Petition — Russo v. United States

In the

Supreme Court of the United States.

Ocroser Term, 1976.

96-4201

RALPH RUSSO,

PETITIONER,

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the First Circuit.

Gerorce F. GorM.ey,

Juprrn E. Diamonp,

HARRINGTON AND GORMLEY,

75 Federal Street,

Boston, Massachusetts 02110.

(617) 426-1424

BATEMAN & SLADE, INC., BOSTON, MASSACHUSETTS.

Table of Contents.

Opinion below

Jurisdiction

Questions presented

Constitutional provision involved

Statement of the case

Reasons for granting this writ

I. The decision below presents a question of con-

stitutional law not yet definitively settled by this

Court

II. The decision below raises a question of trial

procedure of constitutional dimension mandating

review by this Court

Conclusion

Appendix

Judgment of the United States Court of Appeals for

the First Circuit, entered August 23, 1976

Opinion of the United States Court of Appeals for

the First Circuit, entered August 23, 1976

Table of Authorities Cited.

CasEs.

Hampton v. United States, U.S. , 96S. Ct. 1646

oe won WS

(1976) 5, 6, 7, 8

Roviaro v. United States, 353 U.S. 53 (1957)

9, 10

ii TABLE OF AUTHORITIES CITED.

United States v. McGrath, 468 F. 2d 1027 (7th Cir.

1972), vac. and rem. 412 U.S. 936 (1973), reh. den.

414 U.S. 883 (1973), aff'd, 494 F. 2d 562 (7th Cir.

1974) 8

United States v. Oquendo, 490 F. 2d 161 (5th Cir.

1974) 8

United States v. Russell, 411 U.S. 423 (1973) 6, 7,8

United States v. Spivey, 508 F. 2d 146 (10th Cir. 1975),

cert. den. 421 U.S. 949 (1975) 8

United States v. West, 511 F. 2d 1083 (3d Cir. 1975) 8

CONSTITUTIONAL AND STATUTORY PROVISIONS.

United States Constitution, Fifth Amendment 2,3

18 U.S.C. § 473 3

28 U.S.C. § 1254(1) 2

In the

Supreme Court of the United States.

Ocroser Texm, 1976.

RALPH RUSSO,

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the First Circuit.

The petitioner, Ralph Russo, respectfully prays that a

of certiorari issue to review the judgment and opinion of

United States Court of Appeals for the First Circuit entered in

this proceeding on August 23, 1976.

2

Opinion Below.

The opinion of the Court of Appeals, not yet reported,

appears in the Appendix hereto (pages 15-21).

Jurisdiction.

The judgment of the Court of Appeals for the First Circuit

was entered on August 23, 1976. This petition for certiorari

was filed within 30 days of that date. This Court's jurisdic-

tion is invoked under 28 U.S.C. § 1254(1).

Questions Presented.

(1) Whether in the circumstances of this case, either due

process or the Court’s supervisory powers bar conviction for

trafficking in contraband supplied by a government inform-

ant?

(2) Whether petitioner was denied a fair trial in violation

of his Fifth Amendment rights where he was denied access to

the government’s informant and precluded from questioning

the undercover agent with respect to the informent’s involve-

ment?

3

Constitutional Provision Involved.

United States Constitution, Amendment V:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use,

without just compensation.

Statement of the Case.

The instant case arises out of a one-count indictment re-

turned December 5, 1974, charging that the petitioner, Ralph

Russo, on November 25, 1974, knowingly sold, transferred,

and delivered false and counterfeit United States obligations in

the form of forty-four $100,000 Treasury bills, with the intent

that they be passed, published and used as genuine, in viola-

tion of 18 U.S.C. § 473.

