United States v. Albert Nasta, 398 F.2d 283, 2d Cir. (1968)
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Scribd Government DocsUnited States v. Albert Nasta, 398 F.2d 283, 2d Cir. (1968)
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Scribd Government Docs398 F.
2d 283
UNITED STATES of America, Appellee,
v.
Albert NASTA, Appellant.
No. 523.
Docket 32277.
United States Court of Appeals Second Circuit.
Argued June 17, 1968.
Decided July 17, 1968.
1
Daniel E. Isles, Orange, N. J., for appellant.
Elkan Abramowitz, Asst. U. S. Atty., New York City (Robert M. Morgenthau,
U. S. Atty. for Southern Dist. of New York, New York City, and Pierre N.
Leval, Asst. U. S. Atty. New York City, on the brief), for appellee.
Before MOORE and HAYS, Circuit Judges, and TIMBERS, District Judge. *
TIMBERS, District Judge:
Albert Nasta appeals from a judgment of conviction entered March 15, 1968
upon verdicts of guilty on three counts of a three count indictment after a two
day trial in the Southern District of New York before Charles H. Tenney,
District Judge, and a jury. Count One charged Nasta and two others, Joseph
Abbate and Michael Ricciardi, with selling approximately $5,000 in counterfeit
$10 bills on May 20, 1964 in violation of 18 U.S.C. 473 and 2. Count Two
charged Nasta and Ricciardi with similar violations for selling approximately
$15,000 in counterfeit $10 bills two days later. Count Three charged Nasta,
Abbate and Ricciardi with conspiracy to sell counterfeit money in violation of
18 U.S.C. 371. Nasta was tried separately from the other two defendants and
received a two year sentence.
Appellant contends that the government's summation to the jury constituted
improper comments on his failure to testify. Appellant also asks us to review
the trial court's refusal to order the government to disclose portions of
documents pursuant to the Jencks Act, 18 U.S.C. 3500. We find no error and
affirm the judgment of conviction.
6
The evidence adduced at the short trial is straightforward and may be briefly
summarized. Secret Service Agent James D'Amelio testified that he was first
introduced to Nasta on May 11, 1964 at a meeting attended by Abbate, a person
named Lenny Kaufman, and an informer named Richard Bilello. Nasta
indicated that he would supply the agent with counterfeit bills. Another
undercover agent, Leonard Vecchione, testified that he, along with Bilello, met
Nasta on May 18. Nasta introduced the agent to a man named "Frankie" and
then continued to discuss the arrangement for the sale of counterfeit bills with
Vecchione. The two agreed to meet the next evening. They did, and further
arrangements were made. On the following day Nasta gave the agent 508 $10
counterfeit bills in return for $600 in real currency from the agent. The agent
next met with Nasta on May 22 when the agent paid him an additional $400.
Later that day Nasta turned over another 1,480 counterfeit $10 bills to the agent
with the expectation of payment. Nasta was then arrested. Surveilling Secret
Service agents corroborated the testimony of the two agents as to Nasta's
physical movements on the days in question.
Nasta relied completely on the defense of entrapment. The only witness he
called was his brother, and he simply as a character witness.
The remarks to which appellant objects were made after defense counsel in his
summation had strenuously argued that Nasta had been entrapped. Defense
counsel in particular asked the jury to conclude that because the government
apparently had no knowledge that Nasta had been dealing in counterfeit money
prior to the meeting with Agent D'Amelio, Nasta must not have been
predisposed to commit the crimes. In response, the government made the now
challenged statements to the effect that there was no evidence from the witness
chair that Nasta had not previously dealt in counterfeit money; that there was no
testimony or evidence to contradict the government's witnesses; that counsel's
remarks could not contradict evidence; and that there was no testimony or
evidence that the government persuaded, or in any way induced, Nasta to make
the sales.
The government's remarks amounted to no more than a general comment on the
posture of the case with respect to Nasta's claim of entrapment. Cf. United
States ex rel. D'Ambrosio v. Fay, 349 F.2d 957 (2 Cir.), cert. denied, 382 U.S.
921 (1965). Defense counsel's speculative and totally unsubstantiated argument
to the jury necessitated and justified the government's response. The jury must
have been well aware that in addition to Nasta at least three other persons,
Bilello, Kaufman and "Frankie," could have supplied the evidence that the
government noted was lacking, if such evidence existed. Furthermore, the trial
court in its charge instructed the jury that evidence of inducement could come
from the government's own witnesses on direct or cross-examination. Thus the
government's comments in no way focused on appellant's failure to take the
stand.
10
Even assuming that language in the government's summation was ambiguous
and indirectly invited the jury's attention to appellant's failure to take the stand,
no possible prejudice could have resulted. The evidence against appellant was
overwhelming, and there was nothing in the case to support the claim of
entrapment except defense counsel's argument. If there was error, it was
"harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24
(1967).
11
Finally, where as here the comments are at most ambiguous, an instruction to
the jury will suffice to avoid possible prejudice. It is appropriate, therefore, to
require counsel to make an immediate objection and request curative
instructions. Since counsel did not do this but merely moved for a mistrial at
the conclusion of the summations, appellant is precluded from raising the issue
now. See Holden v. United States, 388 F.2d 240 (1 Cir. 1968); United States v.
Weisman, 366 F.2d 767, 768 (2 Cir. 1966); cf. United States v. Kyle, 257 F.2d
559, 564 (2 Cir. 1958), cert. denied, 358 U.S. 937 (1959).
12
We have reviewed the trial court's Jencks Act rulings with respect to the Secret
Service case report and the report of Agent D'Amelio and find no error. Only
very small portions of this material were withheld from the defense and none of
it related to the direct testimony of the witnesses.
13
Affirmed.
Notes:
*
