United States v. Miceli, 71-1080.

• Decision Date: 14 July 1971
• Docket Number: No. 71-1080.,71-1080.
• Citation: 446 F.2d 256
• Parties: UNITED STATES of America, Appellee, v. Frank J. MICELI, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

446 F.2d 256 (1971)

UNITED STATES of America, Appellee, v. Frank J. MICELI, Defendant, Appellant.

No. 71-1080.

United States Court of Appeals, First Circuit.

July 14, 1971.

Francis J. DiMento, Boston, Mass., orally, David Berman, John F. Zamparelli, Victor J. Garo and Zamparelli & White, Medford, Mass., on brief, for appellant.

Craig M. Bradley, Atty., Dept. of Justice, with whom Herbert F. Travers, U. S. Atty., was on brief, for appellee.

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

McENTEE, Circuit Judge.

The defendant was charged in Count II of a three count indictment with violations of 18 U.S.C. § 2314.¹ Other defendants were charged in Counts I and III but this defendant was the only one charged in Count II.² This count alleged that on or about October 8, 1967, the defendant with fraudulent intent transported ten counterfeit International Telephone and Telegraph bonds with a face falue of $1,000 each, from Newark, New Jersey to Boston, Massachusetts, knowing the said securities to have been counterfeited. The defendant's case was severed from those of the other defendants and, after a trial by jury, he was found guilty as charged.

The principal witness against this defendant as well as against the defendants in the Count I trial was an alleged accomplice named Vincent Teresa.³ He testified that in early October 1967 he placed a telephone call in Boston to the defendant in New Jersey and asked him if he could obtain some counterfeit bonds. The defendant suggested that Teresa call him back later that day. Upon doing so, defendant told him that he had obtained some bonds and would fly them to Boston the next morning, which he did. Teresa and Mondovano⁴ picked up the defendant at Logan Airport in Boston the next morning. The trio went to a restaurant where the defendant gave the other two, fifty counterfeit IT&T bonds with a face value of $1,000 each. It was agreed that the defendant would receive 20% of the proceeds of the sale of these bonds, which percentage Teresa agreed he would deliver to the defendant in New Jersey. After driving the defendant back to Logan Airport on the same day, Teresa and Mondovano went to Lynn, Massachusetts, and delivered the counterfeit bonds to one Al Grillo, who ran a Ford agency there. The evidence further shows that within the next few days Grillo took ten of these bonds, along with certain other bonds,⁵ to a Boston attorney named Sriberg, who on October 9 pledged them to the New England Merchants National Bank as security for a $19,500 loan. Sriberg endorsed the bank's check for $19,500 and gave it to Grillo the same day. Grillo later showed this check to Teresa and upon cashing it gave him $19,000. As agreed, Teresa took $9,000 to New Jersey and gave it to the defendant.

There was further testimony that on October 23, 1967, Sriberg got an additional loan of $6,500 from the bank on the same collateral, gave the bank his personal check for $4,000 and obtained a cashier's check for $10,500. That day, he endorsed this check to Grillo who, some time later, gave Teresa an additional $7,000 or $8,000.

Defendant argues that he should have had a directed verdict of acquittal because the government's case was based on the uncorroborated testimony of Teresa, an admitted accomplice. It is well settled in this circuit that such testimony is sufficient for conviction. United States v. Strauss, 443 F.2d 986 (1st Cir., 1971); Benedicto-Lebrón v. United States, 241 F.2d 885, 887 (1st Cir.), cert. denied, 354 U.S. 911, 77 S.Ct. 1298, 1 L. Ed.2d 1429 (1957). Next, defendant strongly contends that, even if we do not accept his first contention, "there comes a point when the witness' qualifications are so shoddy that a verdict of acquittal should be directed." Lyda v. United States, 321 F.2d 788, 795 (9th Cir. 1963), and that this is such a case. In this connection he points to the fact that Teresa testified that he was a thief by occupation, that he admittedly perjured himself in at least one other case, that he made an advantageous arrangement with the government for himself and his family in return for his testimony, and that the record shows he had a long history of criminal convictions. But as we stated in Strauss, supra, "* * * it is well established that acquittal must be directed in this type of case only if the accomplice's testimony is `incredible or unsubstantial on its face.'" Although Teresa's character and reputation appear to be more blemished than that of the accomplice in Strauss, his testimony in this case was more consistent. Teresa's credibility was a matter for the jury, and we note that on at least three occasions the trial judge instructed the jury that, because Teresa was an admitted accomplice, his testimony must be scrutinized carefully. If, despite his character and reputation, the jury believed Teresa's testimony, as quite obviously it did, there was ample evidence to support a verdict of guilty, and the defendant was not entitled to a directed verdict of acquittal.

Following his conviction, the defendant moved for a new trial on the ground that there was an inconsistency between Teresa's testimony in the instant case and his testimony in the earlier Count I trial in which he was also a witness for the government. It should be noted that, even though defendant's attorney was in the courtroom during the Count I trial and had the transcript of that trial before him during the instant case, he did not raise this point during trial. From our examination of the record we fail to see the inconsistency complained of, and we think the trial court properly denied the motion.

Defendant also contends that the indictment is defective because, although it charges that the defendant transported counterfeit securities across state lines, the government admitted that it did not know whether there were genuine bonds in existence bearing the same numbers. From this, he argues that the securities were forged rather than counterfeited.⁶ Here the bonds were clearly counterfeit. They were imitations of genuine IT&T bonds. The record shows that they were compared with a genuine IT&T bond which was introduced in evidence. Also, a representative of the bank note company that printed the bonds for IT&T produced a specimen bond and testified that the IT&T bonds in question in this case were counterfeit. The answer to defendant's contention is simply that a counterfeit bond refers to a copy of a type of bond, not a particular bond, with a particular serial number. Otherwise the government would be required to call in all genuine currency in order to prove counterfeiting of any given ten dollar bill.

Next, the defendant complains about the following instruction which the trial court gave to the jury:

"In a criminal case, as in every case, the judge gives the jury instructions of law and if he makes a mistake an appeal lies to a higher court, but you are required to follow the judge\'s instructions of law."

Although he did not object to this instruction at the time he now claims that it was plain error, relying upon United States v. Fiorito, 300 F.2d 424, 427 (7th Cir. 1962). That case is clearly distinguishable. The Fiorito instruction implied that the jury's factual determination would be reviewed on appeal and prejudicially diluted the jury's responsibility for the facts. Such is not the situation here. We find nothing wrong with this instruction which is often given by federal trial courts. It merely indicated to the jury that it had no responsibility as to questions of law.

Defendant's remaining objections stem from remarks made by the prosecutor during his summation to the jury.

After the government's closing argument the defendant objected as follows:

"* * * The government referred to hostility between Teresa and Miceli. There is no evidence of hostility. I refer to the fact that there is no burden on the defendant to show hostility or any other factor, that he can rely on his innocence throughout the trial and leave the burden of proof to the Government. * * *"

The government had stated that there was "no testimony concerning any hostility between Mr. Miceli and Mr. Teresa, no testimony regarding any motive" as to why Teresa should lie about Miceli. It also pointed out that the defendant had not cross-examined Teresa with regard to any hostility. Both of these statements are true. Defendant concedes that he could have cross-examined Teresa to show that the latter had a hostile motive for implicating him. Defendant's counsel did not do so, however, for fear that Teresa's denial of hostility would stand unless defendant testified, and defendant's trial strategy was not to testify. Of course, his failure to take the stand may not be commented upon by the government, for that would "cut down on the fifth...