United States v. Galardi, 72-2817

• Decision Date: 17 May 1973
• Docket Number: 72-2743,72-2777.,No. 72-2817,72-2817
• Parties: UNITED STATES of America, Appellee, v. Jack Edward GALARDI, Appellant. UNITED STATES of America, Appellee, v. Angel Jerrold GALARDI, Appellant. UNITED STATES of America, Appellee, v. Peter Michael LAFKAS, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

476 F.2d 1072 (1973)

UNITED STATES of America, Appellee, v. Jack Edward GALARDI, Appellant.

UNITED STATES of America, Appellee, v. Angel Jerrold GALARDI, Appellant.

UNITED STATES of America, Appellee, v. Peter Michael LAFKAS, Appellant.

Nos. 72-2817, 72-2743, 72-2777.

United States Court of Appeals, Ninth Circuit.

April 4, 1973.

Rehearing Denied May 17, 1973.

COPYRIGHT MATERIAL OMITTED

William C. Miller, Los Angeles, Cal., for appellant, Jack Edward Galardi.

William D. Keller, U. S. Atty., Eric A. Nobles, Asst. U. S. Atty., Crim. Div., David H. Fox, Asst. U. S. Atty., Asst. Chief, Crim. Div., Los Angeles, Cal., for appellee.

Michael F. Richman (argued), Ball, Hunt, Hart, Brown & Baerwitz, Long Beach, Cal., for appellant, Lafkas.

Michael D. Nasatir (argued), Nasatir, Sherman & Hirsch, Beverly Hills, Cal., for appellant, Angel Jerrold Galardi.

Before BROWNING, KILKENNY and TRASK, Circuit Judges.

KILKENNY, Circuit Judge:

Appellants appeal from certain judgments of conviction and sentences. Count One charges the Galardis with conspiracies in violation of 18 U.S.C. § 371; Counts Two and Four charge the Galardis with violations of 18 U.S.C. § 2115 and 18 U.S.C. § 2 in aiding and abetting another in forcibly breaking into a Post Office building; Counts Three and Five charge the Galardis with a violation of 18 U.S.C. § 641 in receiving stolen United States Postal Money Orders; Count Six charges the Galardis and appellant Lafkas with a violation of 18 U.S.C. § 371 in conspiring to commit an offense against the United States by transporting in foreign commerce certain United States Postal Money Orders of a value exceeding $5,000.00, which money orders had been stolen; Count Seven charges appellant Lafkas with a violation of 18 U.S.C. § 2314 and 18 U. S.C. § 2 in aiding and abetting appellant, Jack Edward Galardi, in transporting in foreign commerce postal money orders of a value exceeding $5,000.00. Additionally, Lee Spencer Parker was named as a co-defendant in Counts One through Six. Prior to trial, he entered a plea of guilty to Counts One, Two and Four and then appeared as a principal witness for the government. Angel Jerrold Galardi was sentenced to imprisonment for a term of five years on each of the Counts One through Six with the sentences to run concurrently, a total period of incarceration of five years. Jack Edward Galardi was sentenced to imprisonment for a term of five years on each of the Counts One through Seven with the sentences to run concurrently, a total period of incarceration of five years. Peter Michael Lafkas was sentenced to imprisonment for a term of four years on each of Counts Six and Seven with the sentences to run concurrently, a total period of incarceration of four years.

THE GALARDI APPEALS

Inasmuch as the Galardi appeals present essentially the same contentions, we shall treat them together.

The evidence, viewed in a light most favorable to appellee, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), Vitello v. United States, 425 F.2d 416, 421 (CA9 1970), cert. denied 400 U.S. 822, 91 S.Ct. 43, 27 L.Ed.2d 50 (1970), convincingly establishes that the Galardis actively participated in the robbery of two United States Post Offices in California during the summer of 1968. Stolen in the robberies were blank United States Postal Money Orders with a potential value of in excess of $200,000.00. The Galardis hid the money orders on the premises of a bar and warehouse which they owned in Long Beach. Subsequently, they entered into an agreement with appellant Lafkas to transport the money orders to Viet Nam where Lafkas would cash them on the black money market. Following through on this arrangement, over 1,600 of the stolen money orders were cashed in the Far East for more than $160,000.00. The money orders were recovered and received in evidence during the course of the trial. On a substantial number of the orders were the fingerprints of the appellants.

