United States v. Garafolo

• Decision Date: 29 January 1968
• Docket Number: No. 15813.,15813.
• Citation: 385 F.2d 200
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sam GARAFOLO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

385 F.2d 200 (1967)

UNITED STATES of America, Plaintiff-Appellee, v. Sam GARAFOLO, Defendant-Appellant.

No. 15813.

United States Court of Appeals Seventh Circuit.

October 11, 1967.

Rehearing Denied November 1, 1967.

Opinion Vacated January 29, 1968.

COPYRIGHT MATERIAL OMITTED

Jerome Rotenberg, Chicago, Ill., for appellant.

Edward V. Hanrahan, U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., for appellee, Gerald M. Werksman, Michael B. Nash, Asst. U. S. Attys., of counsel.

Before HASTINGS, Chief Judge, and SCHNACKENBERG and KNOCH, Circuit Judges.

Opinion Vacated January 29, 1968. See 88 S.Ct. 841.

HASTINGS, Chief Judge.

Sam Garafolo appeals from a judgment of conviction and sentence of ten years, following a trial by jury, for violations of the federal narcotics laws.

He was found guilty on five counts of the possession of narcotics in violation of § 174, Title 21 U.S.C.A., and on five counts for the sale of narcotics in violation of § 4705(a), Title 26 U.S.C.A. He was found not guilty of conspiracy as charged in Count XI of the indictment. The other three defendants were found not guilty by the jury as to all counts in which they were named.

No question is raised on this appeal as to the sufficiency of the evidence to support the convictions.

Appellant charges five procedural or trial errors as the basis for a reversal of the convictions below.

The indictment charges that on five dates in late 1963 and early 1964 appellant possessed and sold heroin to one Ted Haney. A brief summary of the evidence follows.

Haney was a principal Government witness at the trial. He testified he was arrested for selling narcotics on October 31, 1963, and was taken to the office of the Narcotics Bureau in Chicago. While at the office he made a telephone call to appellant at the Web Tavern in Chicago, where appellant was employed, while Narcotics Agents Vernon Meyer and Clarence Cook listened on an extension telephone, in view of Haney. Appellant answered the phone and Haney arranged to meet him at the Web Tavern that evening on a business transaction. Haney was accompanied by Agent Cook to the meeting with appellant. After appellant served Haney at the bar, Haney told appellant he had $700 for "stuff." Appellant then gave Haney a brown manila envelope, in exchange for the money, and Haney left the tavern with Agent Cook. The contents of the envelope were tested and found to be heroin.

Haney testified that on each of four subsequent dates he made a telephone call from his home to appellant at the Web Tavern, while Agent Cook listened on an extension phone, in view of Haney. On each occasion he arranged to meet appellant at the tavern. He then went to the tavern in the company of Agent Cook, entered the tavern, gave appellant funds furnished by the Narcotics Bureau, and received a package, which he turned over to narcotics agents after leaving the tavern. The contents of the packages were tested and found to be heroin.

Narcotics Agent Meyer testified he monitored the call Haney made to appellant from the office of the Narcotics Bureau on October 31, 1963. Meyer corroborated Haney's testimony concerning his conversation with appellant. He also testified to his observations from outside the Web Tavern on the occasions of the five sales of heroin covered by the indictment.

Agent Cook testified he monitored four telephone calls made by Haney from Haney's home to appellant at the Web Tavern. He used an extension telephone, in view of Haney. He corroborated Haney's account of those conversations, and testified concerning the transactions between Haney and appellant in the Web Tavern on October 31, 1963.

Other narcotics agents testified to their observations inside and outside the Web Tavern on the occasions of the five sales of heroin. According to their testimony, Haney entered the tavern on the dates of the last four sales charged in the indictment and gave appellant money in exchange for an envelope or package. Their descriptions of the envelope or package matched the descriptions given by Haney.

Appellant's chief contention is that the trial court erred in refusing to give a tendered instruction that the jury could consider witness Haney's prior conviction of a felony in determining his credibility.¹ The trial court instructed the jury that evidence of a defendant's prior felony conviction could be considered only insofar as it might affect his credibility, and also instructed the jury that they should take into consideration the prior inconsistent statements of a witness in determining the credibility of the witness. Appellant argues that the giving of these specific instructions and the omission of a specific instruction on the effect of a prior felony conviction on a witness' credibility might have given rise to an implication that the jury should disregard witness Haney's felony conviction in determining his credibility.

