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United States v. Lubertazzi

October 5, 1960


Author: Mclaughlin

Before GOODRICH, McLAUGHLIN and STALEY, Circuit Judges.

McLAUGHLIN, Circuit Judge.

Appellant's sole complaint before us arises out of the irresponsive comment of a witness while on the stand.

The indictment charged appellant with receiving and selling stolen motor vehicles, 18 U.S.C. § 2313, and with conspiracy to transport stolen motor vehicles in interstate commerce, 18 U.S.C. § 371. He was convicted of all three offenses and sentenced to three years imprisonment under the conspiracy count with similar concurrent sentences on the other counts.

Originally five defendants had been named in the indictments. Three of these pleaded guilty on May 22, 1959. The trial of the remaining two, appellant and his brother Anthony, started October 14, 1959. It consumed six trial days, concluding on October 22, 1959. There was a jury disagreement as to Anthony.

The episode upon which the alleged error is based occurred during the testimony of the Assistant Chief of the Certificate of Ownership Section, Department of Motor Vehicles of the State of New Jersey. The witness had been with the Department thirty-six years; with the Ownership Section, six years. His duty is to regulate and control records of all motor vehicles, transfers and documents existing between sales of motor vehicles. It was conceded that he was qualified to testify as to Department documents and automobile titles.

One of the automobiles involved in the government's proof was a Chevrolet 1958, 4 Dr, F58T179566 Bel Air. The witness was shown Government Exhibit No. 9 in evidence, on its face a Florida title to said car. He said, "Well, the paper itself, I would say is legitimate, but by comparison with other Florida titles I would say that the execution of it was fraudulent." A little further on he was shown Government Exhibit No. 6 in evidence. He stated it was a "perfectly good New Jersey certificate of ownership or title". He noted it identified the same automobile as the above mentioned Florida paper and that the person's name on the title was the one which the Florida title stated to be the purchaser of the motor vehicle. The witness was then handed Government Exhibits in evidence numbers 12, 17 and 21 and asked:

"* * * whether or not you are able to determine the authenticity or lack thereof of these three certificates?"

The witness replied:

"These are authentic New Jersey certificates of ownership. However they were stolen at gunpoint."

The defendant's attorney said, "If it please the Court - ". The trial judge asked him to "wait a minute" and addressing himself to the remark of the witness stated:

"That will be stricken. You just describe what happened, if you are asked the question, and leave off the literary descriptions. You were asked whether they are legitimate. Yes, you said." The witness answered "The documents themselves are perfectly - ". The court broke in "that was the only question". The witness concluding his answer said " - legitimate". Then the court, addressing the district attorney, said "Proceed Mr. Mangini". Thereafter, for over a page of the printed record, followed a series of routine identification questions and answers concerning the New Jersey certificates. This concluded, the court asked counsel for the defendants if he wished to make a motion. The attorney moved for a mistrial, urging that the observation of the witness, coupled with the fact that the three New Jersey certificates of sale to which he had referred were in evidence and would go with the jury, was highly prejudicial. The court who, from the record would seem to have so quietly managed the untoward incident as to have made it almost imperceptible, allowed both sides full argument. When that was concluded the court outlined the situation to the jury saying that:

"The witness had in his hands three New Jersey title certificates, or bills of sale, heretofore marked G-12, G-17 and G-21. A proper question was put to this witness and he made a responsive answer, whereupon, without any prodding by anyone, or suggestion by anyone, he volunteered the statement, which the defendants complain about, that they - 'they' referring to these three exhibits that I just mentioned - were taken at gunpoint. And it is for that remark that the defendants move for a mistrial. I will deny the motion. First of all, there is nothing in the indictment, or the charge, or any of the testimony heretofore given which stated directly, or from which a jury could reasonably infer that a gun had anything to do with this case, or that there was any holdup in the use of a gun in connection with this case, nor has there been any testimony, secondly, as I recall it - and, of course, the jury's recollection is going to govern - that either of these defendants stole these three exhibits, either at gunpoint or not at gunpoint, committed a theft of them; nor is the theft of these bills of sale involved as a charge against the defendants. Immediately upon the witness making that statement I spoke to the witness and reprimanded him for making it, all within the hearing of the jury, to refrain from making literary remarks." Continuing, he said:

"But as a matter of extra precaution I now tell the jury that any remark made by this witness regarding these three exhibits having been taken by gunpoint at the present posture of the case, anyway, unquestionably, has utterly nothing to do with the charge against these defendants in this case. You will disregard such a remark. It was not a relevant response or a proper response to any question that was put to this witness. Whether or not they were taken at gunpoint, or whether or not they just came down from ...

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