United States v. McGovern, 72-1356 to 72-1359.

• Decision Date: 25 June 1974
• Docket Number: No. 72-1356 to 72-1359.,72-1356 to 72-1359.
• Parties: UNITED STATES of America, Appellee, v. William F. McGOVERN, Defendant, Appellant. UNITED STATES of America, Appellee, v. Frank M. WOODS, Jr., Defendant, Appellant. UNITED STATES of America, Appellee, v. Louis J. DiPIETRO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Alfred J. GOULETTE, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

499 F.2d 1140 (1974)

UNITED STATES of America, Appellee, v. William F. McGOVERN, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Frank M. WOODS, Jr., Defendant, Appellant.

UNITED STATES of America, Appellee, v. Louis J. DiPIETRO, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Alfred J. GOULETTE, Defendant, Appellant.

Nos. 72-1356 to 72-1359.

United States Court of Appeals, First Circuit.

Argued January 7, 1974.

Decided June 25, 1974.

Joseph C. Delcore, Everett, Mass., with whom Alfred Paul Farese, Everett, Mass., was on brief, for appellants.

Henry H. Hammond, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty. of Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

After a jury trial lasting 18 days William F. McGovern, Alfred J. Goulette, Frank M. Woods, Jr., and Louis J. DiPietro were found guilty of fraudulently making counterfeit Federal Reserve notes, in violation of 18 U.S.C. § 471.¹ We discuss in turn appellants' contentions, none of which we find to warrant reversal.

Appellants complain that the government put leading questions to its principal witness, Raymond Scarino, the printer of the bills. Indicted with appellants, Scarino pleaded guilty before trial. His testimony was rambling, unresponsive and on occasion inconsistent, and the Assistant United States Attorney sometimes resorted to leading questions to which counsel for appellants strenuously objected. The court sustained many of the objections, admonished the prosecutor, and instructed and cautioned the jury. Cross examination of Scarino, much of it focussing on his vagaries and his relationship to the government, filled over 800 pages of transcript.

The evil of leading a friendly witness is that the information conveyed in the questions may supply a "false memory". United States v. Durham, 319 F.2d 590, 592 (4th Cir. 1963). 3 J. Wigmore, Evidence § 769 et seq. (Chadbourne rev. 1970). In spite of this danger, however, leading questions sometimes must be tolerated if what the witness knows is ever to become available: the witness' memory may be temporarily exhausted; the witness may be disoriented or incapable of concentration; the witness may misunderstand what the questioner wants to know. On those and other occasions some degree of leading, skirting the fine line between stimulating an accurate memory and implanting a false one, may be allowed; because the circumstances vary from case to case, and because the trial judge is best situated to strike a practical and fair balance, he has extensive discretion over the phrasing of questions. 3 J. Wigmore, supra at § 770.

But appellants contend that the questioning was here so grossly suggestive as to be beyond the pale. Cf. Nurnberger v. United States, 156 F. 721, 731-735 (8th Cir. 1907). We do not agree. The district court was assiduous and in large part successful in keeping examination within bounds. It is true that even if the answer is excluded, a question may already have done its harm by telegraphing information. But improper questions, singly or cumulatively, were neither so suggestive nor so numerous as to seem capable of restructuring Scarino's memory. Moreover, given Scarino's unusual disorientation the government was entitled to some leeway in trying to focus his attention on relevant matters. Viewing his entire testimony, we think the jury, having been cautioned repeatedly against the dangers of leading and having the benefit of exhaustive cross examination, remained able to weigh his testimony and credibility.

Next, appellants complain of the government's failure to amend its bill of particulars before trial so as to show that Scarino had been guided to Wellington Circle not by DiPietro, as represented in the four-page bill filed six months before the trial, but by one Elaine Spina. Scarino had changed his story after the bill was filed, but the prosecutor neglected to furnish the defense with this information. The correct information came out, however, in the government's opening statement and also, on the second day of trial, in Scarino's testimony. Nearly a week later the defense sought a mistrial, saying it might have investigated Spina had it known of her claimed involvement. In denying the motion for mistrial, the district court emphasized that it did not condone the government's oversight but found the failure to correct the driver's name earlier of insufficient magnitude for a mistrial. The defense never sought to call Elaine Spina nor did it represent that it could not find her. The government, indeed, offered to assist in locating her; and according to Scarino she was a friend of McGovern's. We find no abuse of discretion. From the government's apologetic explanation, the court could believe that the prosecutor had not designedly withheld the information. And as the correct version was disclosed at the very outset of a trial which was to continue for three weeks, the defense had time to check into Spina's possible value as a witness. As we said in United States v. DeLeo, 422 F.2d 487, 499 (1st Cir.), cert. denied, 397 U.S. 1037, 90 S.Ct. 1355, 25 L. Ed.2d 648 (1970):

"Keeping in mind that the prosecutor\'s duty of disclosure is imposed to insure fairness to the accused rather than to punish the prosecutor or the public, Brady v. Maryland, supra, 373 U.S. 83 at 87, 83 S.Ct. 1194, 10 L. Ed.2d 215 . . . we believe the absence of conceivable prejudice to the accused completely disposes of his objection."

For the same reason we find no merit in appellants' complaint that the government improperly delayed releasing information about rewards promised to Mary Dunkman in return for her testimony. During redirect examination the Assistant United States Attorney, as he was duty bound, see Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L. Ed.2d 104 (1972), made it known that Dunkman had been promised a favorable letter to state authorities. Appellants say that disclosure came too late, especially in view of their pretrial request for disclosure of rewards and inducements. But the witness was still on the stand, and the court allowed the defense further cross examination. See United States v. Harris, 498 F.2d 1164 (3d Cir. 1974). There was no prejudice, and there were circumstances from which the court could have believed that the government's delay until the eleventh hour was not calculated. Cf. United States v. Gerard, 491 F.2d 1300 (9th Cir. 1974) (Aldrich, J.).

Appellants' next contention concerns the introduction into evidence of sheets of ten dollar bills. Because Scarino mistakenly testified on recross examination that these were stored in a cellar box and turned over to federal agents, appellants assert the government used "false testimony." Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L. Ed.2d 1217 (1959). But when the exhibit was offered the prosecutor had told the court and...