United States v. Mandello, 13830.

• Decision Date: 04 June 1970
• Docket Number: No. 13830.,13830.
• Citation: 426 F.2d 1021
• Parties: UNITED STATES of America, Appellee, v. Mauro M. MANDELLO, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

426 F.2d 1021 (1970)

UNITED STATES of America, Appellee, v. Mauro M. MANDELLO, Appellant.

No. 13830.

United States Court of Appeals, Fourth Circuit.

June 4, 1970.

H. Bradley Evans, Jr., Alexandria, Va. (Court-appointed) Evans & Economou, Alexandria, Va., on brief for appellant.

C. P. Montgomery, Jr., Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., and David H. Hopkins, Asst. U. S. Atty., on brief) for appellee.

Before HAYNSWORTH, Chief Judge, SOBELOFF, Circuit Judge, and RUSSELL, District Judge.

PER CURIAM:

The appellant was the manager of the Non-Commissioned Officers' Club (NCO) at Fort Myer, Virginia. As such he was charged with the responsibility of accounting for the monies derived from the several operations of the Club. Included in such Club facilities were certain coin-operated machines. The appellant was indicted, under Section 641, 18 U.S.C., for the conversion to his own use of that portion of the receipts of these coin-operated machines due the Government on certain specified occasions.

The appellant was represented at the trial by court-appointed counsel. At such trial, appellant conceded that he had received the monies in question but, disclaiming emphatically any embezzlement of such funds, he contended that his admitted failure properly to account for same arose out of inadvertence or mistake.

Following his conviction, the appellant retained private counsel and thereupon through such counsel moved for a new trial. In support of such motion, various affidavits setting forth certain circumstances and naming some individuals whose testimony, it was thought, might have proved helpful to appellant's defense, had they been called as witnesses, were filed by the appellant. Primarily, the motion was based on the appellant's contention that his court-appointed trial counsel had failed to demand the tapes showing the daily receipts realized from the Club's several operations. These tapes, it was suggested, might have shown that the funds derived on the dates in question from the operation of the coin-operated machines had been subsequently recorded on a later date and were thus actually received by the Government, though tardily reported. Such possible evidence is described in appellant's brief as being "the crux of his defense". The appellant asserted in his affidavit, filed in support of his motion for a new trial, that he had requested his trial counsel to secure such tapes and to subpoena certain witnesses whose testimony would support his reliance on the tapes as evidence favorable to his defense. There was, however, no reference to these tapes during the trial other than in this obscure statement during cross-examination of the appellant:

"Q. Now, in answer to your attorney\'s question as to what explains the fact that receipts that are shown on the Michael\'s Company books for the vending income, the explanation for why it is not shown on the daily receipt forms, the daily activity\'s report for the same day?

* * * * * *

"A. I don\'t know if I inadvertently misplaced them, but I said I never knowingly converted any of these receipts to my own, for my own use. Now, it is very possible I would have to check for the next day\'s receipt that my safe balanced out over, that I would have to ring it up."

The possible existence of the tapes, together with their possible relevance to appellant's "theory of defense", was not really brought in issue by the appellant, so far as the District Court was concerned, until the motion for a new trial; and then there seemed to be some doubt that such tapes were still available.

The motion for a new trial was denied. The appellant thereupon secured the appointment of other counsel to perfect this appeal. By his appeal, he contends that the District Court failed properly to instruct the jury on "the theory of his defense" and that he was denied effective representation by court-appointed counsel at trial.¹

We affirm.

The two grounds of appeal are inter-dependent. The gravamen of appellant's complaint is that, through the ineffective representation of his trial counsel, the tapes on which were recorded daily the actual receipts of monies by the Club and which might, if available, have given support to appellant's contention that the...