Appellant has not shown prejudice resulting from the trial court's refusal to give the requested instruction. Early in its direct examination of Haney, the Government brought out his 1933 murder conviction. The fact of Haney's conviction was before the jury during his testimony. Although the trial court did not specifically call the conviction to the jury's attention, it gave the following broad, general instruction on the determination of credibility:

"It is your province to determine the credibility of the witnesses and the weight to be given to their testimony. In weighing the testimony of each witness, you should consider his relationship to the government or to the defendant, the witness\' interest, if any, in the outcome of the case, his manner of testifying, his candor, his fairness and intelligence and the extent to which he has been corroborated or contradicted, if at all, by other credible evidence, and if you believe that a witness willfully has sworn falsely to a material fact, you may disregard his testimony in part or in whole except insofar as it may have been corroborated by other credible evidence."

* * * * * *

"You should consider all of the facts and circumstances in determining what credence to give to the testimony of each witness."²

This instruction negated any implication that might have arisen from the omission of the requested specific instruction. The fact that Haney was a convicted murderer was one likely to have a strong impact on the minds of jurors, not one likely to be overlooked if not specifically called to their attention by an instruction. The effect of evidence of a witness' prior conviction is distinguishable from that of a defendant's prior conviction. If the latter is admitted an instruction is required to limit the jury's consideration of the evidence to the issue of the defendant's credibility as a witness, and to prevent consideration of the prior conviction in determining his guilt. A witness' prior conviction has a natural tendency to reflect on his veracity, and that tendency does not require the reinforcement of a specific instruction.

This court held in Ruvel v. United States, 7 Cir., 12 F.2d 264 (1926), that the giving of an instruction on a witness' prior conviction rests in the sound discretion of the trial court:

"We do not understand that any duty to give an instruction on impeachment by prior conviction rests on the court. In his sound discretion he should charge the jury on the subject of the credibility of witnesses. This was done in charging them that they are the sole judges of the credibility of witnesses, whose interest or bias should be taken into consideration, and that the jury should apply all tests which their common sense tells them should be applied in determining the weight of evidence. The court is not required to call attention to specific facts which may discredit witnesses, with possible exception, perhaps, of the cautionary charge as to accomplices, which is and ought usually to be given, and which was here fully given with respect to Mills." Id. at 265.

See also, United States v. Inciso, 7 Cir., 292 F.2d 374, 381 (1961), cert. den., 368 U.S. 920, 82 S.Ct. 241, 7 L.Ed.2d 135 (1961); United States v. Sorcey, 7 Cir., 151 F.2d 899, 901 (1945), cert. den., 327 U.S. 794, 66 S.Ct. 821, 90 L.Ed. 1021 (1946); Wainer v. United States, 7 Cir., 82 F.2d 305, 308 (1936). The instructions given in this case satisfy the Ruvel criteria. They inform the jury that theirs is the province to determine credibility, and that they should consider all of the facts and circumstances in determining credibility.

The District of Columbia Circuit recently considered an appeal involving this issue. The appellant had been convicted of violating various narcotics statutes. He argued on appeal that the trial court committed reversible error by refusing to give an instruction that the testimony of a police informer with prior narcotics convictions should be considered cautiously. In a per curiam opinion, the court affirmed:

"First we note that the jury was fully advised of the informant\'s criminal record and drug addiction, and the jury was instructed that it was the sole judge of the credibility and weight to be given to each witnesses\' testimony. Here the police informant\'s testimony was corroborated by other eyewitness testimony, and in these circumstances the refusal of the court to give a requested cautionary instruction is not reversible error. The trial judge is not an automation mechanically required in all cases to give cautionary instructions such as those requested even though, as we have said, generally the trial court would be `well advised\' to do so and would have been on sounder ground had it given the cautionary instruction here. Some discretion rests in the judge, however, and we cannot view his action in this case as an abuse of discretion warranting reversal." Hardy v. United States, 119 U.S.App.D.C. 364, 343 F.2d 233, 234 (1964), reh. den. en banc, 343 F.2d 235 (1964), cert. den., 380 U.S. 984, 85 S.Ct.

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