# Appendix — Panzavecchia v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0033%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1971 - **Citation:** 404 U.S. 966 ## Text 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 i a Te pet § 4 SSS. S'S wIOUES tne - 2 ‘ Bar . : - ? TIV@A*s2 CRA =@L42°2e «2 2-es —- —— ee -~-—- - ——— 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 = = -<- > | 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