The case was tried before a jury on August 15-19, 1975. The

evidence indicated that, on August 9, 1974, the petitioner had

been introduced to Secret Service Agent Guy Caputo, then

acting in an undercover capacity and going by the name of

Guy Marino (Tr. 56, 212-213), by a business associate of the

petitioner, one Clifford John Ellsworth (Tr. 114). It appeared

at trial that Ellsworth, unbeknownst to the petitioner, had at

4

that time been an informant for the government. Between

August and October, 1974, the petitioner was contacted a

number of times by Caputo, who sought to obtain various

counterfeit securities from the petitioner (Tr. 56-57, 216).

Caputo’s purported intent was to use the counterfeit securities

in conjunction with his fictitious partner, a bank vice-presi-

dent, as collateral for a phony loan, withdrawing the securities

from the bank before their maturation date so as to avoid dis-

covery of the fraud (Tr. 45, 131-133). Each time, the peti-

tioner responded that he could not obtain the materials re-

quested by Caputo (Tr. 217).

The petitioner testified that, in October, 1974, he was con-

tacted by Ellsworth, whom he knew to be involved in a

variety of profitable business ventures, and told to represent to

Caputo that the counterfeit Treasury bills he had requested

could be supplied (Tr. 215-220). The petitioner testified that

Ellsworth’s scheme was to pass securities in fact taken from

Elisworth’s mother to Caputo as counterfeit (Tr. 215-227).

After Caputo had withdrawn the securities, Ellsworth could

return them to his mother’s safety deposit box (Tr. 223). In

the end, then, Caputo and his fictional banker-partner would

be richer for having defrauded the bank in a phony loan

transaction; while, unbeknownst to Caputo, Ellsworth and the

petitioner would be richer for having conned Caputo with

fake “counterfeit” securities.

After a series of telephone calls to the petitioner, selectively

recorded by Caputo, arrangements were made for the delivery

of a “sample” bill at Logan Airport on November 22, 1974

(Tr. 38-42). The petitioner testified that earlier that same day

Ellsworth sent a newspaper containing the “counterfeit” secur-

ity to the petitioner for delivery to Caputo (Tr. 219).

On November 23, 1974, Caputo again called the petitioner

to arrange for delivery of the remaining 49 Treasury bills (Tr.

51-52). The petitioner testified that Ellsworth again sent him

5

the contraband the night before the delivery was to occur (Tr.

221-227). ‘The delivery took place at 3:30 on November 25,

1974, at Logan Airport (Tr. 54-55). In fact, only 44 securities

were received by the agents (Tr. 160). The petitioner was

thereupon arrested for the offense charged (Tr. 163).

The petitioner had filed a pre-trial motion calling for dis-

closure of informants’ identities. That motion was denied.

- At trial, stating that Ellsworth was known to the petitioner to

be the informer, defense counsel requested his production (Tr.

102), and attempted repeatedly to cross-examine Caputo con-

cerning Ellsworth’s participation. The government's objec-

tions to this line of questioning were sustained. After the

defendant had testified on his own behalf and had called Ells-

worth as a witness, the government informed the court that

Ellsworth recently had been injured and was unable to appear

(Tr. 268). Defense counsel thereupon requested leave to

depose Ellsworth, stating that, since every attempt to examine

the agent as to his involvement had been foreclosed by the

court and since only Ellsworth could testify as to his role in

the scheme, his testimony was critical to the defense (Tr. 269-

272). The trial judge, ruling that the petitioner’s story was

inherently incredible, denied the motion (Tr. 275).

On August 19, 1975, the petitioner was found guilty and

sentenced to ten years’ imprisonment. Although he was

continued on bail pending disposition, the petitioner’s motion

for bail pending appeal was denied.

On August 23, 1976, the judgment of the District Court was

affirmed by the Court of Appeals for the First Circuit. Rely-

ing on Hampton v. United States, U.S. , 96S. Ct. 1646

(1976), the Circuit Court concluded that, based on trial coun-

sel’s “less than diligent” efforts to locate Ellsworth or elicit

testimony from Caputo, and in light of petitioner's conceded

readiness “to join a scheme to ‘flim-flam’ Marino,” a crime

with which he was not charged, “it was not unfair to prose-

cute this case” (App. 18).

