United States v. Panetta

• Citation: 436 F. Supp. 114
• Decision Date: 24 June 1977
• Docket Number: Crim. No. 76-341.
• Parties: UNITED STATES of America v. Vincent PANETTA, aka Tippy Panetta, Charles Diana.
• Court: U.S. District Court — Eastern District of Pennsylvania

436 F. Supp. 114

UNITED STATES of America v. Vincent PANETTA, aka Tippy Panetta, Charles Diana.

Crim. No. 76-341.

United States District Court, E. D. Pennsylvania.

June 24, 1977.

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Robert Madden, Philadelphia Strike Force, Philadelphia, Pa., for plaintiff.

Robert F. Simone, Philadelphia, Pa., for Panetta.

Nicholas A. Clemente, Philadelphia, Pa., for Diana.

OPINION

DITTER, District Judge.

This case comes before the court on post trial motions by defendants who were convicted by a jury of offenses arising out of a felon's purchase of two handguns. Vincent "Tippy" Panetta¹ was found guilty of the unlawful receipt of firearms,² the making of false statements,³ and conspiracy,⁴ while Charles Diana was found guilty of conspiracy. Panetta contends his motion for severance should have been granted and evidence of another crime was improperly received. Diana asserts his double jeopardy rights were prejudiced, and both Panetta and Diana contend there was undue pre-trial delay. I find their arguments to be unavailing and therefore their motions must be denied.

Viewed in the light most favorable to the government,⁵ the evidence adduced at trial established that on two occasions in August, 1974, Panetta, a felon, purchased a handgun from Diana, a federally licensed gun dealer, and that on each occasion false information was listed in the federal forms required to be completed incident to the sale. At the outset of trial the jury was read stipulations which eliminated the need for the government to offer proof on certain elements of the crimes charged. First, it was agreed that prior to the dates of the alleged transactions the two handguns in question had been shipped to Pennsylvania in interstate commerce. See Barrett v. United States, 423 U.S. 212, 96 S.Ct. 498, 46 L.Ed.2d 450 (1976); Cf. Scarborough v. United States, ___ U.S. ___, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977). Secondly, it was stipulated that on March 2, 1960, Panetta had been convicted in Pennsylvania of burglary, a crime punishable by imprisonment for a term exceeding one year, and that at all times between August 13 and 27, 1974, Panetta was consciously aware of his prior conviction.

The government's chief witness was Kathleen Colligon, who had been Panetta's girlfriend at the times in question. Colligon testified that sometime in August, 1974, Tippy Panetta, the defendant, requested that she lend him her driver's license for use as identification in buying a gun from Diana, who owned a gun shop located in the basement of his home in Abington, Pennsylvania. Although she had reservations about doing so, Colligon allowed Panetta to take her license. When Panetta returned from the gun shop, Colligon observed that he had a handgun with him. Panetta told Colligon that he had not used her driver's license to buy the gun, but she later saw a bag from Diana's shop in Panetta's car. Attached to the bag was a receipt made out in Colligon's name. Panetta explained this by saying Colligon's name was on the receipt only, and that she had nothing to worry about.

Sometime later that month, August, 1974, Colligon accompanied Panetta to Diana's shop where Panetta exchanged the gun he had purchased for a different model. While at the store Colligon observed an index card record of the original purchase and noted that it listed her name and an address at which she had formerly resided. When questioned, Panetta told her that that card had never been sent (to the appropriate authorities) and that the gun was not registered in her name. Diana, who was present, did not disagree with this explanation. Colligon watched Panetta fill out the application for the second gun using the name and address of his cousin, Vincent J. Panetta, Roslyn, Pennsylvania, who was not then present in the shop. Colligon stated that in August, 1974, she and Tippy Panetta resided at the Woodbridge Mews Apartments in Northeast Philadelphia, and that his driver's license contained the address of his sister, 112 Hermit Street, Philadelphia.

The various state and federal forms required to be completed in connection with the transfer of the firearms in question were introduced in evidence. Federal Form 4473 (Exhibit G-1) and the state "Record of Sale of Firearms" (G-3) for the first gun, a Charter Arms .38 special calibre revolver, serial 149842, were dated August 14, 1974, and August 19, 1974, respectively, and were made out to show that the buyer was Colligon. The 4473 also certified that the buyer had never been convicted of a crime punishable by imprisonment for a term exceeding one year. Colligon testified that she had never purchased a gun from Diana, that she never asked Panetta to purchase a gun for her, and that Panetta never told her he had purchased a gun for her. She examined the signatures of the purported buyer on G-1 and G-3 and stated they were not hers.⁶ She also noted that her last name in these signatures had incorrectly been spelled "COLLGAN" and that the state form (G-3) listed her eye color as blue when in fact her eyes are brown.⁷

