United States v. Largo
Decision Date | 21 June 1965 |
Docket Number | 14790.,No. 14789,14789 |
Citation | 346 F.2d 253 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Frank LARGO and Joseph Tenuto, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. John REYNOLDS, Defendant-Appellant. |
Court | U.S. Court of Appeals — Seventh Circuit |
Frank Oliver, Doris A. Coonrod, Chicago, Ill., for appellants.
Edward V. Hanrahan, U. S. Atty., John Peter Lulinski, John Powers Crowley, Lawrence Jay Weiner, Assts. U. S. Attys., Chicago, Ill., for appellee.
Before KNOCH, SWYGERT and MAJOR, Circuit Judges.
All three defendants-appellants, Frank Largo, Joseph Tenuto, and John Reynolds, were charged with violations of Title 18, U.S.C. §§ 472, 473 and 371, possession and transfers of counterfeit money and conspiracies to do the same. The jury found all three to be guilty. Frank Largo and John Reynolds were sentenced to serve ten years each and Joseph Tenuto to serve eight years.
The jury was selected and admonished by the Court with respect to newspaper accounts of the case. Trial was adjourned to the following day, March 12, 1964.
At the opening of Court on March 12, 1964, the defendants moved for mistrial on the basis of an article from the CHICAGO SUN-TIMES of that date.
The Trial Judge called the jurors into the courtroom one after the other and asked each whether he had seen any articles relating to the trial.
One juror said that she had read only a headline which she could no longer remember. Another said he had read an article in the CHICAGO'S AMERICAN. A third juror said that he had read only the first words of a CHICAGO SUN-TIMES article but had put it aside when he came across the Trial Judge's name. A fourth juror said he saw the headline and skipped it. All of these last three jurors denied that anything they had read would affect their impartiality as jurors. The rest of the jurors denied seeing any articles pertaining to the case.
The Trial Judge admonished all the jurors not to read newspaper articles relating to the trial. He denied the motion for mistrial.
At the afternoon session of the same day, the defendants again moved for mistrial on the basis of an article in the CHICAGO'S AMERICAN of the night before. This motion was also denied. The Court stated:
"Let the record show that the Court has read this article, that the Court did poll the jury, and the Court is of the opinion that as a result of the examination of the juror who read this article that he was not prejudiced and nothing to impair his impartiality."
The two articles in question read as follows:
At the close of the day the Trial Court again admonished the jury respecting news, radio or television reports.
Prior to retiring to consider their verdict, the jury were instructed as to the evidence which they might consider and were reminded that they must completely disregard press, radio, or television reports.
There was overwhelming proof of defendants' guilt. Secret Service Agent Robert Motto testified that he purchased a sample of counterfeit money from defendants Reynolds and Tenuto; that he arranged with defendants Tenuto and Largo to buy $100,000 in counterfeit money for $15,000 and $29,000 in counterfeit money for $4,300; and that defendant Reynolds delivered to Agent Motto, at the Morrison Hotel in Chicago, a satchel containing $29,000 in counterfeit money, in the presence of defendant Tenuto. All three defendants were arrested as they left the hotel. Other agents and police officers corroborated Agent Motto's testimony as to the various meetings he had with the defendants.
On recall, Agent Motto's testimony provided the foundation for offer and admission into evidence of a tape recording of a part of his conversations with defendants Tenuto and Largo.
On this appeal, the defendants contend that they:
"* * * were deprived of a fair trial because the jury was contaminated by prejudicial newspaper publicity, the trial judge further failing to take proper and necessary steps to vaccinate the jury against the effects of such contamination."
The defendants rely on Coppedge v. United States, 1959, 106 U.S.App.D.C. 275, 272 F.2d 504, 507; Marshall v. United States, 360 U.S. 310, 312-313, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959); and United States v. Accardo, 7 Cir., 1962, 298 F.2d 133, 136, with particular emphasis on Accardo, where this Court said:
"He the Court should have, by the careful examination of each juror, out of the presence of the others, determined the effect of the articles on those who had read them and whether they had discussed the articles with others. citing Coppedge These individual interviews would have tended to overcome reluctance to speak out."
In the case before us the jurors were called into the courtroom one by one, but each was allowed to remain in the courtroom so that only the first juror called was interviewed out of the presence of other jurors.
The jury were well aware that the tape recording contained the voices of defendants Tenuto and Largo but not that of defendant Reynolds as they themselves heard the tape. The Secret Service Agent who made the recording, the Assistant U. S. Attorney who tried the case and counsel for defendant Reynolds, all pointed out to the jury that Reynolds' voice was not on the tape. Incidentally, his presence and statements made by him were clearly established by the evidence of the Agents who heard him speak. The Assistant U. S. Attorney cited as a source of information in the newspaper articles denied in open court that he ever made any such statements.
The U. S. Supreme Court has held that the Constitutional guarantee is satisfied "if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751 (1961); Beck v. Washington, 369 U.S. 541, 557, 82 S.Ct....
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...919-920 (7th Cir. 1964), Judge Swygert pointed out that "Accardo did not set down such a rigid rule."5 Again, in United States v. Largo, 346 F.2d 253, 256 (7th Cir. 1965), the majority went no further than to reiterate the preference for this practice and hint that in a close case the type ......
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