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United States v. Rickey

decided: March 29, 1972.


Van Dusen and James Rosen, Circuit Judges and Becker, District Judge.

Author: Rosen


JAMES ROSEN, Circuit Judge.

Appellant, Anthony Ciotti, and defendants John Fasenmyer, Karen Jean Rickey, Nick Filia, and Joanne McGraw were jointly indicted on November 7, 1969 for aiding and abetting in the interstate transportation of forged travellers checks, in violation of 18 U.S.C. § 2314 and 18 U.S.C. § 2. Ciotti, Fasenmyer and Rickey were charged under the first fifteen counts of the indictment; Filia and McGraw were charged under a sixteenth count.*fn1

Rickey and McGraw entered pleas of guilty and then testified as government witnesses at the trial of Ciotti, Fasenmyer, and Filia. As a result of that trial, Filia was acquitted and Ciotti and Fasenmyer were convicted on fourteen counts.*fn2 The convicted defendants made motions for acquittals, new trials, and arrests of judgment. The applications were denied and both defendants were sentenced to three years imprisonment.*fn3 Only Ciotti takes this appeal.

Five grounds for reversal are now advanced. Ciotti contends that the judge erred in (1) permitting joinder of Filia under F.R.Crim.P. 8(b), (2) not severing Fasenmyer's trial from Ciotti's, (3) denying a mistrial motion, (4) charging the jury and making trial rulings regarding two government witnesses, and (5) in denying his motion for a new trial.


The appellant initially urges us to overturn his conviction because of an alleged misjoinder with co-defendant Filia, in violation of F.R.Crim.P., Rule 8(b).*fn4 We reject this argument because the joinder was proper.

Rule 8(b) permits an indictment to join defendants who "are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." Since Ciotti and Filia were not jointly indicted on any count, they were not alleged to have participated in the "same act or transaction." However, as the district court correctly determined, they both allegedly participated in the "same series of acts or transactions." All of the forged travellers checks covered by the joint indictment had been stolen during the weekend of July 12, 1968 from the Montgomery Ward store in Mansfield, Ohio. The alleged individual acts of Ciotti and Filia in forging and cashing the checks constituted one "series of acts or transactions."


Ciotti next claims that the trial judge's denial of his severance motion was so prejudicial that it requires reversal. We disagree. Ciotti's pretrial application for a severance from Filia and Fasenmyer alleged that a joint trial might be prejudicial. He now claims that the prejudice actually materialized at trial through (1) the testimony of co-defendant McGraw and (2) that of F.B.I. Agent Stephen.

Joanne McGraw testified that during a trip to Erie, Ohio with Carl Cacoma, she overheard a conversation between Ciotti and Cacoma: "Mr. Ciotti stated to Mr. Cacoma that he had just arrived back and that everything was settled. That was all I heard." Ciotti objected to the testimony and the judge "ordered it stricken," because it was "meaningless as far as the indictment" was concerned. Later in his charge the judge told the jury that "a defendant is never to be convicted upon mere suspicion or conjecture." The trial judge's actions cured any possible prejudice.

Ciotti next alleges that he was deprived of his right of confrontation of witnesses and a fair trial because of the denial of the severance. Once again, we disagree. Fasenmyer did not testify in his own behalf and the government sought to introduce into evidence an extensive inculpatory written statement Fasenmyer had made to F.B.I. Agent Stephen. On Ciotti's motion, the trial judge held an in camera evidentiary hearing, carefully scrutinized the statement, Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), and excluded it because it implicated co-defendant Ciotti. The judge did conclude, however, that Stephen would be allowed to testify as to Fasenmyer's admissions of his own conduct.

The government proceeded to make an offer on several specific questions it planned to ask the F.B.I. agent concerning the admissions by Fasenmyer. One of these was, "Did he [Fasenmyer] state what kind of an automobile was used during the check-passing activities? [Anticipated answer] That was a dark blue Oldsmobile." Ciotti, who according to Rickey's earlier testimony owned a dark blue Oldsmobile, did not object to the question and answer. The lack of objection, moreover, was not inadvertent. Ciotti's counsel explicitly said, "I can't object to that." When the agent was finally asked the question in the presence of the jury, Ciotti once again made no objection. Neither did he request a limiting instruction. On appeal, Ciotti now argues that the question concerning the Oldsmobile violated Bruton. This claim is made too late. United States v. Archie et al., 452 F.2d 897, United States v. Grasso, 437 ...

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