United States v. Chiarella

plain precisely cynically basis of affidavit for he made admitted as much during must do its course of regard. in the trial in court conclusion Dubil, however, “appli- below. so. was the may cant” and it be that bear he should said, the jusp basis As we have the burden of Hubilc’s fraud. This is a attorney fees are be awarded matter which by be considered clearly. it be be Otherwise must stated upon court remand. duty reviewing court comes There is no showing duty is not the of that Shores award aside. It set the had anything do to with with the of reviewing to interfere court application power discretionary con the Patent Office exercise of the or anywise by Congress connected with Hubik’s fraud. fided to the trial courts prac He awas proper mere licensee attorney cases ex authorized award fees process tice the of patent cept of a limited there is abuse discretion where area in Angeles. and near caprice Los amounting If he was or erroneous con part connected ception proceedings the trial of law on the Patent Office or with fraud, amount allow ob judge.8 to be But since may ed, justly vious against be liable well those defendants held attorney taxed, fees if the basis of the al it is be is to be whom considered upon lowance is remand, to be fraud by upon again we the Patent the court below Office. This also stating is matter be not refrain con think we should by upon sidered the court below allowed remand. that the amount fees trial court, assuming the action Paragraph I the judgment is affirmed. infringement and com trade-mark unfair II, Paragraphs III and IV are reversed. petition properly court, before the was Paragraph V is Paragraph affirmed. VI is days excessive. Not more than nine were Paragraph affirmed. VII is vacated. The expended during trial. If we assume cause remanded further considera- spent equal that an of time amount opinion. tion in accordance with this depositions, taking plant examina preparation, tions and in we find that the attorneys compensated

winning would be

under the court’s order at a rate excess day. patent involved was $800 complete simple one. After a examination of the record think we our estimate expended, anything, overgener if

time assuming But not, ous. it were a fee of UNITED STATES CHIARELLA et al. $15,000, patent based infringe No. Docket 21741. alone, be ment action so excessive that it sustained. Appeals United States Court of Second Circuit. As to the defendants whom the Argued Oct. unreasonable fees be taxed support find the record for that Decided Oct. Finding portion of of Fact XIV which representations false states that made Office, any proof Dubil to the Patent support that would a conclusion that Dubil

knew that the matter contained in the affi-

davit was false. It is clear that Hubik he, Hubik,

knew that had made a false Paper Cup Spartan Co.,

8. See Dixie Co. v. Cir., Container Blanc v. Tool Mfg. Co., 174 F.2d certiorari F.2d certiorari denied 335 U.S. denied 338 U.S. 69 S.Ct. L.Ed. Kaplan, City, V.

Abraham York New for Chiarella. Merker, City, M.

