United States v. Meisch

• Decision Date: 30 December 1966
• Docket Number: No. 15492.,15492.
• Citation: United States v. Meisch, 370 F.2d 768 (3rd Cir. 1966)
• Parties: UNITED STATES of America v. John Joseph MEISCH, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

370 F.2d 768 (1966)

UNITED STATES of America v.John Joseph MEISCH, Appellant.

No. 15492.

United States Court of Appeals Third Circuit.

Argued April 15, 1966.

Decided December 30, 1966.

COPYRIGHT MATERIAL OMITTED

Michael A. Querques, Orange, N. J.(Querques & Isles, Orange, N. J., Harvey Weissbard, Orange, N. J., on the brief), for appellant.

Barry D. Maurer, Asst. U. S. Atty., Newark, N. J. (David M. Satz, Jr., U. S. Atty., Newark, N. J., on the brief), for appellee.

Before McLAUGHLIN, GANEY and FREEDMAN, Circuit Judges.

OPINION OF THE COURT

GANEY, Circuit Judge.

Defendant-appellant was convicted for having violated § 472 of Title 18, U.S.C.His alternative post-trial motions for judgment of acquittal and for a new trial were denied and he was sentenced to four years imprisonment.On this appeal he claims the indictment is defective because it failed to allege that he knew the Federal Reserve notes were counterfeit¹ and, therefore, the court erred in denying his motion for "judgment of acquittal".

The indictment reads:

"On or about the 14th day of May 1964 at Edison Township, in the State and District of New Jersey,

JOHN JOSEPH MEISCH

with intent to defraud, did possess, pass, utter and sell to Leonard Vecchione forty-three (43) counterfeited * * * ten ($10.00) dollars Federal Reserve notes * * *.

"In violation of Title 18 U.S.C., Section 472."(Emphasis added.)

The short answer to appellant's claim is that the phrase "with intent to defraud" includes a charge of knowledge on the part of the defendant that the notes were counterfeit.Rua v. United States, 321 F.2d 140(C.A.5, 1963).

Appellant sets forth a number of reasons why, in his estimation, the district court committed reversible error in refusing to grant him a new trial.Foremost among these is the trial judge's refusal to direct the prosecution to deliver to the appellant a secret-service case report.The report was made by a government agent who testified at the trial.We conclude that the refusal was reversible error warranting the granting of a new trial.

Only two witnesses, both of them being special agents of the United States Secret Service, testified against appellant at the trial on behalf of the prosecution.The first was Casimir M. Szpak; the other was Leonard A. Vecchione, the person named in the indictment as the one to whom appellant sold the counterfeited ten-dollar notes.Szpak testified that he witnessed the transaction between Vecchione and appellant on May 14, 1964, from a vantage point sixty feet way.

During cross-examination of Szpak, defense counsel learned from him that he had made two written statements pertaining to the matters about which he testified.The first was contained in a letter, dated September 11, 1964, addressed to the United States Attorney for the District of New Jersey at Newark.The second was a case report dated May 26, 1964, sent by Szpak to his superiors in Washington, D. C. Defense counsel sought permission from the trial court to see both statements, pursuant to subsection (b) of the Jencks Act, 18 U.S.C.A. § 3500(b).²The trial judge, after reading the letter, directed the prosecution to place it at defense counsel's disposal, which he did.In pertinent part, the letter stated under the heading "Details of offense":

On or about May 14, 1964, Special Agent Leonard Vecchione, acting in an undercover capacity, met defendant Meisch at the parking area of the Cork and Bottle Bar in Edison Township, N. J.As a result of this meeting, Meisch sold 43 counterfeit $10 F R notes (Exhibit A) to S A Vecchione for $65 in official Government Funds.This sale was covered by Special Agents C. M. Szpak and B. J. Mullady.

Defense counsel then cross-examined Szpak for the purpose of bringing home to the jury that the letter was completely barren of the details of the May 14 occasion about which Szpak had testified on direct examination.It is evident, we think, that the brief notation in the letter was not meant to be a detailed disclosure of what Szpak observed on May 14, and the trial judge correctly so admonished the jury.

