United States v. Garguilo

Decision Date24 October 1962
Docket NumberNo. 37,Docket 27516.,37
Citation310 F.2d 249
PartiesUNITED STATES of America, Appellee, v. Ralph GARGUILO and Joseph Macchia, Defendant-Appellants.
CourtU.S. Court of Appeals — Second Circuit

Harry H. Voigt, New York City, for appellant Ralph Garguilo.

Anthony G. Greco, Brooklyn, N. Y., for appellant Joseph Macchia.

Donald J. Cohn, New York City (Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, Andrew T. McEvoy, Jr., Asst. U. S. Atty., of counsel), for the United States.

Before LUMBARD, Chief Judge, and FRIENDLY and KAUFMAN, Circuit Judges.

FRIENDLY, Circuit Judge.

Ralph Garguilo and Joseph Macchia appeal from judgments of the District Court for the Southern District of New York, convicting them after a verdict under a single count indictment which charged the making of a likeness of a $10 bill in violation of 18 U.S.C. § 474. Because of a serious question raised by Macchia as to the sufficiency of the evidence against him, it is necessary to recount the testimony in some detail.

The Government's principal witnesses were Mario Villari, owner of Graphic Printing Company, a co-defendant who pleaded guilty, and Albert Della Monica, a photographer and long-time friend of the Garguilo family, whose innocence was not questioned. Villari first met Garguilo in Magistrate's Court on August 17, 1960, while both were waiting to pay traffic fines; Villari told Garguilo he was in the printing business and gave Garguilo his card. About a month later Garguilo came to Villari's shop on West 53rd Street in Manhattan. Joseph Macchia was with him. According to Villari, Garguilo introduced Macchia as "Tony", saying "that he is buddy-buddy, that they do everything together as a group." Garguilo took Villari "on the side", approximately 25 feet away from Macchia, and, placing his arm around Villari's shoulder, asked Villari to join him in a counterfeiting endeavor; Villari said he was not interested and the two visitors left about ten minutes after they had arrived. There is no evidence that Macchia talked about counterfeiting or anything else.

Sometime during the summer of 1961, Garguilo came to Della Monica's photography studio in Brooklyn and asked to be taught how to develop a picture and make a copy. He came "several times," "about a week or so". He had Macchia with him "only once or two" of these times. Garguilo introduced Macchia to Della Monica as "my friend, Joe". After Garguilo had learned how to develop pictures, he "started to practice himself" and apparently did so regularly at Della Monica's studio; Macchia was there "two or three times" in all, never alone but always with Garguilo. Garguilo borrowed a camera and other photographic equipment from Della Monica, explaining that he was going into the advertising business and needed the camera to make copies. Inquiries by Della Monica as to Garguilo's progress produced no satisfactory response. There was no evidence that Macchia witnessed the loan of the equipment or participated in its use.

In July, 1961, Garguilo returned to Villari's printing shop. The record is not altogether plain whether there were two or three visits during July, but it is clear that Garguilo was alone on each of them. Assuming that there were three, the first was devoted to a general request for help, which Villari declined, as he had a year before; on the second, Garguilo asked Villari to check his negatives of $10 bills, which Villari again refused to do; on the third, Villari "succumbed", looked at the negatives, which Garguilo carried in a newspaper, through a "view box" and pronounced them too dark, whereupon Garguilo destroyed them.

Garguilo again came to Villari's shop in early August, 1961. This time Macchia accompanied him. Garguilo had brought some more negatives which Villari viewed and found "pretty good" — good enough so that he "burnt in" a plate. This was done with Macchia two or three feet away, "very close". The plate being blurred and inadequate, Garguilo erased it, whereupon he and Macchia "went away. They took the negatives with them and went away." Who carried the negatives is not clear. Villari testified this was the last he saw of Macchia.

Garguilo came to Villari's shop a few days later with some more negatives. Again a plate was "burnt in", found inadequate, and destroyed.

One of Garguilo's visits to the printing shop was witnessed by Secret Service Agent Motto. He testified that on August 11, 1961, he saw Garguilo and another man drive up in an automobile. Garguilo got out, carrying a newspaper wrapped tightly under his arm, and went into the building where Villari's shop was located. He remained for approximately one hour. Then he and Villari came out, got in the car in which the other man was seated, and drove off. Motto could not identify the man who stayed in the car; he did estimate the man's age, height and weight, but there is nothing to tell whether these estimates bear any correspondence with Macchia or whether the unidentified man was the driver. Toward the end of August, Secret Service Agents searched Villari's shop and found the erased plate of early August, which bore Garguilo's fingerprints.

