United States v. Giuliano, 15973.

• Decision Date: 31 August 1967
• Docket Number: No. 15973.,15973.
• Citation: 383 F.2d 30
• Parties: UNITED STATES of America, Appellee, v. James Michael GIULIANO, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

383 F.2d 30 (1967)

UNITED STATES of America, Appellee, v. James Michael GIULIANO, Appellant.

No. 15973.

United States Court of Appeals Third Circuit.

Argued May 25, 1967.

Decided August 31, 1967.

Thomas F. Campion, Jr., Shanley & Fisher, Newark, N. J., for appellant.

David M. Satz, Jr., U. S. Atty., Newark, N. J. (Don Allen Resnikoff, Asst. U. S. Atty., on the brief), for appellee.

Before McLAUGHLIN, KALODNER and FREEDMAN, Circuit Judges.

OPINION OF THE COURT

GERALD McLAUGHLIN, Circuit Judge.

Appellant was convicted under 18 U. S.C. § 472 for the sale and possession of counterfeit United States Federal Reserve Notes on or about June 23, 1965 and for the possession of counterfeit United States Federal Reserve Notes on or about September 21, 1965.

The witnesses on behalf of the Government consisted of four Secret Service agents and Messrs. DeRose and Joya who are characterized as informers. There was no evidence offered on behalf of the defendant.

The first witness in the Government's case was DeRose. He testified that he sold counterfeit money in October 1964 for which offense he was arrested in December 1964. He said he was arrested again in February 1965 for selling counterfeit money in December 1964. He was asked:

"Q. And from whom did you purchase the money that you were arrested for selling?" He answered, "Giuliano".

He identified "Giuliano" in the courtroom as appellant.

DeRose stated that on the evening of June 23, 1965, with his partner Joya, he met Secret Service agents Szpak and Martin and "* * * I told them I had information you know, for some new counterfeit bills. * * * Well, we explained to them that we could get some new ten dollar bills. Q. From whom? A. Giuliano. Q. Who is Giuliano? A. The defendant over there (indicating). Q. The defendant over here (indicating)? A. Yes. The Court: Indicating the defendant." Joya was given $120 by the agents with which to purchase $1,000 of "Bogus tens". DeRose and Joya met Giuliano that same evening and the three arranged that Giuliano "* * bring down $1,000 of tens." A little later, according to DeRose, he and Joya met Giuliano. The latter agreed to give DeRose, the $1,000 of counterfeit ten dollar bills for $110. DeRose took $110 from Joya, gave it to Giuliano who in turn gave DeRose the $1,000 of counterfeits which DeRose turned over to Joya. After that at DeRose's house DeRose gave the counterfeit money to the agents. Sometime in the following July, as DeRose testified, he and Giuliano had an arrangement to meet for the purpose of DeRose buying more counterfeits from Giuliano. The latter appeared at the meeting place in his automobile but said DeRose in answer to the question, "And did you meet with him?" "No, he seen the two agents and he kept going." DeRose met Giuliano next on September 21, 1965 and "Well, made arrangements to purchase some more money." Giuliano came to DeRose's house later that night. DeRose asked him "Do you have the money?" He said, "`Yes' and he made a motion to give it to me." I said "Wait a minute. The law is here, get out of here. So he took off, and I turned around and went right to the house, me and Joya."

Tristan Joya corroborated DeRose respecting the transaction with Giuliano on June 23, 1965 and the meeting with Giuliano on September 21, 1965. He testified that Giuliano had counterfeits on him on September 21, 1965. Asked how he knew that he said "He told us that he had it and he — he pointed to them in his pocket."

