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United States v. Giuliano

decided: August 31, 1967.

UNITED STATES OF AMERICA, APPELLEE,
v.
JAMES MICHAEL GIULIANO, APPELLANT



McLaughlin, Kalodner and Freedman, Circuit Judges.

Author: Mclaughlin

Opinion OF THE COURT

GERALD McLAUGHLIN, Circuit Judge.

Appellant was convicted under 18 U.S.C. ยง 472 for the sale and possession of counterfeit United States Federal Reserve Notes on or about June 23, 1965 and for the possession of counterfeit United States Federal Reserve Notes on or about September 21, 1965.

The witnesses on behalf of the Government consisted of four Secret Service agents and Messrs. DeRose and Joya who are characterized as informers. There was no evidence offered on behalf of the defendant.

The first witness in the Government's case was DeRose. He testified that he sold counterfeit money in October 1964 for which offense he was arrested in December 1964. He said he was arrested again in February 1965 for selling counterfeit money in December 1964. He was asked:

"Q. And from whom did you purchase the money that you were arrested for selling?" He answered, "Giuliano".

He identified "Giuliano" in the courtroom as appellant.

DeRose stated that on the evening of June 23, 1965, with his partner Joya, he met Secret Service agents Szpak and Martin and "* * * I told them I had information you know, for some new counterfeit bills. * * * Well, we explained to them that we could get some new ten dollar bills. Q. From whom? A. Giuliano. Q. Who is Giuliano? A. The defendant over there (indicating). Q. The defendant over here (indicating)? A. Yes. The Court: Indicating the defendant." Joya was given $120 by the agents with which to purchase $1,000 of "Bogus tens". DeRose and Joya met Giuliano that same evening and the three arranged that Giuliano "* * bring down $1,000 of tens." A little later, according to DeRose, he and Joya met Giuliano. The latter agreed to give DeRose, the $1,000 of counterfeit ten dollar bills for $110. DeRose took $110 from Joya, gave it to Giuliano who in turn gave DeRose the $1,000 of counterfeits which DeRose turned over to Joya. After that at DeRose's house DeRose gave the counterfeit money to the agents. Sometime in the following July, as DeRose testified, he and Giuliano had an arrangement to meet for the purpose of DeRose buying more counterfeits from Giuliano. The latter appeared at the meeting place in his automobile but said DeRose in answer to the question, "And did you meet with him?" "No, he seen the two agents and he kept going." DeRose met Giuliano next on September 21, 1965 and "Well, made arrangements to purchase some more money." Giuliano came to DeRose's house later that night. DeRose asked him "Do you have the money?" He said, "'Yes' and he made a motion to give it to me." I said "Wait a minute. The law is here, get out of here. So he took off, and I turned around and went right to the house, me and Joya."

Tristan Joya corroborated DeRose respecting the transaction with Giuliano on June 23, 1965 and the meeting with Giuliano on September 21, 1965. He testified that Giuliano had counterfeits on him on September 21, 1965. Asked how he knew that he said "He told us that he had it and he -- he pointed to them in his pocket."

Agent Szpak, as a witness, said he saw and heard the June 23, 1965 incident and substantiated the accounts of DeRose and Joya concerning it. With respect to September 21, 1965 he stated that DeRose advised him on that day that Giuliano had counterfeit money to sell. Szpak told the Assistant District Attorney in charge of the matter about this and was authorized by him to prosecute Giuliano. In accord with that he signed a complaint and obtained an arrest warrant. That night when Giuliano came out of DeRose's house and entered his automobile, agent Szpak arrested him. As he did, Giuliano threw a bundle out of side window of his car. Agent Rush retrieved that and turned it over to Szpak. The bundle was identified by the witness and contained approximately $2,000 of counterfeit ten dollar bills which were marked in evidence. Agent Rush who was present in the area of the DeRose house on the night of September 21st saw Giuliano throw the package out of his car, picked it up and gave it to Szpak. He identified the package in court. Agent Bechtle saw a meeting between Giuliano, DeRose and Joya earlier on the evening of September 21st. Agent Martin who was in charge of the detail was with agent Szpak on the night of June 23rd and largely corroborated the Government witnesses as to the meeting of DeRose and Joya with Giuliano, etc. He said that Giuliano was not arrested at the same time as the above stated arrests of DeRose and Joya because "We had a continuing investigation regarding Mr. Giuliano, we had other avenues of investigation regarding Mr. Giuliano and were seeking to get further corroboration of his guilt other than just the word of two defendants."

Following the defense trial pattern, there was no attempt in the summation for the defendant to dispute the facts as such which were testified to in the Government proofs. As to the latter the defendant's attorney merely attempted to attack the credibility of the Government witnesses. In summation he specifically told the jury that the defendant had not testified; he advised the jury that the defendant had the right to take that position and that the Court would so instruct the jury. The attorney said:

"I want to at this time make note of the fact, and I know you are possibly concerned with the fact that the defendant did not take the stand. This honorable Court will tell you in so many words that the law does not compel a defendant in a criminal case to take the witness stand and testify. And no presumption of guilt may be raised and no inference of any kind may be drawn from the failure of a defendant to testify. I wanted to satisfy your minds on that point because it possibly was bothering you." (Emphasis supplied.)

The trial judge did later explicitly so charge the jury saying:

"Now, in this particular case the defendant did not take the stand. I charge you that that is his right; it is not a privilege, it is a right, a right that's guaranteed to him by our system of jurisprudence. The fact that he did not take the stand may not be used by you in any respect or to any degree in drawing any inference unfavorable to him. He stands here accused of certain offenses to which he has pleaded not guilty, and there is no obligation for him to take the ...


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