Appendix — Panzavecchia v. United States

APPENDIX A

OPINION AND JUDGMENT BELOW IN CASE No. 30044

(TITLE OMITTED)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

e

JOHN EMANUEL PANZAVECCHIA,

Defendant-Appellaut.

Appeal from the United States District Ceurt for the

Southern District of Florida

(May 28, 1971)

Before BROWN, Chief Judge, and PHILLIPS,* and

INGRAHAM, Circuit Judges.

PHILLIPS, Circuit Judge: Panzavecchia, hereinaf-

ter referred to as the defendant, was charged by a

two-count indictment with violations of 18 U.S.C. § 472.

The first count charged that “on or about January

12, 1968, at Shatkin Drugs, in Hollywood, Broward

*Of the Tenth Circuit, sitting by designation.

App. A-2

County, in the Southern District of Florida John Eman-

uel Panzavecchia with intent to defraud, did pass and

utter a certain counterfeit obligation of the United

States, to wit: One counterfeit $10.00 Federal Reserve

Note (Series 1950 E) drawn on the Federal Reserve

Bank of San Francisco, California, bearing Seria! No.

L 42853082 D, and which the defendant then knew to

be counterfeit, in violation of Title 18, United States

Code, Section 472.”

The language of Count One and the language of Count

Two is identical, except the former alleges that the

offense therein charged was committed “at Shatkin

Drugs” and the latter alleges that the offense therein

charged was committed “at Iris Drugs.”

Thus, it will be seen that the alleged different of-

fenses involved two different Federal Reserve Notes,

although the serial number of both was the same and

they were both of the same series and issued by the

same Federal Reserve Bank.

The defendant was tried and found not guilty

on Count One and found guilty on Count Two. The court

entered a judgment of acquittal on Count One and a

judgment of conviction on Count Two and imposed sen-

‘tence.

Prior to the return of the indictment in this case,

the defendant had been charged in a three-count indict-

ment with violations of 18 U.S.C. § 472. Count One

of such indictment charged that “on or about January

12, 1968, at Hollywood, in Broward County, in the

App. A-3

Southern District of Florida, the defendant, John

Emanuel Panzavecchia with intent to defraud, did

pass and utter a certain counterfeit obligation of the

United States. to wit: One counterfeit $10.00 Federal

Reserve Note (Series 1950 E) drawn on the Federal

Reserve Bank of San Francisco, California, bearing

Serial No. L 42853082-D, and which the defendant then

knew to be counterfeit, in violation of Title 18, United

States Code, Section 472.”

The language in Counts Two and Tree of such in-

dictment was identical with the language of Count One.

The Government, in response to a motion of the de-

fendant, filed a bili of particulars in an effort to distin-

guish the offenses sought to be charged in the three-

count indictment by stating that the offense charged

in Count One was committed at “Shatkin Drugs,” the

offense charged in Count Two was committed at “Iris

Drugs,” and the offense charged in Count Three was

committed at “Burger King Restaurant.”

It will be noted that the second indictment does not

charge an offense committed at the Burger King Res-

taurant.

On appeal from the judgments of conviction on

Counts One and Two of the three-count indictment, the

court reversed such judgments. In its opinion, the court

in part said:

“*** Here three counts of an indictment

contain verbatim language and their fusion in-

App. A-4

to one and the same thing renders them insev-

erable as identifiable entries of separate and

distinct criminal charges.”

The court further said that because of the identity

of the language in such three counts the charges there-

in were not sufficiently accurate to enable the defend-

ant to plead former acquittal or conviction, should he

subsequently be charged with similar offenses (citing

Van Liew v. United States, 5 Cir., 321 F.2d 664).

The court also held that the bill of particulars was

insufficient to cure the defects in each of the three

counts, but stated at the close of its opinion:

“*** Nothing which we have said in this

opinion will, however, preclude the issuance of

a new indictment in proper form. 18 U.S.C. Sec.

3289.”

Additional facts will be stated as we discuss the

grounds urged by the defendant for reversal’ of the

judgment of conviction on Count Two of the second

indictment.

Count Two of the second indictment was not defec-

tive because it did not allege the name of the person

to whom the Federal Reserve Note was passed.

18 U.S.C. § 472 does not require that there be an

indictment to defraud one of a particular class of per-

sons or that the forged obligation be passed to one

App. A-5

of a class of particular persons. The statute, in part

here pertinent, reads:

“Whoever, with intent to defraud, passes, ut-

ters, *** any falsely made, forged, count-

erfeited, or altered obligation or other security

of the United States, shall be fined not more

than $5,000 or imprisoned not more than fif-

teen years, or both.”