Agent Szpak, as a witness, said he saw and heard the June 23, 1965 incident and substantiated the accounts of DeRose and Joya concerning it. With respect to September 21, 1965 he stated that DeRose advised him on that day that Giuliano had counterfeit money to sell. Szpak told the Assistant District Attorney in charge of the matter about this and was authorized by him to prosecute Giuliano. In accord with that he signed a complaint and obtained an arrest warrant. That night when Giuliano came out of DeRose's house and entered his automobile, agent Szpak arrested him. As he did, Giuliano threw a bundle out of side window of his car. Agent Rush retrieved that and turned it over to Szpak. The bundle was identified by the witness and contained approximately $2,000 of counterfeit ten dollar bills which were marked in evidence. Agent Rush who was present in the area of the DeRose house on the night of September 21st saw Giuliano throw the package out of his car, picked it up and gave it to Szpak. He identified the package in court. Agent Bechtle saw a meeting between Giuliano, DeRose and Joya earlier on the evening of September 21st. Agent Martin who was in charge of the detail was with agent Szpak on the night of June 23rd and largely corroborated the Government witnesses as to the meeting of DeRose and Joya with Giuliano, etc. He said that Giuliano was not arrested at the same time as the above stated arrests of DeRose and Joya because "We had a continuing investigation regarding Mr. Giuliano, we had other avenues of investigation regarding Mr. Giuliano and were seeking to get further corroboration of his guilt other than just the word of two defendants."

Following the defense trial pattern, there was no attempt in the summation for the defendant to dispute the facts as such which were testified to in the Government proofs. As to the latter the defendant's attorney merely attempted to attack the credibility of the Government witnesses. In summation he specifically told the jury that the defendant had not testified; he advised the jury that the defendant had the right to take that position and that the Court would so instruct the jury. The attorney said:

"I want to at this time make note of the fact, and I know you are possibly concerned with the fact that the defendant did not take the stand. This honorable Court will tell you in so many words that the law does not compel a defendant in a criminal case to take the witness stand and testify. And no presumption of guilt may be raised and no inference of any kind may be drawn from the failure of a defendant to testify. I wanted to satisfy your minds on that point because it possibly was bothering you." (Emphasis supplied.)

The trial judge did later explicitly so charge the jury saying:

"Now, in this particular case the defendant did not take the stand. I charge you that that is his right; it is not a privilege, it is a right, a right that\'s guaranteed to him by our system of jurisprudence. The fact that he did not take the stand may not be used by you in any respect or to any degree in drawing any inference unfavorable to him. He stands here accused of certain offenses to which he has pleaded not guilty, and there is no obligation for him to take the stand, nor may you draw any inference from his failure to take the stand which is unfavorable or adverse to his interests."

In the face of the above the argument is here advanced that the district attorney in summation "must be held to have made prohibited comment on defendant's failure to testify." This is the only point in the appeal that warrants discussion. It should be noted parenthetically that there was no objection to the complained of statements when they were made.

The Government summation opened with reference to the defense attempt to try the Government witnesses instead of the defendant. In speaking of the presumption of innocence the defense attorney said:

"* * * every person charged with the commission of a crime is presumed to be innocent until proven guilty beyond a reasonable doubt. Now, the presumption of innocence attaches to a defendant and covers him like a cloak from the beginning of the trial until the very end of the trial, until you finish with your deliberation." (Emphasis supplied.)

As to this the district attorney told the jury:

"And it is very true that that defendant over there has a cloak of innocence on him until all innocence is removed and he is found to be guilty beyond a reasonable doubt: that you will hear from Judge Meaney when he charges the jury.

"But like all garments, that cloak, as far as I am concerned, and you are the sole judges of the facts, has been removed, and it was removed a long time ago in this short period of the trial, because no matter what has been said, comments and so on, the evidence that has been brought to you by the people who have testified cannot be refuted as to the essential ingredients of what took place on June 23, 1965 and again on September 21st.

"You have heard various agents testify in addition to Mr. DeRose and Mr. Joya as regards what they saw and what they did. From the uncontradicted Government testimony, there was no difference between them, that as far back as December, 1964, when Tony DeRose was picked up, that Mr. Giuliano had sold him notes."

In the above entire context it is clear that the Government is demonstrating that there is no contradiction between the evidence of DeRose and Joya and that of the Secret Service agents. The prosecution argument strongly supported the credibility of DeRose and Joya which in the then just concluded defense summation had been once more bitterly attacked.

Later in his summation the district attorney continued with his exposition of the evidence as indicating that DeRose and Joya were telling the truth. He recalled the testimony of the agents that they had been enabled to observe Giuliano with DeRose and Joya because of the opportunity given them by the latter two. And in discussing the evidence by DeRose and Joya and their...