an instruction which said, in part, "However, in weighing his testimony, the jury should consider the fact that the defendant has a vital interest in the outcome of this trial."

It is not error to give such an instruction, pointing separately to the defendant's interest in the outcome.¹⁰ Arguably it may be better practice, as has been suggested,¹¹ not to treat separately the interest of a defendant who testifies, and either to revise the general instruction so as expressly to include a defendant, where one has testified, or to use the phrasing requested here. We are not persuaded, however, that the instruction given was prejudicial.

3. Whether a statement of Nielsen was volunteered. When Nielsen was arrested, he was given appropriate warnings and responded that he had an attorney and did not want to talk about the matter. There was testimony that thereafter he volunteered two statements which tended to incriminate by suggesting that the proceedings against him must be based on information supplied by Schang. There is no issue concerning the voluntary character of these statements, but it is contended that a third statement was not volunteered. The claim is that the statement was a response to interrogation, and that the interrogation was unlawful because of Nielsen's assertion that he did not want to discuss the matter.

The arresting agents had searched Nielsen's apartment at the time of arrest.¹² They found seven mounts for Polaroid color pictures and an instruction manual. The government introduced proof that items of this type were included in the shipment stolen in 1964 and that identical mounts were not produced after August, 1965. The arrest and seizure occurred April 19, 1966.

One of the agents testified that after arrival at the FBI office, "We asked him if he would sign this receipt acknowledging that these were all of the items that we had from his house and no others. He then stated, `You can buy that stuff in any drugstore that sells Polaroid film. I will never sign it.' Then he stated, `Maybe I should buy a Polaroid Land Camera.'"

The agent testified they did not ask him any questions about the items seized, except to sign the receipt. He acknowledged that the record of the prior trial showed that his testimony had been, "We asked him whether he had anything to say about him, and he said `You can buy that kind of junk in any drugstore ...'" etc. It seemed to be agreed that the word "him" was a typographical error. Asked at this trial by Nielsen's attorney, "Did you say, `We asked whether he had anything to say about them'" the agent answered "That is an incorrect statement. I did not ask him that." In subsequent answers he continued to testify that Nielsen's statement had been made in answer to the request for the receipt. The trial judge found that the statement was not the result of any interrogation, and ruled, after voir dire, that the agent's testimony concerning the statement would be admitted. The credibility of the agent was resolved by the trial judge, and we conclude his finding was not clearly erroneous.

4. Witness' prior unsuccessful attempt at identification. Frederick identified several defendants as persons who had participated in the Polaroid shipment activity. He also testified about the man he said he did not recognize and who was driving the stolen vehicle when it arrived at his garage. He was not asked whether he could identify him. Defense counsel brought out that the driver had been introduced to Frederick as Joe Rossi, but that Frederick did not know if he was in the courtroom or not. Schang later identified this driver as defendant Rossi.

During the first trial Frederick had attempted to identify the man who had been introduced to him as Rossi. He first said it was the man sitting behind Bambulas, but it appears that was Bratko. Frederick then said that was not the man and pointed out another. The latter was apparently one of the defense attorneys. It is evident from Varelli that there was a substantial group of defendants at that trial, and presumably a number of attorneys.

In the trial with which we are now concerned, Rossi's counsel brought out by cross-examination, including references to parts of the record of the earlier trial, that Frederick had testified he saw Rossi in the room and then pointed out the man behind Bambulas....