The court proceeded to find no error in denying petitioner a

continuance during which to take Ellsworth’s deposition, once

his location had been disclosed to the trial court, on the

ground that he had failed to provide corroboration, through

Caputo, of what the court felt to be an “extreme{ly] incredi-

b[le]” story (App. 20). At the same time, the trial court's

refusal to permit cross-examination of Caputo was upheld as

being a proper application of the Rules of Evidence. The

combined effect of these two rulings by the trial court, which

was to foreclose access to the only two sources of corrobora-

tive evidence available to the petitioner, was totally ignored by

the Court of Appeals. (See App. at 20-21.)

Reasons for Granting this Writ.

I. THe Decision BeLow PRESENTS A QUESTION OF

CONSTITUTIONAL Law Nor Yer DerinrtriveLy

SETTLED BY THIs CouRT.

In Hampton v. United States, supra, the Court was pre-

sented with the question of whether government supply of

contraband to the defendant constituted a per se bar to his

prosecution. Three justices agreed that, if predisposition were

found, government involvement could not violate the defend-

ant’s due process rights. Five justices, however, refused to

adopt this position in all cases, leaving open once again the

question unanswered in United States v. Russell, 411 U.S. 423

(1973): under what circumstances, if any, will government

procurement of a crime by supplying the contraband itself be

a bar to prosecution?

7

This question of impermissible government involvement is

now squarely before the Court. Caputo’s testimony, while it

established that the petitioner purported to be negotiating a

transaction for counterfeit securities, did not contradict the

petitioner’s story of Ellsworth’s involvement. While the

government represented to the court in a bench conference

that it had not provided Ellsworth with contraband to pass to

the petitioner, it did not deny either knowledge of Elisworth’s

participation or that he had in fact supplied the contraband

from his own sources (Tr. 99-101). Moreover, curious omis-

sions in the government’s case tended further to indicate the

government's knowledge of Elisworth’s role. These omissions

included the selective recording of telephone conversations, the

failure to record actual meetings, the failure to run a com-

parison of Ellsworth’s fingerprints with latent prints (none of

which proved to be the petitioner's) found on the contraband,

and failure to conduct surveillance of either Ellsworth or the

petitioner prior to the November 22 and November 25 meet-

ings between the petitioner and the agents. Thus, the instant

case differs in several respects from either Russell, supra, or

Hampton, supra. Unlike Russell, supra, there was in the in-

stant case no evidence of an on-going criminal enterprise infil-

trated by government operatives. Unlike Hampton, supra,

where the testimony of the informant not only contradicted

the defendant's story but also showed the defendant to have

been the moving force in the criminal enterprise, there was no

evidence in the instant case which conflicted with petitioner's

account of being solicited by Caputo, set up and supplied by

Ellsworth and duped into acting as a conduit of contraband

from one government operative to another. In such circum-

stances, prosecution for a crime which could not have

occurred without governmental participation must be held to

exceed the bounds of fair play.

8

Great uncertainty has been demonstrated in the lower courts

in the aftermath of Russell, supra. Contrast, e.g., United States

v. Oquendo, 490 F. 2d 161 (5th Cir. 1974); United States

v. West, 511 F. 2d 1083 (3d Cir. 1975); United States v.

Spivey, 508 F. 2d 146 (10th Cir. 1975), cert. den. 421 U.S.

949 (1975) (applying this approach but finding it unmet); and

United States v. McGrath, 468 F. 2d 1027 (7th Cir. 1972),

vac. and rem. 412 U.S. 936 (1973), reh. den. 414 U.S. 883

(1973), aff'd, 494 F. 2d 562 (7th Cir. 1974). That uncer-

tainty was in no way ameliorated by the Court's decision in

Hampton, supra. Because of the importance of the matter at

issue, it is submitted that certiorari should be granted in the

instant case to resolve the issue.

II. THe Decision BeLow Raises A QUESTION OF TRIAL

PROCEDURE OF CONSTITUTIONAL DIMENSION

MANDATING REVIEW BY THIS CouRT.