Accordingly, we hold that the name of the person

to whom the forged obligation is uttered or passed is

not an essential element of the offense. and need not

be alleged or set out in the indictment.' However, it

would be better to do so, because ordinarily the defend-

ant would be entitled to the name or other identification

of such person by a bill of particulars.

Defendant contends that he can assert the defense

of double jeopardy to Counts One and Two of the second

indictment, because he was acquitted by the jury on

Count Three of the first indictment, notwithstanding

that he was convicted on Counts One and Two of the

first indictment.

Although the first indictment was fatally defective,

the bill of particulars showed that three separate and

distinct offenses were involved, and the record in the

first case shows that the Government, at the trial on

the first indictment, undertook to prove three separate

1Barbee v. United States, 5 Cir., 392 F.2d 532, 539;

Buono v. United States, D.C.S.D. N.Y., 126 F.Supp. 644, 645;

United States v. Ferra, 5 Cir., 427 F.2d 1348, 1350.

App. A-6

and distinct offenses, and that the offense charged in

Count Three of the First indictment was committed

at the Burger King Restaurant and the offenses

charged in Counts One and Two thereof were commit-

ted at other places, to wit, in Count One at Shatkin

Drugs and in Count Two at Iris Drugs.

It must also be kept in mind that the trial court held

the first indictment was good and permitted proof of

three separate and distinct offenses and instructed the

jurv to return three separate verdicts, and that three

separate verdicts were returned by the jury.

Even if the veraict on Count Three of the first indict-

ment was inconsistent with the verdicts on Counts One

and Two thereof, when viewed in the light of the hold-

ing of this court on the first appeal, such incensistency

would not have impaired the verdicts of conviction on

Counts Ore and Two or the verdict of not guilty on

Count Three.

Rational consistency between the verdicts of a jury

is not required.?

Consistency in a jury’s verdicts on separate counts

of an indictment is not required.®

2United States v. Costello, 2 Cir., 221 F.2d 668, 676; affirmed 350

; U.S. 359;

Speers v. United States, 10 Cir., 387 F.2d 698, 703, cert. denied

391 U.S. 934;

United States v. Andreadis, 2 Cir., 366 F.2d 423, 434, cert.

denied 385 U.S. 1001;

Maxfield v. United States, 10 Cir., 360 F.2d 97, 99.

3Ehrlich v. United States, 5 Cir., 238 F.2d 481, 485;

United States v. Russo, 7 Cir., 335 F.2d 299, 301;

Speers v. United St-tes, 10 Cir., 387 F.2d 698, 703, cert. denied,

391 U.S. 934;

United States v. McGee, 6 Cir., 315 F.2d 479, 481;

Dunn v. United States, 284 U.S. 390, 393.

A conviction may mot te sez zs

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jury’s verdict Stree =O oS Solem. 2 DT OE COUDt

of an indictmen: is incers:sce-- => =: Te:

him not guilty on another cour:

It is well settled law that wer = fsfense-- s-secie

his conviction of 4 CTimiina. sbecse anc secures & re

versal thereof. 2 recriz! :7 = i2t2- ::-- Soe the same

offense does not sudiect tie te Ztctls seoparcr.®

The rule apvlies in 2 case eters zs tere &- 2>ne!-

late cour: found che OTigina. inccctmes: co i2foematior

defective and the Jele--

ment.§

4Rua v. United ape > Ce. S31 146 te

Mogoll v. Un States. § Com. 133 PSs [RO TE

Lambert vr. Sanaa ed Svates. $ Coe. 22 PSS WR pet

SUnited States v. Ewell 282 TS 136 2134-733

Green v. United States 233 TS 12a 23S

Trono v. United States. 136 TS f2:° St

Stroud v. United States 25: TS if :3

See also. United States + Tazee 2™ TS amt ff where the

reversal was in 2 cclaters! rome Te wensnr for the

rule is stated in United Suze + Tex Sora ££:

466. as follows:

“* * * Correspondng = Se mt = & accost w be

given a fair tial is Se sure” ces = sicshing one

whose guilt is clear efter te =: Sees such ts

It would be a high prices meet f62r antec mr ner

every accused granted meas Se pumssmmern:

cause of any defect sicers es =e tSeversinis ecrar

in the proceedings leading = cops * * 8

United States v. Ball. 1638 T

S. ¢é3. #7147

United States v. Tateo. 377 VS 453 act

United States v. Ewell. 382 75:13 ir:

United States v. Berry.