The case report was not in court at the time Szpak was being cross-examined, and defense counsel reserved the right to recall and further cross-examine him after the defense had read the report.When Vecchione had finished testifying, the prosecution produced a government file containing, inter alia, a carbon copy of the case report dated May 26, 1964, signed by Szpak, and a carbon copy of the letter of September 11.After the trial judge examined all the papers in the file, he remarked that he saw nothing in them to which defense counsel was entitled that he did not already have, since he had the original letter.Aside from the case report, the other papers in the file were not pertinent to the issues involved and, therefore, appellant had no right to their production.Since defense counsel had been given the original letter, the court did not err in refusing to order that the copy be turned over to him.Rosenberg v. United States, 360 U.S. 367, 379, 79 S.Ct. 1231, 3 L.Ed.2d 1304(1959).There was nothing in the remaining papers which related to the subject as to which Szpak had testified on the stand.However, the case report is another matter.There was information in it which specifically related to the subject matter of Szpak's testimony.In addition to information about contacts with an informant, William C. Barker, Jr., which did not coincide with his testimony, the events of May 14th were reported substantially as told by Szpak on the witness stand and, as expected, in greater detail than in the letter.

The fact that Szpak's testimony was more revealing than the case report is not a valid reason for refusing to permit the defense to see it.This is not the test under the statute.The purpose of requiring the delivery to a defendant of a prior statement "which relates to the subject matter as to which a witness has testified" is not solely to provide him a means of obtaining information divulged by the witness's testimony, but to give him an opportunity to use it as he deems fit for trial purposes."Whether the statements may be useful for purposes of impeachment is a decision which rests, of course, with the defendant himself."Scales v. United States, 367 U.S. 203, 258, 81 S.Ct. 1469, 1501, 6 L.Ed.2d 782(1961).In Campbell v. United States, 373 U.S. 487, 497, footnote 13, 83 S.Ct. 1356, 10 L.Ed. 2d 501, the Supreme Court pointed out that under Jencks v. United States, 353 U.S. 657, 677-678, 77 S.Ct. 1007, 1501, 1 L.Ed.2d 1103, a showing of inconsistency as a prerequisite to the production of documents is unnecessary.See alsoLewis v. United States, 340 F.2d 678(C.A.8);United States v. Prince, 264 F.2d 850, 852(C.A.3).Nevertheless, as has been indicated earlier, it affirmatively appears that the report could have been advantageously used by the defense to impeach Szpak concerning his testimony of events about the informant, Barker, who accompanied Vecchione to the parking area of the Cork and Bottle Bar in Edison Township.The refusal of the trial judge to direct the prosecution to deliver the May 26, 1964, report, with such portions which did not relate to the subject matter of Szpak's testimony deleted, to the appellant for his use at the trial was not harmless error.SeeUnited States v. McCarthy, 301 F.2d 796(C.A.3, 1962).

The appellant complains about the trial judge's admonition in the midst of the trial regarding his attorney's use of the letter of September 11, 1946, in cross-examining Szpak.The trial judge told the jury that this letter, containing but six lines with reference to the happenings of May 14, 1964, did not, in any wise, propose to spell out the details of the event of that day.This was fair comment on the document shown to the jury, and was eminently proper.

Nor did the trial judge overstep the bounds of propriety in his questioning of Vecchione while he was on the witness stand.

There was no error in the trial court's refusal to permit appellant to introduce into evidence the official record pertaining to the indictment and arraignment of Barker who was present in court but not called as a witness by either side.It was appellant, not the prosecution, who brought to the attention of the jury Szpak's conversations with Barker on cross-examination, apparently to impeach his credibility, even though appellant objected to any such conversations on direct examination.

Appellant asserts that the actions of the prosecuting attorney, in three respects, were prejudicial.He complains of a statement made in opening to the jury, a statement made during summation, and questions asked of a witness for the prosecution.

In his opening statement, the attorney for the prosecution said: "And I am convinced, as I am sure you will be when you hear the evidence and see it presented before you, that there will be no question but that defendant, Meisch, is guilty of the crime charged."This could not be construed as a statement of personal knowledge deemed to be especially objectionable as in Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314(1935).Here, the statement of belief in the guilt of appellant was stated by the prosecuting attorney to be based upon the evidence to be presented.

The statement in his summation concerning why the arrest of appellant was made three months after the events charged in the indictment was as follows: "You remember the testimony why they waited for three months.They were checking him out.That makes sense, doesn't it?It does to me."This likewise was not a statement of personal knowledge.

As to the questions, appellant claims they were so framed as to insinuate that he was involved in prior dealings with counterfeit money or associated with known counterfeiters.These questions were asked by the prosecution in anticipation of a defense of entrapment.Nevertheless, the questions were stricken and the...