The two primary defenses raised at trial were excessive

government involvement and lack of intent. With respect to

both issues, the role of John Ellsworth was of critical im-

portance. Two avenues, apart from his own testimony, were

open to the petitioner as means of presenting that role to the

jury: Caputo and Ellsworth. Yet the petitioner’s attempts to

elicit evidence from these sources were blocked by the trial

court, which was upheld on appeal.

On cross-examination of Agent Caputo, after eliciting the

fact that Ellsworth had introduced the petitioner to him,

counsel attempted repeatedly to probe Ellsworth’s relationship

to the agent and the agent’s knowledge of the informer’s acti-

vities. The questions involved were: how long had you known

Ellsworth (Tr. 114), how did you come to meet him (Tr. 114),

who introduced you to him (Tr. 114), how many times be-

tween October 15 and November 25 did you meet or talk with

Ellsworth (Tr. 116), was Ellsworth working with you (Tr.

121), what was Ellsworth’s involvement (Tr. 135), what was

the involvement of three others named in a government report

as suspects (Tr. 135), had not Ellsworth been arrested by you

before (Tr. 142), was Manny Kassolakis (one of the three

named) involved with Ellsworth (Tr. 143), do you know

- where Kassolakis was on November 24 or Novermber 25 (Tr.

143)? As to each of these questions the government’s objection

was sustained. From discussions at the bench, it was clear

that it was the substance of the questions and not their timing

which provided the basis for the judge’s rulings.

With respect to the informant Ellsworth, both prior to and

during trial, the petitioner sought the court’s assistance in

compelling the production of Ellsworth. Despite petitioner’s

attempts to cross-examine Caputo, the government argued,

and the court apparently agreed, that, in the absence of some

corroboration of the petitioner's testimony, it was under no

obligation to produce its informant. After the petitioner had

testified on his own behalf, the government disclosed to the

court that Ellsworth had been injured and was unable to

travel (Tr. 268). In response to the petitioner’s request for

leave to take Ellsworth’s deposition, the government again

disclaimed any obligation to produce the informant (Tr. 270),

pointing once again to the lack of corroboration and the fact

that Ellsworth had not been present at the actual sale (Tr.

274). The court ruled that since it found “the testimony of

Mr. Russo to be inherently incredible and inherently improb-

able [there was] no burden on the Government to produce the

informant” (Tr. 275). Defense counsel objected to this ruling

(Tr. 275).

Whatever the scope of the government's obligation to

produce informants, and this was clearly not a case in which

anonymity was at stake, see Roviaro v. United States, 353

10

U.S. 53 (1957), justice clearly required production of the in-

formant in the form of his testimony under oath in the instant

case. The petitioner’s account of the informant as prime mover

and supplier, uncontradicted by the government’s witnesses,

established a degree of participation and knowledge on

Elisworth’s part which guaranteed that his testimony would

be, not just material, but determinative of both the entrap-

ment defense and the question of knowledge and intent.

Moreover, as noted above, since cross-examination of Caputo

had already been prohibited, Ellsworth’s testimony became

critical.

The petitioner thus found himself locked into an impossible

position. On the one hand, his defenses of government involve-

ment and lack of intent depended upon corroboration of the

Ellsworth story, while, on the other, he had been precluded

from obtaining that corroboration from the only possible

sources, Caputo and Ellsworth. The effect of the court’s rulings

was thus to deprive the petitioner of his constitutionally guar-

anteed right to a fair trial. In these circumstances, reversal was

required. The Court of Appeals’ action in upholding the trial

court’s rulings, based as it was on an overly rigid application

of procedural rules, utterly ignored the damage done to the

petitioner’s defense. This blatant violation of due process

principles demands review by this Court.

ll

Conclusion.

For the reasons set forth above, a writ of certiorari should

issue to review the judgment and opinion of the First Circuit.

Respectfully submitted,

GEORGE F. GORMLEY,

JUDITH E. DIAMOND,

HARRINGTON anp GORMLEY,

75 Federal Street,

‘Boston, Massachusetts 02110.