Eubanks v. Louisiana 336 T Pg 5é4 529

Stroud v. United States. ie

id bed

App. A-8

We hold that the trial of the defendant on Counts

One and Two of the second indictment did not subject

him to double jeopardy.

On the second trial, the court did not err in refusing

to admit evidence that the owner of Iris Drugs had

failed to comply with the Florida statute designed to

inform the public of the name of the owner of a busi-

ness operated under a fictitious name. Failure of the

owner of Iris Drugs to comply with such statute in

ncwise affected the criminality of uttering and passing

to Iris Drugs a counterfeit Federal Reserve Bank Note,

and was wholly irrelevant to any issue in the case.

The evidence showed that on January 12, 1968, Harry

R. Iris was the manager of Iris Drugs; that on such

date the defendant came to the drug store; that at

that time Iris was waiting on trade at the front cash

register and the tobacco and checkout counter; that

the defendant came to such counter and asked for a

pack of cigarettes and handed Iris a ten dollar bill;

that he suspected the bill from the way it felt

and looked, but that he finally accepted it and gave

the defendant the change and a package of cigarettes;

that he waited on a few more customers and then

rushed over to the First National Bank of Hcellywood,

located diagonally across the street intersection from

the drug store; that he gave the note to Milton Billow,

at the latter’s cage; that Billow kept the note; that

the defendant resembled the man who gave him the

bill on January 12, 1968, but that two years had eiupsed

(actually two years, three months, eighteen days), and

that he could not positively identify him as the man

App. A-9

who purchased the package of cigarettes and gave him

the ten dollar bill. He further testified, however, that

he was able to identify and did identify the person

who was the defendant at the first trial as the man

who purchased the cigarettes and gave him the ten

dollar bill on January 12, 1968, and that he still had

a vivid recollection of how the defendant at the first

trial looked, as he observed him in the courtroom from

the witness stand; and that the defendant at the first

trial was the same man who was the defendant then

on trial.

We hold that there was no error in admitting the

testimony of Iris that he was able to identify the de-

fendant at the first trial as the man who purchased

the cigarettes and gave him the ten dollar bill. Iris

had been subject to cross-examination at the first trial,

and his statements were necessary as background for

his testimony and explanation that he still had a vivid

recollection of the appearance of the man who was

the defendant at the first trial.”

The testimony of Iris, and other corroborating facts

and circumstances, adequately identified the defend-

ant as the man who uttered and passed the Federal

Reserve Note to Iris.

Samuel B. Harlan testified that on January 12, 1968,

he was an assistant vice president of the First National

Bank of Hollywood; that on that date Milton Billow,

7See United States v. Schwartz, 3 Cir., 390 F.2d 1, 6;

United States v. DeSisto, 2 Cir., 329 F.2d 929, 933.

App. A-!0

who was then the head teller at the bank, called him

to his cage and showed him a Federal Reserve Note

that Billew said Iris had brought to him; that Billow

put his initials on the note in his presence; that he

was familiar with Billow’s signature, and he identified

Government Exhibit 2, on which the second count of

the indictment was based, as the Federal Reserve Note

on which Billow placed his initials on January 12, 1968;

and that after Billow placed his initials on such Fed-

eral Reserve Note it was then sent by the Bank, in

accordance with regular United States Treasury De-

partment procedures, to the United States Secret Serv-

ice, accompanied with a completed report on a form

prescribed by the United States Treasury Department.

Counsel for the defendant contend that Harlan did

not personally see Iris give the ten dollar note to Bil-

low, and that Harlan’s testimony that Billow told him

that Iris brought such note to Billow was hearsay. Of

course, it was hearsay.

Sheila Shatkin testified that her husband, Harry

Shatkin, owned the Shatkin Drug Store, operated under

the nome, “Shatkin Drugs”; that they opened the store

about 9 a.m. on January 12, 1968; that her husband

then went out to get them some coffee; that shortly

after they opened the store and before her husband

returned with the coffee, the defendant came in and

purchased a bottle of aspirin and paid for it with a

ten dollar bill and she gave him the change; that short-

ly after the defendant had left the store another cus-

tomer came in; that her husband had returned; that

he sold the other customer a two dollar item and the

App. A-I1

customer paid her for it with another ten dollar bill;

that there were no other ten dollar bills in the cash

register, except the two she had received that morning

from the defendant and the second customer; that she

told her husband the first two sales that morning had

been paid for with ten dollar bills and he ought to go

to the bank, which was a short distance away from

the drug store, and have the ten dollar bills changed

to ones or fives because she might not have enough

small bills for change during the balance of the day.

She further testified that she was looking out of the

window and saw her husband cross the street and go

into the bank.