The only other evidence against Macchia was that, when brought before an Assistant United States Attorney for questioning, he admitted that he knew Garguilo, that on several occasions he accompanied Garguilo to the photographer in Brooklyn, and that several times he went to a printing place with him. He claimed, however, "that he never went up to the printer's establishment but merely sat on the stoop." Macchia also admitted that he knew what was in the newspaper taken out of the car by Garguilo, but refused to say what this was.

Garguilo's sole claim on appeal relates to one item in the charge. Neither defendant had taken the stand. Their counsel had not requested the judge to instruct the jury that no inference against them was to be drawn from this. See 18 U.S.C. § 3481; Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L. Ed. 257 (1939). Neither had counsel requested that no instruction on the subject be given. The judge sua sponte included the following in his charge:

"The defendants have remained silent, they have not taken the stand, and I charge you that under our law it is their constitutional right to remain silent and that that fact must not be considered by you in any way whatever. You must not even refer to it during your deliberations.
"As I told you at the outset of my charge it is the government\'s duty to prove the defendants, each defendant, guilty beyond a reasonable doubt, and the burden of proof rests upon the government at all stages of the trial. It never shifts to the defendants. The defendants are presumed to be innocent as I have already told you, and they had a right to remain silent, and you must not draw any inferences from the fact that they have remained silent and you must not allude to it in any way during your jury deliberations."

Not disputing that an instruction on the subject could hardly have been better phrased, assigned counsel for Garguilo argues that it is error for the judge to give any instruction unless requested by the defendant to do so, since there is a risk that, the failure to testify being thus spotlighted, the light will penetrate the curtain sought to be drawn over it.

There may be enough in this so that, as Judge Learned Hand said for this Court many years ago, "It is no doubt better if a defendant requests no charge upon the subject, for the trial judge to say nothing about it * * *." Becher v. United States, 5 F.2d 45, 49 (2 Cir.1924), cert. denied, 267 U.S. 602, 45 S.Ct. 462, 69 L.Ed. 808 (1925). But we agree also with the rest of Judge Hand's statement: "but to say that when he does, it is error, carries the doctrine of self-incrimination to an absurdity." See also United States v. Tannuzzo, 174 F.2d 177 (2 Cir.), cert. denied, 338 U.S. 815, 70 S.Ct. 38, 94 L.Ed. 493 (1949); United States v. Piscitello, 231 F.2d 443 (2 Cir.), cert. denied, 352 U.S. 857, 77 S.Ct. 89, 1 L.Ed.2d 68 (1956). It is far from clear that such an instruction is prejudicial to a defendant; the chances are rather that it is helpful. The jurors have observed the defendant's failure to take the stand; in the absence of instruction, nothing could be more natural than for them to draw an adverse inference from the lack of testimony by the very person who should know the facts best. And "despite the vast accumulation of psychological data, we have not yet attained that certitude about the human mind which would justify * * * a dogmatic assumption that jurors, if properly admonished, neither could nor would heed the instructions of the trial court that the failure of an accused to be a witness in his own cause `shall not create any presumption against him.'" Bruno v. United States, supra, 308 U.S. at 294, 60 S.Ct. at 200.

Macchia claims that the evidence was insufficient to warrant submission to the jury of the case against him as an aider or abettor. Insofar as his claim relates to alleged lack of knowledge of the crime in which Garguilo was engaged, it is baseless — an inference of such knowledge would be not only permissible but virtually inescapable if the jury credited the testimony that Macchia was "very close" to Garguilo and Villari when the telltale plate was made, and that Macchia had admitted knowing what was in the newspaper that Garguilo had removed from the car. But knowledge that a crime is being committed, even when coupled with presence at the scene, is generally not enough to constitute aiding and abetting. In Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919 (1949), the Supreme Court said, quoting Judge Learned Hand in United States v. Peoni, 100 F.2d 401, 402 (2 Cir.1938):

"In order to aid and abet another to commit a crime it is necessary that a defendant `in some sort associate himself with the venture, that he

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