(617) 426-1424

Attorneys for Petitioner.

12

13

Appendix.

) United States Court of Appeals

| for the First Circuit.

No. 75-1362.

UNITED STATES OF AMERICA,

Judgment

Entered August 23, 1976

This cause came on to be heard on appeal from the United

States District Court for the District of Massachusetts, and was

argued by counsel.

Upon consideration whereof, It is now here ordered, ad-

judged and decreed as follows: The judgment of the district

‘ court is affirmed.

By the Court:

: /s/ DANA H. GALLUP

Clerk.

15

United States Court of Appeals

For the First Circuit

No. 75-1362

UNITED STATES OF AMERICA,

APPELLEE,

v.

RALPH RUSSO,

APPELLANT.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

{How. MaLootm M. Lucas*, U. S. District Judge)

Before Corrin, Chief Judge,

McExtez and Campsei, Circuit Judges.

brief appellant.

. Brown, Attorney, Department of Justice, with whom James N.

Gebdriel, United States Attorney, and Mervyn Hamburg, Attorney, Department

of Justice, were on brief, for appellee.

F. Gormley and Judith BE. Diamond, with whom Herrington end

c

August 23, 1976

Corrin, Chief Judge. Appellant was convicted by a jury

of selling, transferring and delivering 44 counterfeit

| $100,000 United States Treasury bills, in violation of 18

| U.S.C. § 473.

| A Secret Service agent testified that, having assumed the

| name Marino, he was introduced to appellant in August,

1974. The agent testified that over a period of several

months he sought counterfeit Treasury bills from appellant,

telling him that they were to be used as collateral for a bank

* Of the Central District of California, sitting by designation.

16

2 Uv. Ss. Vv. RUSSO

loan, the intent being to withdraw them prior to their ma-

turity date so that the fraud would never be discovered.

In a series of phone calls between the agent and appellant,

a deal seemed close in October, 1974, but failed to material-

ize. In November, however, appellant contacted the agent,

a meeting was arranged, and appellant provided the agent

with a sample bill. This being pronounced satisfactory,

further calls were made to set up the transfer of the rest.

A second agent went to pick those up; he testified to arrest-

ing appellant after that transfer took place. Photos of the

delivery and arrest were introduced. A number of the

October and November telephone calls which had been re-

corded by the Secret Service agent were played to the jury.

Taken at face value, these tapes showed the negotiations

for the sale, culminating in an agreement (with a price of

nine per cent of face value), as well as considerable knowl-

edge of the field on appellant’s part. A government expert

testified to the counterfeit nature of the bills.

Appellant took the stand and admitted the substance of

the facts related by the agents, including the accuracy of the

taped telephone conversations. He presented a defense of

lack of intent, claiming that John Ellsworth, who had intro-

duced him to the Secret Service agent (as Marino) in

August, had put him up to a scheme to defraud Marino by

selling him real $100,000 Treasury bills and pretending they

were fakes. Thus, appellant testified, he thought the bills

were genuine. Appellant explained the phone conversations

and his other statements to Marino as part of Elisworth’s

scheme to defraud Marino into thinking the bills were coun-

terfeit.1 Moreover, appellant charged that Ellsworth was

1 It might seem to be the reverse of fraud te sell $4,400,000 worth of real

Treasury bills to someone for $396,000. (A tly the rate even for

fer counterf .) However

appellan

his mother’s safe-deposit box and, the ‘‘sale’’ te ultimately

return them after Marino, having used te procure the lean, withdrawn

17

OPINION OF THE COURT 3

a government informant who, by supplying him with the

contraband, had made him a conduit in a sale from the gov-

ernment to the government.

The issue of entrapment was presented to the jury under

instructions which reflected the teaching of United States v.