The defendant's cousin, Vincent J. Panetta, testified that he had never purchased a gun from Diana and in fact had never even met Diana prior to December, 1975. Federal Form 4473 (G-2) and the state "Record of Sale of Firearm" form (G-5) for the second gun, a Smith and Wesson Model 49 revolver calibre .38 special, serial J206823, were dated August 26 and August 30, 1974, respectively.⁸ The 4473 listed the buyer as "Vincent Panetta, 1364 Beachwood St., Roslyn, Pa., height: 5'9½", weight: 180, date of birth: 7-20-30, driver's license number: 04986329," and certified that the buyer had never been convicted of a crime punishable by imprisonment for a term exceeding one year. Vincent J. Panetta examined these documents and testified that he had not signed them; that his address is 1364 Birchwood (not Beachwood); his date of birth is January 23, 1922 (not July 20, 1930); his height is 5'6" (not 5'9"); his weight is 155 pounds (not 180); and his driver's license number is 04402789 (not 04986329).⁹

Special Agent Christopher Mazzella of the FBI testified that during an interview Diana stated he had sold the first gun to Colligon on August 14, 1974, and had personally witnessed her sign form 4473 (G-1). He submitted the form to the authorities, got no response, and several days later Colligon came back and picked up the gun. Sometime around August 26, 1974, Colligon returned this gun to Diana. He refunded her money and a few days thereafter sold it to someone else. With respect to the second gun, Diana stated that he had sold it to Vincent J. Panetta on August 26, 1974, and had witnessed him sign the 4473 (G-2). Special Agent Clifford Cormany testified to hearing Diana state that he had taken the descriptive information used in G-2 from the driver's license of Vincent J. Panetta.¹⁰ At the agent's request, Diana turned over to Mazzella the 4473's for both guns (G-1 and G-2); he did not give Mazzella his copies of the state forms,¹¹ although he told Mazzella that he had provided the agent with all his records on the guns in question.

Handwriting exemplars taken from Panetta (G-9 (1-46) and G-12) and Diana (G-11 and G-11A) were introduced in evidence. Special Agent Philip E. Dennis, Jr., of the FBI, who took the exemplars from Panetta, testified that when the defendant was asked to write "Kathy Colligon" he spelled the last name "COLLGAN," the spelling found in the buyer's signature on G-1 and G-3. On the basis of a comparison with the known handwriting of Panetta and Diana, FBI Special Agent Luther Senter, a handwriting expert, testified that the signature of the seller on G-1 and G-5 was the genuine signature of Diana¹² and that the writer of the purchaser's signature on G-2, 3, 4, and 5 was the defendant, Tippy Panetta. With respect to the Kathy "COLLGAN" signature on the Form 4473 for the first gun (G-1), Senter stated that he did not find enough identifying characteristics to reach a definite conclusion that it had been written by Panetta. However, while Senter could not be "100% positive" of the writer of the Collgan signature on G-1 (as he had been about the writer of the questioned purchasers' signatures in G-2 through G-5) and therefore would not given an opinion, he did state that there were a number of similarities between it and the known handwriting of Panetta and a number of dissimilarities between it and the known handwriting of Colligon.

Testimony offered by the defendants hardly aided their cause. First they called to the stand Special Agent Keith Rossman of the Bureau of Alcohol, Tobacco and Firearms, who testified that Diana's firearms acquisition-disposition book contained two sets of interrogatories for the second gun. In addition to the one showing the gun's being received from a wholesaler on April 12, 1974, and sold to Vincent J. Panetta on August 26, 1974, there was a later entry showing this same gun being received from Vincent J. Panetta on March 17, 1974, and sold to one Joseph Allen on May 10, 1975. Rossman also stated that the government made no effort to contact Allen about this transaction. Whatever benefit might have inured to the defendants from this testimony was quickly dissipated when Rossman explained on cross examination that the acquisition-disposition book was kept in chronological order as firearms were received by Diana and that the entry showing receipt of the second gun on March 17, 1974, was grossly out of order, thus giving rise to the possible inference that this entry had been deliberately falsified to cover up the defendants' unlawful activities.¹³

The only other defense witness was Carl Bear, a friend of Diana's who is a gun dealer and is also in the roofing and siding business. Bear testified that during late August, 1974, he was putting aluminum siding on Diana's house when he was introduced to Panetta and Colligon and accompanied them and Diana...