United States v. Curry

• Decision Date: 29 January 1973
• Docket Number: No. 72-1831 Summary Calendar.,72-1831 Summary Calendar.
• Citation: 471 F.2d 419
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Otis Thurmond CURRY and Vincent Anthony Ciraolo, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

471 F.2d 419 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Otis Thurmond CURRY and Vincent Anthony Ciraolo, Defendants-Appellants.

No. 72-1831 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

January 9, 1973.

Rehearing Denied January 29, 1973.

Richard Gale, Louis K. Lesperance, Miami, Fla., for Curry.

B. Paul Pettie, Jr., Pompano Beach, Fla., for Ciraolo.

Robert W. Rust, U. S. Atty., Charles O. Farrar, Jr., Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Before THORNBERRY, COLEMAN and INGRAHAM, Circuit Judges.

THORNBERRY, Circuit Judge:

Appellants Curry and Ciraolo were convicted below of possessing and concealing counterfeit currency in violation of 18 U.S.C.A. § 472, of exchanging and transferring counterfeit currency in violation of 18 U.S.C.A. § 473, and of conspiracy to commit both of these offenses in violation of 18 U.S.C.A. § 371. On appeal they urge three grounds for reversal. Finding each ground to be without merit, we affirm the convictions.

Excluded Testimony of Frightened Witness

At the hearing on defendants' motion to suppress evidence, John Morton, an apparently innocent party who chanced to be on Curry's business premises when counterfeit currency was delivered, related in detail his recollection of the events that transpired there. Curry had a front office and a back office separated by a partition. Morton testified, inter alia, that except for a brief time when Curry entered the back office to close the door he, Curry, was always in the front office with Morton. Further, Morton testified he did not know whether Curry from his position in the front office could see into the back office where the counterfeit money was delivered. At the close of the suppression hearing testimony the trial judge denied the motion to suppress and declared the court in recess until the afternoon session.

During the recess Morton told Curry's counsel that a government agent had made a threatening remark to him before the suppression hearing and had made him afraid to testify. As told by Morton, the remark was: "If you put your foot in this thing you'll get burned." Counsel for Curry brought this matter to the attention of the court at the beginning of the afternoon session, and Morton stated under oath that the government had intimidated him, as described above. In response to the judge's questions Morton affirmed that his earlier testimony had been the truth and was unaffected by the intimidation except for one particular: but for the intimidating remark Morton would have testified that Curry definitely could not have seen into the back office from his position in the front office rather than professing ignorance on this point. The government agent alleged to have intimidated Morton took the witness stand and categorically denied doing so. The trial judge denied motions to exclude the testimony of the government witnesses and to dismiss the prosecution.

The trial began. After the first day of trial, Morton told Curry's defense counsel that he was afraid to testify voluntarily; thereafter Curry's counsel was unable to locate him for service of a subpoena. Morton being unavailable to testify at trial, the trial judge permitted defense counsel to introduce Morton's suppression hearing testimony into evidence, but refused to admit Morton's later statements regarding the intimidation and the change he would have made in his testimony on Curry's ability to see into the back office.

Appellant Curry's first argument on this appeal is that the trial judge erred in excluding Morton's later statements, or at least that portion of them which modified his original version of the facts. Since Morton was unavailable to testify at trial and had been subject to cross-examination by all parties at the suppression hearing, his former testimony at the hearing was clearly admissible as an exception to the hearsay rule. See C. McCormick, Evidence §§ 254-62 (2d ed. 1972). Further, we must agree with appellant that Morton's later sworn testimony in which he modified his earlier statements should likewise have been admitted. This later testimony had a status under the hearsay rule identical to that of the suppression hearing testimony, and, if the earlier statements concerning Curry's ability to see into the back room were relevant, so were the later ones.

Although we conclude that the trial judge should have admitted this later statement, we cannot agree that his failure to do so constituted reversible error. First, the evidence of Curry's guilt was overwhelming. His accomplice Wilkerson testified at length and in detail concerning his agreement with Curry, under which Wilkerson delivered the counterfeit currency to Curry's place of business to be resold, and the two government agents who posed as prospective buyers strongly corroborated this testimony. The counterfeit bills themselves seized in Curry's back office provided further strong corroborating evidence. Secondly, we do not perceive any significant exonerating effect which Morton's amendment to his original testmony might have had. Since Morton originally placed Curry in the back office...