Harlan testified further that he was called to the

walk-up window by the drive-in teller on January 12,

1968; that Harry Shatkin was there; that the teller had

two ten dollar bills which he gave to Harlan; that he

gave Shatkin a receipt therefor; that he took the bills

to the head teller, Billow, and had him initial them;

that then, in accordance with standard Treasury De-

partment procedure, the bills were sent to the United

States Secret Service, accompanied by a completed

report with respect to such bills on a Treasury Denart-

ment forrn.

Iris testified that it was about 10 am. when he so!d

the defendant the package of cigarettes; that he sus-

pected the bill was counterfeit; that after he had wait-

ed on a few more customers, he rushed over ‘to the

bank and took the bill he had received from the defend-

ant for the cigarettes to Billow at his head teller’s cage,

asked him if it was good, and turned it over to Billow.

App. A-!2

While it is obvious that Biliow, the drive-in teller

at the walk-up window, and Harlan thought all three

bills were counterfeit, else they would not have fol-

lowed the procedure prescribed by the United States

Treasury Department for banks to follow wien they

suspected they had received counterfeit United States

obligations, the trial court refused to allow them to

so testify when objection thereto was raised by counsel

for the defendant.

It is also obvious that the incident when Billow called

Harlan to his cage and initialed one ten dollar Federal

Reserve Bank Note and gave it to Harlan occurred

at one time, and the incident when Harlan took the

two Federal Reserve Bank Notes which he had

received from Shatki:. to Billow and had Billow initial

them occurred at a different time, probably prior to

the time Billow called Harlan to the cage and initialed

one note and gave it to Harlan.

In view of those facts and the fact that Billow re-

ceived only the one note, and other surrounding facts

and circumstances, it is a reasonable inference that

the single note Billow initialed and turned over to Har-

lan was the note he received from Iris.

Hence, we hold that the Government’s Exhibit 2 was

properly identified as the note charged in the second

count of the second indictment and was properly re-

ceived in evidence.

The testimony of Joseph M. Capasso, called as a

witness for the Government, established these facts:

ree

App. A-13

On January 29, 1970, Capasso was a Special Agent

for the United States Secret Service, assigned to New

York City. On that date, he went to the defendant’s

home in Astoria, New York, for the purpose of arrest-

i. g him for the offenses charged in the second indict-

) ment. Capasso told the defendant his name, that he

) was an Agent of the United States Secret Service, and

furnished him with identification. Capasso told the de-

fendant that he was under arrest and informed him

of the charges against him, and advised the defend-

ant that “before we asked him any questions, that he

would have the right to remain silent and that anything

that he said could be used against him, and that he

had the right to an attorney and that he could stop

the questioning at an, time and have an attorney pres-

ent,” and that “if he could not afford an attorney, that

the Court would provide an attorney for him.”

Such testimony by Capasso stands uncontradicted

in the record.

Capasso then transported the defendant to the offices

of the Special Agents of the United States Secret Serv-

ice at 90 Church Street, New York City. On arrival

at such offices, defendant was fingerprinted and a pho-

tograph of him was taken.

Capasso then took defendant to the prisoner’s search

room. He testified, “That is the room we normally

} take people in after we have arrested them for ques-

tioning.” He told the defendant “ We have a form

? here, it is a standard form. If you want to talk to me

about the case you may. *** I will read you this

App. A-14

form and then you read it and if you want to speak,

well, fine. Sign it. If not, well, don’t sign it.”

The form was SS Form No. 1737. It is set forth, as

it read when finally completed, in Note 8 hereto.®

6“SS Form No. 1737

(Revised 10-17-67)

“WARNING AND CONSENT TO SPEAK

“You must understand your rights before we ask you any

questions.

“You have the right to remain silent.

“Anything you say can be used against you in court, or other

proceedings.

“You have the right to talk to a lawyer for advice before we

question you and to have him with you during questioning.

“If vou cannot afford a lawyer and want one, a lawyer will

be appointed for you. If you decide to answer questions now

without a lawyer present, you will still have the right to stop

the questioning at any time. You also have the right to stop

the questioning at any time until you talk to a lawyer.

“WAIVER OF RIGHTS

“I have read this statement of my rights and it has been

read to me, and I understand what my rights are. I hereby

voluntarily and intentionally waive my rights and I am willing

to make a statement and answer questions. I do not want a

lawyer. I understand and know what I am doing. No promises or

threats have been made to me and no pressure or coercion of

any kind has been used against me.

