United States v. Thomas

• Decision Date: 06 December 1973
• Docket Number: No. 73-1148.,73-1148.
• Citation: 488 F.2d 334
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael THOMAS and Joseph Yoppolo, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

488 F.2d 334 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Michael THOMAS and Joseph Yoppolo, Defendants-Appellants.

No. 73-1148.

United States Court of Appeals, Sixth Circuit.

Argued October 2, 1973.

Decided December 6, 1973.

George E. Woods, Detroit, Mich., on brief, for defendant-appellant, Michael Thomas.

John M. Chase, Jr., Detroit, Mich., on brief, for defendant-appellant, Joseph Yoppolo.

Ralph B. Guy, Jr., U. S. Atty., Sidney M. Glazer, Kirby W. Patterson, Attys., Crim.Div., Dept. of Justice, Washington, D. C., Alfred G. Kaufman, Detroit, Mich., James E. Kelley, Jr., Sp. Attys., Washington, D. C., on brief, for plaintiff-appellee.

Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges.

PER CURIAM.

Appellants and two co-defendants were indicted on five counts of counterfeiting in violation of 18 U.S.C. §§ 472, 474, and 501, and on one count of conspiracy to counterfeit in violation of 18 U.S.C. § 371. In a previous action before this Court, in an unpublished opinion we reversed an order of the District Court which sustained the defendants' motion to suppress evidence obtained under a search warrant. United States v. Thomas, No. 71-1161 (6th Cir. May 25, 1972). Upon remand for trial, co-defendant Andrew Asaro received a directed judgment of acquittal at the conclusion of the Government's case and co-defendant Michael Lazarov testified for the Government.¹ Appellants were then convicted by a jury on the conspiracy count and four of the substantive counts and were sentenced to concurrent terms of five years imprisonment on each count.

It appears that Asaro was the first witness called to testify by the appellants. Counsel for the appellant Thomas advised the prospective witness that his testimony could lead to a prosecution for misprision of a felony and inquired if he wished to confer with his attorney. Asaro acknowledged the advice but declined the opportunity to seek counsel. Thereupon the Court made an additional explanation of the matter and upon further inquiry from Thomas' counsel, Asaro agreed to consult counsel. A short recess was called to allow Asaro to locate his counsel, who had left the courtroom when his motion for acquittal was granted.

During the recess Asaro was unable to locate his attorney but, as he later testified, during this time he was approached by a secret service agent involved in the case who told him that he would be prosecuted for misprision of a felony if he testified in the case. Asaro testified for the limited purpose of describing the conversation between the agent and himself and the agent was permitted to testify in rebuttal that he only advised the witness that he could be prosecuted if he took the stand. Appellant Thomas' lawyer was present for a portion of the exchange between Asaro and the agent and attempted to testify in corroboration of Asaro's testimony, but the Court refused to permit this. The Court reprimanded the secret service agent and the Assistant United States Attorney on whose behest the agent had approached the prospective witness. The Court also denied counsel's motions for a mistrial and to be relieved as counsel for Thomas. Following this, Asaro failed to testify. The Government advised the Court that Asaro would not be prosecuted if he testified although immunity was not provided. Asaro indicated that he would testify only under subpoena, which was not requested.

On appeal, the appellants contend that the prospective witness Asaro was prejudicially intimidated and threatened by the Government, in effect driven off the witness stand, thereby depriving appellants of due process of law in violation of the Fourteenth Amendment.

We first turn to the leading case of Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), which clearly established that a party's right to present his own witnesses in establishing a defense is a fundamental element of due process of law and is protected. The Government's position, however, is that the factors of what it describes as overwhelming evidence of guilt, the lack of a proffer of Asaro's testimony and the failure of defense counsel to recall Asaro as a witness substantiate the conclusion that there is...