Jett, 491 F.2d 1078 (1st Cir. 1974), that evidence of induce-

ment can be disbelieved or that the government’s burden on

predisposition can be satisfied without independent evi-

dence. The jury’s finding against appellant on this score was

more-than justified in light of the ease with which he had

managed the transactions, his obvious knowledge of the ins

and outs of counterfeiting, the implausibility of the story

which he professed to believe, and especially the absence of

any evidence of unreadiness. See Kadis v. United States,

373 F.2d 370 (ist Cir. 1970). Indeed, appellant did not in

fact present a defense of entrapment: he testified not that

he was corrupted into selling counterfeit bills, but that he

did not (through lack of intent) commit that crime at all.?

The major argument on appeal is that fundamental fair-

ness should bar appellant’s prosecution as the conduit in a

government-to-government sale. This contention falls under

the intervening decision in Hampton v. United States, No.

74-5882 (Supreme Court, April 27, 1976). Justice Powell’s

determinative opinion in that case reaffirms the ruling in

United States v. Russell, 411 U.S. 423 (1973), that the de-

fense of entrapment is focused on predisposition. More-

18

4 Uv. 8S. v. RUSSO

over, while refusing to go so far as the Hampton plurality

in ruling out a fundamental fairness argument in an out-

rageous case regardless of predisposition, Justice Powell

agreed with the plurality that a government-to-government

sale with the defendant as conduit did not per se require

reversal. Nor can we say that there was any outrageous

police conduct in this case. The government made an offer

of proof that the informant was in fact merely an intro-

ductory device, and that the actual supplier was a real

counterfeiter who had subsequently been arrested and

charged in another indictment. Appellant’s story was im-

plausible at best; he was less than diligent in searching out

the one person (Ellsworth) who could have completely cor-

roborated it (if it was true) ; and he failed to call the agent

(Marino) who could have testified concerning government

knowledge of Elisworth’s activities? Cf. Jett, supra, 491

F.2d at 1081. Moreover, by appellant’s own account he

needed no persuasion to join a scheme to ‘‘flim-flam’’

Marino for some $400,000. We are convinced that it was not

unfair to prosecute this case.

Appellant also objects to the trial court’s failure to grant

a continuance (after all the testimony had been heard) to

allow a deposition of Elisworth. The objection trips on de-

fendant’s own inaction. If indeed Ellsworth told appellant

the bills were real, Ellsworth’s crucial role in appellant’s

defense must have been known from the arrest and indict-

ment eight or nine months prior to trial. Elisworth was a

business associate of appellant’s and well known to him.

Appellant had Ellsworth’s address and phone number, and

3 Objection is made to the trial judge’s restriction of cross-examination of

the agent about Elleworth’s role. But the subject was not part of the govern-

ment’s case and was outside the J

Rule 611(b). Indeed, during the

that the attempt was ‘‘premature’’. United States v. Remires, 633 F.2d 138,

141 (5th Cir. 1976).

NE nO OE OE OL Oe ll a

19

OPINION OF THE COURT 5

the government asserted that Ellsworth had not been and

was not currently in hiding. The defense stated vaguely

that it tried to get in touch with Ellsworth about two months

prior to the August, 1975, trial, but there is no indication of

diligence. At no time did appellant attempt to subpoena

Elisworth.

The fact that Elisworth may have been an informant does

not help appellant here. The government asserted that the

informant was only an introductory device; even by appel-

lant’s version he did not witness or participate in the actual

crime. The government had no reason to expect even a bur-

den of disclosure under Rovario v. United States, 353 U.S.

53 (1957). See United States v. Skeens, 449 F.2d 1066, 1071

(D.C. Cir. 1971) ;Zaroogian v. United States, 367 F.2d 959

(1st Cir. 1966). Less than two weeks prior to trial appellant

filed a conclusory boilerplate motion for disclosure, but the

motion did not refer to any facts of the case at hand, and it

was properly denied.‘ Appellant could gain nothing from

this pro forma request; some specific indication of need is

required. See United States v. Alvarez, 469 F.2d 1065 (9th

Cir. 1972). Nor does it appear that the supposed entrap-

ment defense (which failed to materialize) was raised prior

to trial with any specificity. See United States v. Mehciz,

437 F.2d 145 (9th Cir. 1971).

Appellant appears to argue that his mid-trial request put

a burden of production on the government, the necessity

for a continuance being a fortiori when it turned out Ells-

worth was incapacitated.5 But there is no absolute rule of

4The motion also was internally inconsistent, sisting generally that die-

closure was necessary since the informant could testify as to the defendant's

state of mind and also could throw doubt on the identity of the defendant. We

note that the latter assertion, among others in the motion, was directly contra-

ieted by appellant's later testimony. '