Mordecai New for Paully, City, David New York Stancin. J. Myles Lane, Pietraniello. New York J. City, appellee. Judge, agents (Pandolfo had been mean- HAND, two Chief L. Before charge), while found CLARK, Judges. arrested on another Circuit SWAN them satisfactory and Seidler York, set the 24th out to where on New HAND, Judge. Chief L. at their hotel Chiarella came visit them from a conviction appeals These are arranged Manhattan. On 25th counts four counterfeiting; for delivery of the at the hotel for indictment; possess receiving, single in a $60,000; but, place agreed, at the time and sell, and in conclu ing, selling trying fearing trap, had Palmisano One conspiracy count. the inevitable sion delivery. However, make a sham his sus- Palmisano, appellants, original four picions allayed agreed were soon he to and appeal, of his dismissal consented has delivery apartment make a true at his only three: there are left that so Queens County, York, New whither all questions The Pietraniello. Stancin four then went in Palmisano’s car. At supposed part upon most the turn for raised five o’clock on that afternoon Pietraniello trial, although the in the course errors $200,000 bags, came with in two argue that and Stancin Pietraniello opened money which were counted. support ver to enough evidence stayed apart- Pietraniello and Seidler the any nec it is against In event them. dict ment, counterfeits, guarding the Chi- while alleged understanding of the essary for an arella, Palmisano and went back might jury the facts as the state errors get $60,000. New York to While testimony, found them they were gone Pietraniello told Seidler Pan the mouths of principally from came $100,000 remaining be would deliv- dolfo, who testified confederate payment. ered at the time of the We Seidler, informer, and prosecution, of pause dispose the outset to argu- at agents. Carli, secret service Gopadze and ment enough that that was not evidence to An December, 1949, Los Pandolfo in In support against True, a verdict Pietraniello. he knew to Seidler that suggested geles (cid:127)he 'he swore that did not know money got, be counterfeit where n bagscontained, but his remaining with Seid- information to secret passed on this Seidler ler guard bags their after contents Treasury, who told agents of the service opened had been talk with Seidler He negotiation. go him to on with just mentioned, were ample proof of his talks thereupon had a number guilty knowledge, implication and his having that he said with Pandolfo who venture, jury if the to believe chose finally money, but who getting the trouble testimony. It is not necessary to discuss year made contact January 9th of this the evidence Stancin. There remain Stancin, appellant, who told with only our consideration therefore Chiarella, in one,, he New knew objections taken during the course t'he and able willing to sell coun might be trial. money. day same Stancin On the terfeit telephoned to Chiarella Pandolfo Chiarella encourage gave them some York who New day they next both went ment, on the that, complaint first Chiarella’s apartment where were not to Seidler’s judge kept prosecution’s although agents, Gopad himself, two but the Seidler out of the they witnesses courtroom while Carli, representing themselves ze and testifying, he were not refused to tell them them with talked Several confederates. with discuss one an they telephone, telling him on the Chiarella find, far as we So can other. $300,000 twenty dollar in ten and wanted arisen, universally has never 'held he bills, answered that to which Chiarella the exclusion from the that even courtroom samples, as did. he soon send on Seidler, who have not testified dis- of witnesses arrived, these When sale, uttered to tiations which resulted in an instruction cretionary.1 *Afortiori persuade present they might while out of those the evidence not to discuss them Chiarella; safely deal admis- discretionary. and was is also courtroom incidentally fact sible such. The judge’s objection to Next is disclosed another crime not make it did jurors far-fetched, if dangers appear to not us objections Next are two ex to the wrong, imaginary; it hut if we are amination of Pandolfo’s who had suggested judge has never been that represented upon prose him in California has permit practice; must testimony cution for another crime. The always he must it. been whether forbid Pandolfo, relevant. like was all others who Moreover, at dis is most a matter of it against turn confederates, their former cretion. suspicion under the of trying to him save by making self a case them. It was objection The is to a next comment proper to bring out what inducements the judge of the critical of Palmisano’s conduct prosecution offered him had and that agreed Although in the courtroom. it subject attorney’s testimony. of the The objection at the the trial outset of that the particular objections unimportant, once all, of one of the accused should stand general relevancy inconceivable that the stricture decided. anyone should have done harm Pal but misano; and, said, appeal his has as objection part The next is to a dismissed. been redirect examination of Pandolfo. On objection The in next arose the fol his cross-examination the brought defence Carli, way. agent, lowing Treasury was out that had heard Pandolfo from Stancin testifying negotiations aof ring owned a woman in California in between Chiarella York Stan New and easy steal, which would be that and cin, Pandolfo, Gopadze Seidler, in Los had project broached the The Seidler. Angeles, purchase for the of the bills. After objection is that the was then over, talk Stancin in order to as particulars allowed to ask of Pandolfo’s acquainted that he was sure others well talk with Stancin. On theory an ac might Chiarella and that they with there may complain cused that details of an occur him, rely upon fore told them that Chiarella rence developed were on redirect which he jail together.” and he had a term “served brought into cross, case arewe part The very nego- statement was advised. Cir., States, 1. Hood v. 8 23 United F.2d 408; 163 F.2d United States v. 472, 475; States, Tinkoff v. United 7 Cir., Cases, 2 179 Five F.2d 522. 