“/s/ John E. Panzavecchia

Signature

**1-29-70 8:50 AM

Date and Time

“CERTIFICATION

“I HEREBY CERTIFY thaf® the foregoing Warning and

Waiver of Rights were read by me to the above signatory, and

that he aiso read it and has affixed his signature hereto in my

presence.

*‘/s/ Joseph M. Capasso

Signature — Agent

“‘/s/ James L. Christian

Witness

‘*/s/ Thomas M. Healy”

Witness

App. A-!5

Capasso read the form to the defendant and the de-

fendant then read it. Capasso then asked the defendant

if he understood it and the defendant said he did. He

then signed the Waiver of Rights in the form. Capasso

signed the Certification and Agents Christian and Hea-

ly signed it as witnesses. (See Note 8, supra.)

The completed form was marked as Government Ex-

hibit 5 and admitted into evidence over the objection

of counsel for the defendant, on the ground that it was

not a voluntary waiver.

Capasso testified that after the defendant signed the

waiver he had a conversation with him; that he asked

the defendant “what were the problems he had in Mia-

mi”; that the defendant replied that he was accused

of passing three counterfeit notes; that he asked the

defendant if he knew they were counterfeit notes; that

the defendart replied he was “riding around in a car

with a person” who owed him some money for some

merchandise, and this person gave him 18 ten dollar

Federal Reserve Notes; that as they were driving a-

round he told such ‘person to stop, that he wanted to

buy a package of cigarettes, and that he purchased

a package of cigarettes, using one of the ten dollar

notes to pay for it; that when he returned to the car

such person (we use the term “such person” because

the defendant refused to name or identify him) said,

“See how easy it is to pass one of these notes.” The

defendant stated he did not at that time know the notes

were counterfeit, but that when they stopped the next

time such person told him the notes were counterfeit,

and that because he owed such person a favor he a-

App. A-16

greed to assist him in passing them; that the defendant

further stated that he went into another store, which

he believed was a Whalen’s Drug Store, and passed

another of the counterfeit notes; and that he then knew

the notes were counterfeit; that thereafter he went into

another Whalen’s Drug Store, where he attempted to

pass another counterfeit note; that the clerk became

suspicious and he fled «he store, leaving the note there;

that he gave the remaining notes to the person with

whom he was riding around and from whom he had

received them. As stated above, the defendant refused

to name, describe, or to otherwise identify such person.

Counsel for the defendant moved to strike all of the

testimony relative to the defendant’s statement, on the

ground that the statement was not voluntarity made.

The motion was denied.

The defendant was fully warned with respect to all

of his rights, both verbally when he was first arrested

and shortly thereefter when he was taken to the search

room at the Special Agents’ offices, and before

he signed the waiver, he was fully warned again as

to all of his rights by the written statement, which

was read to him and which he read and said he under-

stood. He was told by Capasso if he wanted to talk

to him to sign the w iver, and if he did not want ‘to

talk not to sign it.

There was no “lengthy interrogation or incommuni-

cado incarceration” before the oral statement was

made by the defendant, and he made no written state-

ment.

TRON NTN

Pree ae

App. A-17

Capasso testified that he did not at any time coerce,

induce, or entice the defendant, or make any promise

or threats to him to get him to make such statement.

The defendant did not deny the evidence of Capasso

nor testify that the statement he gave was not volun-

tarily made. We think the instant case is clearly dis-

tinguishable from Miranda v. Arizona, 384 U.S. 436.

It is true that Capasso and the defendant stopped

for each of them to have a cup of coffee. The record

does not show when they stopped for coffee, but from

the parts of the recor: that we have, we think it may

reasonably be inferred that it was while they were

on their way from the defenaant’s home to the Secret

Service Agents’ office. Capasso jokingly said to defend-

ant, “Weil, why don’t you give me a statement, so

I can go down to Miami. I could use a vacation.” The

defendant did not testify that he took Capasso’s remark

seriously or that it in anywise caused him to make

the statement. As a matter of fact, it does not seem

te us that a remark of that kind could induce an un-

willing defendant to wa.ve kis rights.

We conclude the evidence fully justified the conclu-

sion of the trial court that the statement was made

voluntarily by the defendant, after he had been fully

apprised of his rights.

Accordingly, the judgment is affirmed.

App. A-18

JUDGMENT BELOW IN CASE No. 30044

(TITLE OMITTED)

Appeal from the United States District Court for the

Southern District of Florida

Before BROWN, Chief Judge, and PHILLIPS, *

and INGRAHAM, Circuit Judges.

This cause came on to be heard on the transcript of the

record from the United Stares District Court for the Southern

DISTRICT of FLORIDA, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here ordered

and adjudged by this Court that the iudgment of the said

District Court in this cause be, and the same is hereby,

affirmed.

