United States v. Palumbo, No. 518

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: WATERMAN and FEINBERG, Circuit , and ZAMPANO
• Citation: 401 F.2d 270
• Parties: UNITED STATES of America, Appellee, v. Anthony PALUMBO, Appellant.
• Docket Number: No. 518,Docket 32217.
• Decision Date: 25 September 1968

401 F.2d 270 (1968)

UNITED STATES of America, Appellee,
v.
Anthony PALUMBO, Appellant.

No. 518, Docket 32217.

United States Court of Appeals Second Circuit.

Argued June 5, 1968.

Decided September 25, 1968.

401 F.2d 271

Edward M. Shaw, New York City, for appellant.

William J. Gilbreth, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, Roger J. Hawke, Pierre N. Leval, Asst. U. S. Attys., on the brief), for appellee.

Before WATERMAN and FEINBERG, Circuit Judges, and ZAMPANO, District Judge.^*

FEINBERG, Circuit Judge:

Anthony Palumbo appeals from a judgment of conviction on three counts of a five-count indictment for selling and possessing on August 30, 1967, and conspiring to sell and possess counterfeit currency, 18 U.S.C. §§ 472, 473, 371, entered in the United States District Court for the Southern District of New York after trial before Irving Ben Cooper, J., and a jury. Palumbo received sentences of eight years on two of the three counts and five years on the other, all to run concurrently. For the reasons given below, we affirm.

The central government witness was James D'Amelio, a Secret Service undercover agent. D'Amelio testified that at 4:30 P.M. on August 29, 1967, he was introduced (apparently by a government informant) to Harry Rose, appellant's alleged co-conspirator,¹ at the Port Authority Terminal in Manhattan. Rose sold fifty counterfeit $20 bills to D'Amelio. Rose also told D'Amelio that he had a partner with him who would be disappointed at the fact that he had come all the way into New York City to sell such a small amount.

The next day, D'Amelio telephoned Rose and arranged to buy a larger quantity of counterfeit currency at the Terminal that day. D'Amelio testified that at about 2 P.M. he saw Rose outside the Terminal walking with appellant. Rose called to D'Amelio; they met and appellant

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walked on. D'Amelio objected that the price was too high; Rose said that "his partner, who had just left, was angry because the price was too low." Inside the Terminal, Rose removed a brown paper bag containing 438 counterfeit $20 bills from a locker and gave it to D'Amelio. Rose was thereafter arrested; appellant, sitting in the Terminal waiting room, was also arrested

Other government agents testified that on August 29, they saw appellant at the Terminal, that on August 30, at 1:40 P.M., they saw appellant hand Rose a brown paper bag which Rose put in a Terminal locker, and that no one other than Rose opened the locker thereafter.

Appellant offered the testimony of three alibi witnesses and Rose. The testimony of the former placed Palumbo at his Newark residence on August 29 during the hours that Rose and D'Amelio allegedly met at the Terminal. Rose testified that he received the bag of counterfeit money on August 29 from a "colored fellow," that on August 30 he met Palumbo outside the Terminal by chance, and that he had placed the paper bag with the counterfeit bills in the locker himself. He denied that Palumbo had any connection with the scheme. The jury resolved these conflicting versions of the events, and found appellant not guilty on two counts relating to August 29, but guilty on the two counts relating to August 30, as well as on the conspiracy count.

Appellant raises several issues on appeal, only one of which requires extended discussion. Prior to opening Palumbo's case, his counsel advised the court that Palumbo had been convicted of armed robbery in 1929, breaking and entering in 1937, receiving stolen property in 1945, breaking and entering in 1946, and armed robbery in 1956. Arguing that these convictions were unrelated to defendant's credibility, remote in time and bound to influence the passions of the jury, counsel asked the court to rule in advance that the Government could not use the convictions to impeach Palumbo's credibility should he be called in his own defense. The judge ruled that the convictions would be admissible; Palumbo declined to testify. As his main point on appeal, Palumbo contends that the trial court should have held that the convictions could not be used for impeachment purposes. Appellant asserts that the trial court must exercise its discretion in determining whether to allow use of prior convictions to impeach a defendant, that Judge Cooper did not do so here, and that, in any event, the ruling was "outside the scope of the court's discretion."

Whether the court had discretion to exercise is an interesting question. The District of Columbia Circuit, in interpreting the D.C.Code, has unequivocally held that the trial judge has such discretion to exclude evidence of prior convictions offered to impeach a defendant's credibility. See, e. g., Brown v. United States, 125 U.S.App.D.C. 220, 370 F.2d 242 (1966); Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965). Some have suggested a rule that goes even further, i. e., that use of prior convictions of an accused to impeach his credibility shall not be allowed at all, unless "he has first introduced evidence admissible solely for the purpose of supporting his credibility." See Uniform Rules of Evidence, Rule 21; Model Code of Evidence rule 106 (1942); McCormick, Evidence § 43 (1954). This proposal raises problems of its own, e. g., what is "evidence admissible solely for the purpose of supporting * * * credibility," which opens the door to impeaching convictions? Nevertheless, there is much to support an exclusionary rule; it diminishes in most cases the danger that a jury will convict only because it regards the defendant as a "bad man," the sort who commits crimes, including the one at issue.² Moreover, it encourages a usually knowledgeable witness,

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the defendant, to take the stand.³ On the other hand, most people in making a private decision on a person's credibility would want to know that he had been convicted of perjury or theft. A rule of complete, or almost complete, exclusion may allow an accused to appear as one entitled to full belief when that is not the fact. It is probably for this reason that, so far as we know, such a rule has not been adopted by any circuit, including the jurisdiction whose cases appellant cites as most helpful to him. Indeed, appellant himself does not press for it. See Michelson v. United States, 335 U.S. 469, 487, 69 S.Ct. 213, 224, 93 L.Ed. 168 (1948) (Frankfurter, J., concurring) ("I believe it to be unprofitable, on balance, for appellate courts to formulate rigid rules for the exclusion of evidence in courts of law that outside them would...