868, 879; Cir., 86 F.2d Morrow v. Unit 2. 165 U.S. 17 41 L.Ed. 624. Cir., States, 656; ed 7 101 F.2d Connelly, Cir., C.C., F.2d affirmed, Cir., Twachtman v. 106 103 Fed. 501, 507; States, 10 Oliver v. United 107 Fed. 753. d Cir., 245, 250; 121 F.2 Mitchell v. Cir., 4. 84 F.2d Cir., States, 10 United 553; 126 F.2d D.C., F.Supp. 479, Kaufman v. United him, agree jury need plaus objection is more The next very which in the case at did bar talk in of -the telling Seidler was ible. -charge. explicitly his met Chiarella hotel when New Los on from come had others I”; was, “Point So-much Chiarella’s consequence talk Angeles. The prose II” is that the his “Point later said, bills were that the we have jury as testi cutor in his address to the read Queens apartment at Chiarella’s delivered paper mony which he held -hotel; Seidler but County paper rec stenographic That hand. some talk testified that testimony; more ord actual dope” between “about the hotel need be said. de To this the Gopadze Palmisano. unsuccessfully, and Seidler objected fence appellants Point III is that talk gq -to into details. was allowed entrapped into the commission erroneous; was irrelevant admission it.s within v. crime the doctrine Sorrells' ges part of “res -that it was the excuse first Although United States.6 damage reli which tae” serves to .show Supreme decision of the which Court brings into ance term absurd entrapment reversal, resulted in a there had Nevertheless, invades. thinking Appeal— been earlier decisions Courts of we do think the error demands first, being found, so far as we have testimony was that reversal. Seidler’s Woo doc Wai United States7—and told' Palmisano he would trine recognized had been much earlier.8 “bring opium” sale Pa'l some is true that t'he is not definite as one law misano that he to be would like “the exclu might provocation as wish to what consti buyer, only buyer heroin,” sive “entrapment,” tutes we an -but to state tried (sic). part Ghiarella’s talk upshot Becker,9 of it in United States v. price he corrected the of heroin to then, and we revert to that now. saidWe kilo, $9,000 which given a Palmisano- had page 1008, 62 F.2d at that it not a de $6,000 kilo. That as a did if the already fence accused engaged indicate that was familiar course -Chiarella (1) in “an existing course similar crimin trade, although with this illicit it did conduct”; al (2) a “already had formed proposed part indicate that he to take design to commit the crime or similar However, Gopadze’s proposal.. appears it crimes”; (3) or willing “as to do so substantially to incredible this could us by ready complaisance.”. evinced In the .against have turned s-cale him. We bar, although -caseat “existing course of suppose that, to although should have shown, (cid:127)similar criminal conduct” it jury might have doubted the opened subject was not Seidler who to who those fixed the sale witnesses. Pandolfo, Seidler, but to when Pandolfo their doubts were al approached Pandolfo him with the informa layed one of because these witnesses added money that he tion where knew counterfeit acquaintance that- Chiarella an sh.owed got. reject Seidler did not indeed peddling Unless narcotics. trials are proposal, for this he at once it to disclosed logical to mere exercises in perfec become authorities, proceed; who told him to tion, lapse ought such to be disregarded. certainly but “entrapped.” Pandolfo Pandolfo, Next as to Stancin. According Last is to to telling Stancin was in “apparently the room when Pandolfo that Seidler was remark told enough Seidler on the It to- observe that he had truth.” overstep universally been unable to power the bills get which he had this did for; hoped express opinion overhearing which to a Stancin accorded facts, provided asked Pandolfo plain happened,” he makes what “had it on the 604,15 L.Ed. 413. Grimm United S.Ct. U.S. U.S. 470, 39 L.Ed. Cir., 223 F. 7. 9 9. 2 62 F.2d 1007. liability sion as that he “had made to what constituted criminal answered Pandolfo when another to “un- “in or abet was that order to aid because himself fool” necessary de he had that a whi-ch commit a crime it “notes” deliver” able to answer himself with fendant ‘in some sort associate volunteered promised, Stancin ** venture, participate in it as that he “someone New he knew about, bring Again something this was that he wishes to get results.” might make it Next as that he seek -his action to suc Stancin. “entrapment” of not an ”11 much more the ceed.’ To do' that involves broached Pandolfo Chiarclia. When done,” merely “causing act to be 'he asked him on the 9th proposal length any pointed counter- we United States at time to see whether question by beg Falcone.12 Unless available, Pandolfo to call v. he told feits word, “cause,” accepted sugges- into the lim day importing when he the next “abet,” “procure,” by sending itations of “aid” or on the sam- and followed it tion existing “causing an to be acts ples. not show an act done” covers If did necessary steps are “design” “similar crimes” to which to commit events crime; equally most result in the true charged, certainly “evinced” the and that is tanto, pro though steps “ready compliance” we limit the those conceivable. provocation likely which the actor of an knows to be so to re as a absurd dress sult; for, crime person to embark with that limitation there innocent independently already pre- many he was not situations which one crime, True, yet “abet,” “cause” the disposed. Last as to Pietraniello. “aid” “procure” appear got whom he its does not commission. and, said, bags, he said that he as we have Until added second sentence was to § was innocent to their