May 28, 1971

Issued as Mandate: July 13, 1971

*Of the Tenth Circuit, sitting by designation.

APPENDIX B

ORDER ON PETITION FOR SE-feriy

-

—

_-

LITLE Owortsr

Appeal from the United States Dustrat Caurt for the

Southern District of Fhords

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| eri >: ~m,.; Cae ae — —

UN PE WN PUK SESELS wy

Before BROWN C= 2: Jena --- De >

INGRAHAM C--_- judges.

PER CURIAM:

IT IS ORDERED --= —« -2-- -- “Ir "Emeo- ns + ies

in the above entities --- ".mcere: co:

is hereby denied,

Of the Tenth Cire tT, Sifting Sw ses oS? St.

ERT Tr Tne

ere

APPENDIX C

OPINION BELOW IN CASE NO. 27322

(TITLE OMITTED)

Appeal from the United States District Court for the

Southern District of Florida

(January 13, i970)

Before BROWN, Chief Judge, and JONES and

CARSW?:LL, Circuit Judges.

CARSWELL, Circuit Judge: As a mathematical ax-

iom Euclid postulated some time ago that quantities

equal to the same quantity are equal to each other.

Here three counts of an indictment contain verbatim

language and their fusion into one and the same thing

renders them inseverabie as identifiable entries of

separate and distinct criminal charges.

App. C-2

As in the case of Van Liew v. United States, 321

F. 2d 664 (1963), we are thus presented with a situation

in which the appellant has been tried under a faulty

indictment and our decision on this question precludes

the necessity of considering other issues raised by ap-

pellant which are not likely to arise in the event of

re-indictment or retrial.

The appellant, Panzavecchia, was indicted in three

counts charging violations of 18 U.S.C. $472.' The three

counts of the indictment were identically worded, the

only distinguishing characteristic being the consecu-

tive numbers of the counts. The counts read:

“That on or about January 12, 1968, at Hol-

lywood, in Broward County, in the Southern

District of Florida, the defendant, John E

manuel Panzavecchia with intent to defr:

did pass and utter a certain counterfeit

Federal Reserve Note (Series 1950 E) «

on the Federal Reserve Bank of San Fran

California, bearing Serial No. L 42853082

and which the defendant knew to be counter-

feit, in violation of Title 18, United States Code,

Section 472.

ax .

ee a eta oad

‘Whoever, with intent to defraud, passes, utters, publishes, or

sells, or attempts to pass, utter, publish, or sell, or with like

intent brings into the United States or keeps ix possession

or conceals any falsely made, forged, counterfeited, or altered

obligation or other security of the United States, shall be fined

not more than $5,000 or imprisoned not more than fifteen

years, or both. June 25, 1948, c. 645, 62 Stat. 705.

| App. C-3

Appellant was subsequertly arraigned and pled not

guilty to each count of the indictment. Appellant there-

after filed a Motion to Quash the Indictment, a Motion

to Produce and a Motion for Bill of Particulars. The

Motion to Produce was granted and the motion for Bill

of Particulars was granted in part and denied in part.

The Motion to Quash was denied after submission of

written memoranda <cirected to the sufficiency of the

indictment to chaige three separate offenses.

The case was tried to a jury. The Government pre-

sented evidence of three separate utterings occurring

at different places and different times of the same

~ day ‘The jury returned verdicts of guilty as to Counts

One and Two and not guilty as to Count Three of the

indictment. The District Court entered a judgment. of

acquittal as to Count Three and subsequently denied

defense motions for judgment of acquittal, new trial

and arrest of judgment as to Counts One and Two.

In regard to the sufficiency of indictments the rule

is well settled that an indictment must set forth the

offense with sufficient clarity and certainty to apprise

the accused of the crime with which he is charged.

United States v. Mills, 22 U.S. 138 (1833); Russell v.

United States, 369 U.S. 749 (1962); Van Liew v. United

States, supra at 668. The applicable criteria have been

emphasized in Russell v. United States, supra at 763:

“In a number of cases the Court has em-

phasij~ed two of the protections which an indict-

ment is intended to guarantee, reflected by two

of the criteria by which the sufficiency of an in-

App. C-4

dictment is to be measured. These criteria are,

first, whether the indictment ‘contains the ele-

ments of the offense intended to be charged,

“and sufficiently apprises the defendant of

what he must be prepared to meet’’ and,

secondly, ‘‘in case any ether proceedings are

taken against him for a similar offense, wheth-

er the record shows with accuracy to what ex-

tent he may plead a former acquittal or con-

viction.”’ Cochran and Sayre wv. United States,

157 U. S. 286, 290; Rosen v. United States, 161

U. S. 29, 34” Hagner v. United States, 285 U. S.

427, 451. See Potter v. United States, 155 U.S.