5 At the end of the first day of the two-day trial, a Friday, the defense stated

that it knew Ellsworth must be an informant and requested his production.

20

6 U. &. UV. RUSSO

production. United States v. Davila Williams, 496 F.2d 378,

383 (1st Cir. 1974). Here, there was no indication that ap-

pellant, with some diligence, could not have located Ells-

worth in advance of trial, either with the information avail-

able to him or by subpoena. And Ellsworti’s unavailability

cannot be attributed to a failure of reasonable diligence or

cooperation on the government’s part.6 Finally, the court

could properly consider the extreme incredibility of appel-

lant’s story, his failure to call the Secret Service agent for

partial corroboration, and the government’s contrary offer

of proof. It was not error to deny the continuance. See also

United States v. Enrique Diaz, No. 74-1427 (1st Cir., May 5,

1976).

Appellant’s next point is that because Marino was aware

that he was buying counterfeit bills, there was no evidence

in support of the statutory requirement of ‘‘intent that the

same be passed, published, or used as true and genuine.’’

This argument overlooks the fact, reflected in the taped

phone calls and admitted by appellant, that Marino told

appellant he was going to use the fake bills as collateral for

a bank loan. The further twist that this transaction pur-

portedly was going to be accomplised with the connivance

of one of the officers of the bank does not negate the fact

Sho tele Sates tod Se wate eeee seenes ae eee Sp ae

ment contact Ellsworth over the weekend in case of an gp, &, After

appellant testified on Monday, the defense called Elleworth in Af Ay In

a bench conference, the government stated that it had located Elleworth, con-

fined with a slipped disc and under doctor’s orders not to travel for at least

two wecks. At that point the dofense request for a continuance in order

take a deposition was made and denied, the court noting that it fou

lant’s story inherently incredible.

6 See United States v. Super, 492 F.2d 319 (2d Cir. 1974); United States v.

Fallings, 482 F.2d 1352 (5th Cir. 1973); United States v. Weinberg, 478 F.24

1351 (3d Cir. 1973); United States v. 471 F.2d 1350 (2d Cir. 1972);

United States v. Prada, 451 F.2d 1319 (2d Cir. 1971); United States v. Esco-

bedo, 430 F.2d 603 (7th Cir. 1970); United States v. Glass, 371 F.2d 418 (7th

Cir. 1966); Velarde-Villareal v. United States, 354 F.2d 9 (9th Cir. 1965).

Nor, under the circumstances, can we say that government had any duty to

ascertain Elisworth’s availability im advance of trial. Compare United States

v. Jones, 492 F.2d 239 (3d Cir. 1974).

eee a

ENT ee te te el toe aa,

a

Ee OIE

ee ee oe Oe, Ce * » ou» =~

21

OPINION OF THE COURT 7

that Marino’s stated purpose was to use them as genuine

vis-a-vis the bank itself. There is no requirement under

§ 473 that it be the immediate purchaser who is defrauded.

Hart v. United States, 396 F.2d 243 (8th Cir. 1968).

Finally, appellant objects to the impeachment of his credi-

bility on cross-examination through evidence of a 1966

manslaughter conviction and a 1970 arson conviction. Ap-

pellant’s credibility was a significant issue in the trial, there

wes * proper limiting instruction, and the court determined

that the probative value of the evidence outweighed its pre}-

udicial effect. F. R. Evid., Rule 609(a). There was no abuse

of discretion.

Affirmed.