How- contents. always 2 in the first sentence had been ever, there is not the faintest intimation that same; substantially the and the Reviser’s inveigled he was into the venture says note second sentence that it was prosecution. permit many “added to the deletion from throughout sections the revision of such ”; that, procures’ ‘causes or phrases as already We have considered all the revised,” the “as section means to punish, objections which affect the general conduct only another, anyone one not who abets -but which, of the trial of arrange under the doing act”, “who the causes of which an opening, ment made at the also was would be a if he crime did it himself. advantage. shall, entitled take We there Therefore, continues, the note “It removes fore, only consider those which he raised puts all doubt that one who in motion or independently. important The most the illegal enterprise assists the but causes the charge of judge declaring the what were the indispensibie commission of an of element jury facts which the must find in order to agent the offense an innocent or instru- bring in a verdict him. tie told them mentality, guilty principal they might so, that do if the “crime or * * though intentionally he refrained from * the charged crimes resulted from his” constituting direct act completed of- actions”; “words and person would be a fense.” Even without the note we should principal, if “he an causes act done to be very have found it hard to believe that the directly performed which if by him would second sentence really so drastical- offense”; be intended he concluded quot ly enlarge liability, ing criminal though to them the whole of 2 of the Criminal § 10 be must conceded ipsissimis Code that difficult to verbis. see To this Stancin excepted. meant, Before what it if just it did not mean amendment of 2 in that. § Moreover, the last and an expres- note does not help authoritative very much 919; 10. § Title 18 Ed. U.8.C.A. International Brotherhood v. N. B., Cir., 34, 38, 2 L. 181 F.2d R. Nye & Niessen v. United 587; U.S. 109 F.2d affirmed 311 L. U.S. 61 S.Ct. L.Ed. except far confusion, complains in so because He next up to clear al prosecution to contem- cross-examination general not may appear as it already lowed to been dis ask whether he had not plate a restatement more than honorably cogency discharged Army and spite of the from the existing Yet law. made to been trial jail. be had sentenced to Before the that can argument of the verbal agreed prosecution ourselves it was contrary, bring we cannot in- bring theory language baffling out these facts —on the be sure that such conse- revolutionary credibility they did not affect Stancin’s to have so tended any shall -assume —unless “evidence is that he was quence. rate we introduced At Army we in charge question which as a veteran.” The argument trial, came up twice quoted during first above erroneous. mother; sec examination Stancin’s however, not, follow that It does ond, on his own. On the first occasion the Stancin; reversed as judgment must be prosecution first his mother whether asked error, if think that in fact we Army her son had been in the to which she prejudiced error, have could been; that he answered had and followed prosecution did It is true that him. by asking this he whether had not been dis connection prove other that he honorably discharged. certainly It was receipt sale of the bills possession, purpose agreement that the dis to Chiarella calls through his charge admissible, and sentence were to be 10th; and it is also true 9th and the if it was the brought out first on the was that that his own the evidence that Stancin had about sale Chiarella call asked he Army. That have been meaningless. merely on the jewelry,- second The question discharge was there Moreover, bore greeted him. Chiarella agreement, fore a breach of the merely However, it seems calls. version as a presumably damaging. jury that, if the believed incredible to us However, the second occasion was different. calls, they this version In cross-examination Stancin had volun the bills to “caused” found that Stancin teered statement that he had been in received, sold. If the error possessed or 1947; Army from 1941 prosecu jury Stancin, because the damaged it was put then tion whether he had not telephone calls to that his believed received a discharge. dishonorable That counterfeiting, they not about though permissible agreement, under the introduction Pandolfo and served as an any harm done on the first occasion became negotiation. Perhaps in their the others inconsequential. thought might have innocent necessary step introduction became in fact a Finally, complains Stancin that a followed; passes but it belief that in what witness, Burns, brought Californian was not thought step they have it a should con testify to New to in his defence. is crime, sciously taken to “cause” the or that enough support to the order of the second guilty, have found Stancin if judge, on, to brought who refused have him the calis were more he said. that Burns had sworn to an affidavit which complains Stancin next the testimony Pandolfo’s Pan corroborated jury was allowed to make an inference talking together dolfo and Stancin from fact that at his arrest the and after- money, about counterfeit and that one of interrogated. he refused to be wards What successfully tried the two to to may. he prejudice ever have suffered from apparently on the subject. same someone original ruling completely True, had confirmed Burns Stancin’s ver by charge cured he told affidavit; talk in an but, earlier sion jury explicitly that “no inference of his upon had reverted to that he affidavit if guilt is to be drawn found because he credibility stand, his would have been so any statement failed to make as to his inno impaired by the second far affidavit as cence. He can remain if he so- de silent his useless to sires.” make Stancin. upon imposed We