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United States v. Chicarelli

decided: July 1, 1971.

UNITED STATES OF AMERICA
v.
PERRY IMPERATORE CHICARELLI ET K AL; APPEAL OF EUGENE NAPOLITANO, IN NO. 19,190. APPEAL OF EUGENE NAPOLITANO, IN NO. 19,190. APPEAL OF JAMES THOMAS GREENHALGH, IN NO. 71-1195. APPEAL OF LAWRENCE ROBERT GREENHALGH, IN NO. 71-1196



Ganey, Van Dusen and Gibbons, Circuit Judges.

Author: Van Dusen

Opinion OF THE COURT

VAN DUSEN, Circuit Judge.

This is an appeal from July 2, 1970, judgments and commitments of appellants in the United States District Court for the District of New Jersey following the entry of June 1970 orders of that court denying post-trial motions for judgments of acquittal or, in the alternative, a new trial.

Eugene Napolitano, Lawrence R. Greenhalgh, James T. Greenhalgh, James F. Wood and Perry I. Chicarelli were prosecuted under a two-count indictment charging them with conspiracy to possess goods stolen from interstate shipment, knowing the said goods to have been stolen, and the possession of said goods, knowing them to have been stolen, in violation of 18 U.S.C. ยงยง 371 and 659, respectively. Perry I. Chicarelli subsequently pleaded guilty to Count I of the indictment and Count II was dismissed against him. He was severed from the case prior to trial and appeared as a witness for the Government at the trial of appellants. The other four defendants were tried before a jury, which returned a verdict of not guilty as to James Wood on both counts and not guilty on Count I and guilty on Count II as to the other three defendants.

The appeals of Eugene Napolitano, Lawrence R. Greenhalgh and James T. Greenhalgh have been consolidated. These defendants raised a number of contentions allegedly requiring the grant of a new trial.*fn1

After consideration of all these contentions in light of the record as a whole, we have concluded that no reversible error was committed and that the appellants had a fair trial. See United States v. Laurelli, 293 F.2d 830 (3rd Cir. 1961); United States v. Hohensee, 243 F.2d 367 (3rd Cir. 1957). As reaffirmed by the Supreme Court of the United States in Bruton v. United States, 391 U.S. 123, 135, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), quoting from Lutwak v. United States, 344 U.S. 604 at 619, 73 S. Ct. 481, at 490, 97 L. Ed. 593, "'A defendant is entitled to a fair trial but not a perfect one.'"

The following two contentions of appellants require discussion:

I. Objection to witness for the Government acting as a bailiff for the jury on certain occasions.

Appellants claim that a mistrial should have been granted because a deputy United States Marshal, William C. Ramoth, acted as bailiff on several occasions even though he was a witness for the Government. We disagree and do not think that the situation presented by this record is controlled by Turner v. Louisiana, 379 U.S. 466, 85 S. Ct. 546, 13 L. Ed. 2d 424 (1965), which is relied on by appellants. In Turner, the Supreme Court reversed a conviction because the jury was placed under the care of two deputy sheriffs who were the key witnesses for the prosecution. The Court stated that the credibility of these witnesses "must inevitably have determined whether [the defendant] was to be sent to his death" and noted that they were in "continuous and intimate association throughout a three-day trial -- an association which gave these witnesses an opportunity * * * to renew old friendships and make new acquaintances among the members of the jury." 379 U.S. at 473, 85 S. Ct. at 550.

Recognizing the factual limitations in Turner, several Circuit Courts of Appeals, most notably the Fifth Circuit Court of Appeals, have refused to reverse convictions where witnesses acted as bailiffs unless the witnesses' testimony was central to the development of the Government's case and their contact with the jury was continual and intimate. See e. g., Jackson v. Beto, 388 F.2d 409 (5th Cir. 1968); Crawford v. Beto, 385 F.2d 156 (5th Cir. 1967); Shepherd v. Wingo, 414 F.2d 274 (6th Cir. 1969).

In the present case, Ramoth fingerprinted each of the defendants at the time of their appearance before the United States Commissioner on March 17, 1969. He sent their respective fingerprint cards to the FBI Laboratory in Washington, D.C., for comparison purposes. He was called as a Government witness only for the formal, perfunctory purpose of identifying these cards. His testimony was not central to the Government's case and was not controverted by defendants. Unlike the situation in Turner, defendants' fate was not dependent on the witness' credibility. In addition, his two encounters with the jury did not amount to "continuous and intimate association." He testified in the presence of defendants' counsel at the hearing held by the court on defendants' motion to declare a mistrial that he had led the jury into the courtroom on two occasions, stayed with them for a total of several hours in the courtroom, and on one of the two occasions had also led the jury out of the courtroom. He testified that he neither had any conversations with the jurors nor heard any of their discussions.

Under these circumstances, we find that this contention must be rejected as there was no prejudice to defendants requiring a new trial.

II. Objections to procedure and statements of trial judge at the time jury requested certain ...


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