The opinion of the court was delivered by: MCGLYNN
Nicholas Caramandi was convicted by a jury of Conspiracy and Possession of Counterfeit Currency.
The Government's case rested upon the testimony of several Secret Service Agents and Frederick Angelucci, an indicted co-conspirator who had entered a plea of guilty. Caramandi moved for a new trial and for arrest of judgment. These motions were denied for the reasons which follow.
Motion In Arrest of Judgment
Defendant's Motion In Arrest of Judgment asserts (a) that there was not sufficient evidence to sustain a conviction, (b) the verdict was against the weight of the evidence, and (c) the verdict was contrary to law.
Rule 34 of the Federal Rules of Criminal Procedure provides only two grounds for arrest of judgment: (a) the indictment or information does not charge an offense and (b) the Court is without jurisdiction of the offense charged. Since neither contention is made here, the motion was denied.
However, Caramandi moved for Judgment of Acquittal at the close of the evidence, which motion was denied, and therefore I have treated the Motion In Arrest of Judgment as also being a renewed Motion for Judgment of Acquittal under Rule 29(c). Since I was satisfied that there was evidence sufficient to sustain the conviction, the motion under Rule 29(c) was also denied.
The defendant asserted three grounds for his Motion for a New Trial:
(a) The verdict was against the weight of the evidence,
(b) The Government knowingly permitted the use of false testimony by its "key" witness, and
(c) The Court erred in giving a one-sided charge to the jury.
A -- The Weight of the Evidence
When a movant alleges that the verdict against him is against the weight of the evidence, the Court must act as a "thirteenth juror", assessing the credibility of the witnesses and weighing the evidence objectively. If the Court reaches the conclusion that the verdict is contrary to the weight of the evidence and that a miscarriage of justice may have resulted, the verdict may be set aside. United States v. Morris, 308 F. Supp. 1348 (E.D.Pa.1970). The power to grant a new trial on this ground "should be granted only in exceptional cases in which the evidence preponderates heavily against the verdict." United States v. Kermidas, 332 F. Supp. 1312 (M.D.Pa.1971).
The testimony of the Government's witnesses, if believed, was more than ample to prove all the essential elements of the crimes charged. Therefore, the issue is refined to a question of credibility, a matter which is peculiarly within the province of the jury. The testimony of the co-defendant, Angelucci, was not only inherently credible, but the corroboration by Agents of the Secret Service was sufficient to overcome any reluctance one might have in accepting the testimony of an accomplice.
On June 29, 1974, Caramandi and a fourth co-defendant, John Terlingo, were observed by Secret Service Agents arranging brown paper bags in the trunk of Caramandi's automobile. They were later observed driving in the area of 7th and Dickinson Streets where Terlingo placed a brown paper bag containing 533 counterfeit federal reserve notes behind the wheel of a car parked on Beulah Street near Dickinson. Caramandi and Terlingo were then arrested by the Agents of the Secret Service. An examination of Caramandi's vehicle disclosed that the trunk had a trap door device which, when activated by the driver was capable of dropping packages from the trunk.
It was further established by Angelucci's testimony that in late May or early June, he and Polidoro had met Cicalese in a night club where Cicalese asked them if they would be interested in selling counterfeit.
They agreed, and on June 28, pursuant to a call from Cicalese, Polidoro and Angelucci drove with Cicalese to the St. Francis Room of the Drake Hotel. Cicalese said he had to meet Caramandi, from whom he was trying to get some samples.
Angelucci, after waiting in the car, entered the hotel to use the men's room. He saw Cicalese and Caramandi standing together in the hallway outside the St. Francis Room. When Cicalese returned to the car, he showed Angelucci and Polidoro four or five sample ten dollar bills.
After viewing the samples, Cicalese and Angelucci agreed to order $15,000. face value in counterfeit money and Cicalese returned to the Hotel and placed the order. This consignment was picked up the following day by Cicalese and it was received in a brown paper bag. Upon examination, it appeared that some of these bills were "bad" in that the ink was smeared or the faces were blank. Because of the bad bills, it was agreed that they would pay $1,200. instead of $1,500. and Angelucci testified that he saw Cicalese hand $750. to Caramandi who put it in his pocket. At this meeting which took place on July 3, 1974, Angelucci asked Caramandi if there was more money available and he said yes, but "the heat was on". It is to be noted that Caramandi had been arrested four days earlier on June 29, 1974 and was participating in an ongoing conspiracy because as Caramandi said, "I need the money as much as anybody else to pay the lawyers".
Three or four days later, another meeting took place at a bar at 7th and Kater Streets and Caramandi was asked when the next package was going to come through. Caramandi was not able to give them anything specific, but told them to be at that bar every day at approximately 11:00 in the morning. On July 8th, Cicalese received a telephone call at the bar and Cicalese stated that it was Caramandi. They drove to 6th and Tasker where Angelucci got out of the car and Caramandi got into it. Five or ten minutes later, three blocks away, Cicalese pulled up in the automobile, but Caramandi was not with him. When Angelucci got into the car, there was, lying on the floor, a brown paper bag containing counterfeit bills which totaled approximately $22,000. face value. Fifteen thousand dollars of this batch was sold to a Secret Service undercover agent the following day, at which time Angelucci was arrested. From that point on, Angelucci agreed to cooperate and to act as a Government informant in the further transactions.
Angelucci then testified concerning a transaction which took place on the morning of July 12, 1974 when Cicalese told him that he received a call from Caramandi telling him to go to the vicinity of 6th and Tasker Streets. Angelucci and Cicalese drove to 6th and Tasker in Angelucci's car. Angelucci left the vehicle and Cicalese drove off. Shortly thereafter, Cicalese returned and said he didn't get the money because "Nicky got jumpy" and called it off because he thought he saw some Secret Service Agents in the vicinity. Cicalese left again while Angelucci was calling the agents to apprise them of the washout, but he returned a short time later carrying a brown grocery bag under his arm. Angelucci testified that Cicalese told him that at Caramandi's direction, he went to 17th and Moore and that Caramandi met him and directed him to go up a side street where he would and did receive the package from another person.
This testimony is corroborated by a Secret Service Agent ...