Chiarel'la Stancin. Pietraniello prac repeatedly protested against have already considered haveWe merely tice when the counts vari verbal as to Pietraniello sufficiency evidence transaction; single ants of criminal but a points con only remain three ordinarily powerless we are to interfere. jury acquitted first is that the sider. The In the case at bar it turn out that receiv upon selling for him the counts can, give appel and we these wish two conspiracy, con ing and for the the bills opportunity present point lants a possessing. only He for victed which they raised. Each sen inconsistency of this complains of imprisonment tenced to term of ten verdict; require too settled to but it is well One, years years on Count to a term of ten inconsistency between the argument Two, upon Count and to a term of five and that on others verdict on one count Four; years upon Count all these terms point The second is that immaterial.13 consecutively, to be served making twenty- to ask him prosecution allowed years They five in all. were also sentenced his wife’s broth whether cross-examination term of years Three, ten under Count judge prison in Atlanta. The er was not in but, as that term was to be concur served question but sustained an rently with Two, the Counts One and it add answered, it had been so that after nothing. ed Since Count One was for was, damage there was done whatever receiving the bills14 and Count Two was ruled. The excuse before he offered possessing15 them, question suggests proper prosecution that it was to show itself whether the separate counts were for people kind “associates accused punished crimes and could be separately. with,” because he had witnesses to called ordinary rule is that crimes are the honesty. prove reputation We know evidence, if prove same which suffices to doctrine, and no authorities are no such one, is the same proves as that which support; im cited its the other.16 Whether possess one can proper prosecution should have receiving (the without them being bills not However, Pietraniello known that was. parties), made or receive them with away Army at the said them, possessing would seem to be not time, nature the brother-in-law’s free doubt. The holding result of counterfeiting ap fact offence —in —did judgment either Count One or Count complains pear. Lastly, Pietraniello Two invalid would reduce cumu permitted to call stand the he was years, lated to fifteen sentences which is the prosecution attorney for the without dis maximum under avoid a § testimony would be how his closing relevant. punishment cumulation of terms of for the suggest that an We do same transaction. If Chiarella and case can never be called as a trying a wit so, they may wish to do file serve ness, appears although to have joint support brief in opinion; surely of that but it should position thirty days within after this give that the defense be a condition some filed, opinion prosecution may answer reason for such unusual move. days twenty thereafter, within and we will objections This all the concludes question upon decide the briefs so sub which, appeared, raised as do not call Meanwhile, subject mitted. to that reversal of the for a convictions. We condition, the convictions are affirmed. judgment affirm the without more Convictions affirmed. not for the were it cumulative sentences Morgan Devine, v. States, 16. 237 U.S. 35 S. Dunn 1 3. v. United 284 U.S. 52 1153; 59 L.Ed. 356; Ct. United States v. 76 L.Ed. United S.Ct. States Noveck, 273 U.S. Dotterweich, 47 S.Ct. 320 U.S. 610; States, Oddo v. L.Ed. United L.Ed. 854; Cir., 171 F.2d Woods v. United 472, Title 18 U.S.C.A. § Cir., 26 F.2d 473, Title 18 § U.S.C.A. the evi- Here, particularly light of CLARK, (concurring).. Judge Circuit dence to Stancin’s connection as ' com- I it desirable 'concurring, In think cannot believe 'early stages, crime in its I involves for that upon ment 18 U.S.C.A. § error in mere- judge committed n 'significance point wider potentially a ly reading repeating or the words opinion read the As I thán this case alone. hardly imagine trial will statute. I added quite the new it would erase wish take it to write himself so do and would (b) of subd. that statute statute; and, whole subdivision of a pur- statem'ent rather clearer appellate judge, I want to do do is usual. pose in the notes' Reviser’s where, except same of con- after the fullest code revisions experience My with’these necessary. sideration, appears quite Such judges con- me that has convinced date does not I seem case here. should add immeasurably fusing problems involved precisely I am that while not clear as to revisions as not mak- by trying to read the is, anything what the I do not see when, changes as has become extensive ing (b), explained Reviser, in subd. obvious, many increasingly there' are sub- away take of a need show- changes' contemplated necessary ing intent. made. criminal stantial notes take to let the refusal less so. has notion the trial. The during evidence objections pass following We the three jurors times countenanced at been they more because are too trivial deserve notes, on the to take allowed sup- than a bare mention. The first is a impor theory take undue posedly prejudicial comment of the ques That jury when the deliberates. tance to one of cross- counsel while accused’s States,2 Agnew v. United tion raised examining The second is some testi- Carli. decided; though States v. but in United mony Carli, brought by the condemned, Davis,3 while practice questioning. The third innocent re- is an Chicago Railway v. and Northwestern mark of the district that there had Carlisi,5 Kelly,4 and in United States some attempt to confuse Carli. approved. supposed apparently

Case Details

Case Name: United States v. Chiarella

Court Name: Court of Appeals for the Second Circuit

Date Published: Oct 30, 1950

Citation: 184 F.2d 903

Docket Number: 48, Docket 21741

Court Abbreviation: 2d Cir.