United States v. Nasta
| Decision Date | 17 July 1968 |
| Docket Number | No. 523,Docket 32277.,523 |
| Citation | 398 F.2d 283 |
| Parties | UNITED STATES of America, Appellee, v. Albert NASTA, Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Elkan Abramowitz, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, New York City, and Pierre N. Leval, Asst. U. S. Atty. New York City, on the brief), for appellee.
Before MOORE and HAYS, Circuit Judges, and TIMBERS, District Judge.*
Albert Nasta appeals from a judgment of conviction entered March 15, 1968 upon verdicts of guilty on three counts of a three count indictment after a two day trial in the Southern District of New York before Charles H. Tenney, District Judge, and a jury. Count One charged Nasta and two others, Joseph Abbate and Michael Ricciardi, with selling approximately $5,000 in counterfeit $10 bills on May 20, 1964 in violation of 18 U.S.C. §§ 473 and 2. Count Two charged Nasta and Ricciardi with similar violations for selling approximately $15,000 in counterfeit $10 bills two days later. Count Three charged Nasta, Abbate and Ricciardi with conspiracy to sell counterfeit money in violation of 18 U.S.C. § 371. Nasta was tried separately from the other two defendants and received a two year sentence.
Appellant contends that the government's summation to the jury constituted improper comments on his failure to testify. Appellant also asks us to review the trial court's refusal to order the government to disclose portions of documents pursuant to the Jencks Act, 18 U.S.C. § 3500. We find no error and affirm the judgment of conviction.
The evidence adduced at the short trial is straightforward and may be briefly summarized. Secret Service Agent James D'Amelio testified that he was first introduced to Nasta on May 11, 1964 at a meeting attended by Abbate, a person named Lenny Kaufman, and an informer named Richard Bilello. Nasta indicated that he would supply the agent with counterfeit bills. Another undercover agent, Leonard Vecchione, testified that he, along with Bilello, met Nasta on May 18. Nasta introduced the agent to a man named "Frankie" and then continued to discuss the arrangement for the sale of counterfeit bills with Vecchione. The two agreed to meet the next evening. They did, and further arrangements were made. On the following day Nasta gave the agent 508 $10 counterfeit bills in return for $600 in real currency from the agent. The agent next met with Nasta on May 22 when the agent paid him an additional $400. Later that day Nasta turned over another 1,480 counterfeit $10 bills to the agent with the expectation of payment. Nasta was then arrested. Surveilling Secret Service agents corroborated the testimony of the two agents as to Nasta's physical movements on the days in question.
Nasta relied completely on the defense of entrapment. The only witness he called was his brother, and he simply as a character witness.
The remarks to which appellant objects were made after defense counsel in his summation had strenuously argued that Nasta had been entrapped. Defense counsel in particular asked the jury to conclude that because the government apparently had no knowledge that Nasta had been dealing in counterfeit money prior to the meeting with Agent D'Amelio, Nasta must not have been predisposed to commit the crimes. In response, the government made the now challenged statements to the effect that there was no evidence from the witness chair that Nasta had not previously dealt in counterfeit money; that there was no testimony or evidence to contradict the government's witnesses; that counsel's remarks could not contradict evidence; and that there was no testimony or evidence that the government persuaded, or in any way...
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