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United States v. Fioravanti

decided: June 16, 1969.

UNITED STATES OF AMERICA
v.
JOHN FIORAVANTI, NICHOLAS PANACCIONE, AND ANGELO PEPE, NICHOLAS PANACCIONE, APPELLANT



Seitz, Aldisert and Stahl, Circuit Judges.

Author: Aldisert

Opinion OF THE COURT

ALDISERT, Circuit Judge.

This is an appeal from a conviction in a counterfeiting case in which the appellant was found guilty by a jury largely on the testimony of a Secret Service Agent who testified that the appellant and two other defendants, who pleaded guilty to the charges, had participated with him in the negotiations for and the delivery of a quantity of counterfeit money.*fn1

At trial, the agent testified on direct examination that, acting in an undercover capacity, he made arrangements with the co-defendant Pepe to purchase the counterfeit currency. The agent was instructed to meet Pepe's partner in a train station in Trenton, New Jersey. Co-defendant Fioravanti met him as planned and instructed him to go to the bar where a man would appear with the key to a locker containing the money. Appellant entered the bar, and being advised by Fioravanti that the secret agent was the man who came to purchase the counterfeit money, he reached into his pocket, took out a key, and handed it to Fioravanti, who in turn gave it to the agent. Fioravanti instructed the agent to go to the locker and examine the money. If satisfied, he was to return and pay Fioravanti.

The agent followed the instructions. Satisfied that the money in the locker was counterfeit, he gave a pre-arranged signal to other Secret Service operatives who pounced upon the group and placed all of them, including the agent, under arrest.*fn2 The four men were taken to the United States Marshal's Office, and for a short time, were confined in a detention room colloquially referred to as the "bull pen."

On cross-examination by appellant's counsel, the agent was asked to disclose the conversations between him and the appellant while both were confined in the bull pen. No mention of this conversation was made on direct examination by the government. In response to the question put to him by appellant's counsel, the agent reported that appellant said "that Mr. Fioravanti had too much heat, that if he had known I had come from New York, he would have delivered the money himself directly to me rather than come through Mr. Fioravanti, who had too much heat on him."

Appellant has made numerous assignments of error which we have carefully considered. We conclude, however, that only three of them warrant discussion in this opinion: (1) whether the lower court abused its discretion in disallowing certain discovery requests; (2) whether the reception into evidence, without objection, of appellant's incriminating statement constituted a violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) and (3) whether the court's use of the so-called "Allen Charge" was reversible error.

I. DENIAL OF DISCOVERY

In a widely-ranging request for discovery, defendant asked the court to order the government to disclose "anything which is or could be helpful to the defendant in the preparation of his defense,"*fn3 and to set forth in detail "how the Government intends to prove that the defendant, Panaccione, knew that the obligation of the United States referred to in this count were 'falsely made, forged and counterfeited'." In addition there was also a request for "written or recorded statements, confessions or admissions made by the defendant, Panaccione, or by any co-defendant named in the instant indictment, or any copies thereof. * * *"*fn4

The extent to which pretrial discovery should be permitted in federal criminal cases is admittedly a complex and controversial question.*fn5 All of the ramifications of Amended Rule 16, purportedly liberalizing discovery, have not yet been explored. Nonetheless, there are certain basic principles governing the scope of discovery which have become firmly entrenched.

First, an application for relief under the discovery rules is a matter within the sound discretion of the district court*fn6 and its ruling will be disturbed only for an abuse of discretion.*fn7 Appellate courts have been increasingly reluctant to find that the denial of a particular discovery motion was an abuse of discretion in the absence of a showing that the defendant was prejudiced by such denial.*fn8 Here, appellant has not attempted to show any actual prejudice in the sense that the material requested in his discovery motion had a definite bearing on the issue of either guilt or punishment. Instead, he contends that the denial of all his pretrial motions was per se prejudicial.

Secondly, we do not believe that Rule 16 requires the prosecution to disclose all the minutia of its evidence, to reveal its trial strategy, and to delineate with total specificity the case it intends to present.*fn9 Without negating the premise that certain demands for evidentiary material may be within bounds of permissible discovery, we simply say that the lower court here did not abuse its discretion in denying a motion for the production of "all evidence favorable to the accused" and "how the Government intends to prove [an element of the substantive offense charged]," where the defendant failed to set forth a reasonable description of the requested information which the government attorney and the court could use as a guideline.*fn10

Appellant suggests that the broad language of Brady v. State of Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), automatically commands the district court to order a wholesale disclosure of "all evidence favorable to the accused." In Brady, the harm consisted of a withholding by the government of certain evidence which would have exculpated the defendant.*fn11 Here the reverse was true. The government possessed no exculpatory evidence, but only the government agent's notes of incriminatory statements made by the defendant and various other information not materially in issue.*fn12 And when the report of the agent was requested by appellant's counsel at trial it was readily turned over to him.

II. MIRANDA ARGUMENT

We now turn to the question whether the court committed plain error in admitting the statement made while in custody without previous Miranda warnings. To argue this point successfully appellant must surmount two obstacles: he must recognize that the record does not affirmatively disclose that the statement was the product of police interrogation; he must demonstrate that the reception of this evidence, without objection and at the instance of defense counsel, amounted to plain error.

The proscription of the Fifth Amendment does not foreclose the introduction of all testimony of the defendant; the mischief it seeks to avoid is the use of any process which compels a defendant to make testimonial utterances against his will. If no compulsion, active or constructive, has been used to elicit ...


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