438, 455; Bartell v. United States, 227 U. S. 427,

431; Berger v. United States, 295 U. S. 78, 82;

United States v. Debrow, 346 U. S. 374, 377-378.”

In the present case the indictment as drawn contra-

venes the second of these criteria.

The Government Lere laments that the only possible

way to avoid the present situation is to resort to the

Grand Jiiry minutes to determine whether the evidence

presented to the Grand Jury is the same evidence pre-

sented at trial. This argument evidences a misconcep-

tion of the appellant’s attack upon the indictment and

the basis of our decision. The Government also argues

that the granting of a Bill of Particulars cured any

questions appellant might have. As stated in Van Liew

v. United States, supra at 670, the Government has

confused the defendant’s constitutional right to know

what offense is charged with his need to know the

evidentiary details establishing the facts of such of-

OE meen on

App. C-5

fense. As to the latter, the remedy lies in the Motion

of Bill of Particulars, F.R.Crim.P. 7(f).

Unlike Van Liew v. United States, supra, we are

not concerned with the precise nature of the violations

alleged in each count under a statute charging a vari-

ety of unknown actions. Nor are we cencerned with

a situation involving a multiplicitous indictment where-

in each of the counts in effect refers to only one offense,

as was the situation in Calvaresi v. United States, 216

F’. 2d 891, 904 (10th Cir. 1954). We are simply confront-

ed with the question of which count relates to which

offense.

In the present indictment, any of the three counts

standing by itself, if applied to any of the three singular

instances of uttering sought to be proved by the Govern-

ment, would be legally sufficient to charge a single

violation of 18 U.S.C. §472. It is only when a defendant

stands charged with two or more identical counts that

it becomes critical that each offense under 18 U.S.C.

$472 be distinguished, for the protection of the defend-

ant, by avoiding any possible confusion as to the in-

tentions of the Grand Jury.

While a Bill of Particulars can solve evidentiary

problems it cannot unlock the Grand Jury’s mind and

cure a defective indictment. See Van Liew v. United

States, supra at 671-672. The present indictment fails

to reveal which counts the Grand Jury intended to

apply to which offenses. Consequently any future ple-s

of former acquittal or conviction are imperiled.

App. C-6

The technicality of our decision in this matter is

obviously pointed up by the fact that a judgment of

conviction or acquittal on all counts would have ob-

viated the present dilemma.

The judgments of conviction on Counts One and Two

of the indictment are reversed and the case remanded

with instructions to dismiss the indictment. Nothing

which we have said in this opinion will, however, pre-

clude the issuance of a new indictment in proper form.

18 U.S.C. $3289.

REVERSED and REMANDED.

OE CO WME WF aE

APPENDIX D

JUDGMENT OF ACQUITTAL and JUDGMENT of

CONVICTION and SENTENCE in CASE No. 68-92

(TITLE OMITTED)

JUDGMENT OF ACQUITTAL (as to Count Three)

(Omitting formal parts)

JUDGMENT OF ACQUITTAL

The above - entitled cause having come on for trial

and the Jury having returned a Verdict of Nat Guilty.

Judgment of Acquittal is entered herein as to the Defendant,

JOHN EMANUEL PANZAVECCHIA

on Count Three

It being furthe:

ORDERED AND ADJUDGED that the Defendant be dis-

charged to go hence without day for return and exonerated

of bond, if any, as to the Count hereinabove specified only,

otherwise to remain in full force and effect.

DONE AND ORDERED at Miami, Florida this 17th day

‘of October, A. D., 1968

/S/ C. CLYDE ATKINS

UNITED STATES DISTRICT JUDGE

JUDGMENT OF CONVICTION AND SENTENCE

(as to Counts one and two)

(Omitting formal parts)

On this 20th day of December, 1968 came the attorney

for the government and the defendant appeared in person and

by counse!, Leonard Moriber, Esq.

It is ADJUDGED that the defendant upon his plea of

Not Guilty and ¢ Verdict of Guilty by the Jury

has been convicted of thesoffense of did pass and utter cer-

tain counterfeit notes, which the Defendant then knew to be

counterfeit in violation of Title 18, United States Code,

Section 472,

as charged in counts 1 and 2 of the

Indictment and the court having asked the defendant whether

he has anything to say why judgment should not be pronounc-

ed, and no sufficent cause to the contrary being shown or

appearing to the Court,

It is ADJUDGED that the defendant is guilty as charg-

ed and convicted.