CONTENTIONS

(1). In claiming unreasonable pre-indictment delay, appellants point to the fact that the crime was committed in the summer of 1968 and that they were not indicted until September, 1971. The appellee responds by saying that much of the government's evidence was not secured until a few months prior to the indictment. It wasn't until May 24, 1971, that the co-conspirator Parker signed a sworn statement with reference to appellants' participation in the crime. As we read the record, the appellants have not brought themselves within the exceptions stated in United States v. Marion, 404 U.S. 307, 320-323, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), by showing that they were in any way prejudiced by the delay. The mere dimming of a memory is not sufficient. United States v. Griffin, 464 F.2d 1352, 1354 (CA9 1972). The assertion that a missing witness might have been useful does not show the "actual prejudice" required by Marion.

(2) Appellants' argument on post-indictment delay is also without merit. The record makes it clear that much of the delay was occasioned by a belief on the part of the United States Attorney that appellants wished to follow the procedure outlined in Rule 20, F.R.Crim.P. The appellants, upon arrest, were immediately admitted to bail. The trial judge found that appellants had shown no prejudice by the delay and that the claim of dimmed memory was conclusory and insufficient. His finding and conclusion are well supported by the record and by the authorities. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); United States v. Lewis, 406 F.2d 486 (CA7 1969), cert. denied 394 U.S. 1013, 89 S. Ct. 1630, 23 L.Ed.2d 39.

(3) Co-defendant Parker appeared as a witness for the government. During the course of his examination, the defense made reference to an alleged inconsistency between his testimony and his prior written statements. Later, the statements were admitted in evidence over appellants' objections. The judge ruled that appellants had emphasized an inconsistency between the statements and the testimony in the record. The record supports this view. In these circumstances, the statements were properly admitted. Kaneshiro v. United States, 445 F.2d 1266 (CA9 1971), cert. denied 404 U.S. 992, 92 S.Ct. 537, 30 L. Ed.2d 543.

(4) Next, appellants attempt to utilize Lenske v. United States, 383 F.2d 20 (CA9 1967), in their argument that the testimony before the grand jury should have been recorded. The author of Lenske criticized the government for recording and using only a part of the grand jury testimony. Tersely stated, Lenske has no application. Appellants do not argue that the facts of this case present "a clear indication of prejudice." United States v. Thoresen, 428 F.2d 654, 666 (CA9 1970).

(5) Appellants would have us abandon our time honored rule that the uncorroborated testimony of an accomplice is sufficient to convict. Such an action would require in banc consideration. Aside from that fact, the evidence of Parker, the accomplice, is amply corroborated by other evidence, for example, the fingerprints on the Orders. In any event, we are not inclined to depart from the rule stated in Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442, 495 (1917); United States v. Hibler, 463 F.2d 455, 458 (CA9 1972), and authorities therein cited. There is nothing in this record which would indicate a possible miscarriage of justice, such as mentioned in Hibler, p. 459.

(6) Although the trial judge castigated counsel for Angel Galardi for continually ignoring the court's order with reference to responding to objections, and the judge at one point indicated that he might be compelled to employ a contempt proceeding, our examination of the record convinces us that the court's remarks were justified. Moreover, the record convincingly demonstrates that counsel was in no way intimidated by these remarks.

THE LAFKAS APPEAL

The Lafkas challenge to the convictions under Counts Six¹ and Seven calls for the construction of 18 U.S.C. § 2314, as applied to the record before us. In this argument, he concedes that the money orders were stolen and were transported in foreign commerce in violation of the first paragraph of § 2314,² and that the proof demonstrates that the money orders were altered before they were transported in foreign commerce and, consequently, fell within the exclusion of the section.³ The challenge involves the basic facts and a study of the history of the legislation.

The basic facts are simple. The money orders were "in blank" when stolen. The Galardis, with stolen equipment, filled in the value on each bond at $100.00. The money orders were forged and altered before they left the United States and placed in foreign commerce. United States Money Orders are "obligations" or "other securities" of the United States within the meaning of 18 U.S. C. § 2311, defining securities. See Nelson v. United States, 406 F.2d 1136, 1138 (CA10 1969); United States v. Powers, 437 F.2d 1160, 1161 (CA9 1971) American Express Money Orders. Clearly, the stolen money orders were forged and altered securities of the United States within the meaning of the exclusion to the statute unless, as argued by the government, the exclusion has no application to the paragraph making it a crime to transport stolen securities in foreign commerce.

The legislation in question is a splendid example of what happens to statutes when an exclusion or exception is taken out of context and placed with its initial subject and other existing laws in an overall revision or codification. On June 25, 1948, the Congress of the United States passed an Act to "... revise, codify and enact into positive law, Title 18 of the United States Code, entitled `Crimes and Criminal Procedure'". In this revision and codification, the Congress passed the present Section 2314, which is a combination of previously distinct offenses patterned into one section. See 62 Stat. 683, 806, 807.

A casual look...