App. D-3

It is ADJUDGED that the defendant is hereby committ-

ed to the custody of the ATTORNEY GENERAL or his auth-

orized representative for imprisonment for a period of THREE

(3) YEARS on count one and THREE (3) YEARS on count

two, or until otherwise discharged by due process of law.

It is further ORDERED that sentence of confinement

on count two is to run concurrently with sentence of con-

finement imposed on count one.

It being further ORDERED that execution of sentence

of confinement herein above be and the same is hereby de-

ferred until December 26, 1968, at 9 A.M. at which time the

Defendant shall surrender himself to the U. S. Marshal ot

Miami, Florida.

It is ORDERED that the Clerk deliver a certified copy

of this judgment and commitment to the United States Mar-

shall or other qualified officer and that the copy serve as

the commitment of the defendant.

/S/ C. CLYDE’ ATKINS

C. CLYDE ATKINS

UNITED STATES DISTRICT JUDGE

APPENDIX E

INDICTMENT IM CASE Me. 68 - $2

Title Ormwec

The Grand Jury Charses;

COUNT ONE

That on or about Jenucrs 12. 1358 2+ He vwoor, in

Broward County, in the Scurser- Ds~-- x Foorids, the

defendant,

JOHN EMANUEL PANZAav Ecce «

with intent to defraud, did PCSS omc se = tecDIn counter.

feit obligation of the United Stores. -c w+ Cme counterfeit

$10.00 Federal Reserve Nate Series 135° = srown on the

Federal Reserve bank of Sen Frene'se= Cz toma, Dearing

Serial No. L 42853082 D, and wnic- ee setensam tnen knew

to be counterfeit, in violation of T+ 2 "2. United Stotes

Code, Section 472. :

COUNT Ti

That on or about Jenuerw 12 1948. = “iD 'vwood, in

Broward County in the Southern Dismi= 3: Fiorida, the

defendant,

JOHN Euamer Suwa VECCHIA

with intent to defraud, did pess snd ute = ces nm counter-

feit obligation of the United Stctes, ts wit Cre Sounterieit

App. E-2

$10.00 Federal Reserve Note (Series 1950 E) drawn on the

Federal Reserve bank of San Francisco, California, bearing

Serial No. L 42853082 D, and which the defendant then knew

to be counterfiet, in violation of Title 18, United States

Code, Section 472.

COUNT THREE

That on or about January 12, 968, at Hollywood, in

Broward County, in the Southern District of Florida, the

defendant,

JOHN EMANUEL PANZAVECCHIA

with intent to defraud, did pass and utter o certain counter-

feit obligation of the United States, to wit: One counterfeit

$10.00 Federal Reserve Note (Series 1950 E) drawn on the

Federal Reserve oank of San Francisco, California, bearing

Serial No. L 42853082 D, and which the defendant then knew

to be counterfeit, in violation of Title 18, United States

Code, Section 472.

A TRUE BILL

FOREMAN

-y

WILLIAM A. MEADOWS, JR.

UNITED STATES ATTORNEY

APPENDIX F

INDICTMENT IN CASE NO. 70 - 23

(Title Omitted)

The Grand Jury Charges:

COUNT ONE

That on or about January 12, 1968, at Shatkin Drugs,

in Hollywood, Broward County, in the Southern District of

Fiorida

JOHN EMANUEL PANZAVECCHIA.

with intent to defraud, did pass and utter a certain counter-

feit obligation of the United States, to wit: One counterfeit

$10.00 Federal Reserve Note (Series 1950 E) drawn on the

Federal Reserve Bank of San Francisco, California, bearing

Serial No. L 42853082 D, and which the defendant then knew

to be counterfeit, in violation of Title 18, United States

Code, Section 472.

- COUNT TWO

That on or about January 12, 1968, at Iris Drugs, in

Hollywood, Broward County, in the Southern District af

Florida

JOHN EMANUEL PANZAVECCHIA

with intent to defraud, did pass and utter a certain counter-

App. F-2

feit obligation of the United States, to wit: One counterfeit

$10.00 Federal Reserve Note (Series 1950 E) drawn on the

Federal Reserve Bank of San Francisco, California, bearing

Serial No. L 42853082 D, and which the defendant then knew

to be counterfeit, in violation of Title 18, United States

Code, Section 472.

A TRUE BILL.

FOREMAN

ROBERT W. RUST

UNITED STATES ATTORNEY

By

William A. Daniels, Jr.

Assitant U.S. Attorney