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United States v. Thomas A. Dalfonso, 707 F.2d 757, 3rd Cir. (1983)
United States v. Thomas A. Dalfonso, 707 F.2d 757, 3rd Cir. (1983)
2d 757
13 Fed. R. Evid. Serv. 75
Appellant Thomas A. Dalfonso was tried to a jury and convicted in the United
States District Court for the Western District of Pennsylvania of distributing
and conspiring to distribute the narcotic dilaudid in violation of 21 U.S.C. Secs.
841(a)(1) and 846. He appeals his conviction and sentence of five years
imprisonment and fine, contending that the trial judge committed reversible
error by (1) failing to recuse himself, and (2) permitting a government witness
to invoke the fifth amendment on cross-examination. We see no merit in these
contentions and therefore affirm.
I.
2
The events leading to Dalfonso's conviction began in August 1981 when Joseph
Carbone, a professional "confidence man," communicated with the Federal
Assuming his role as informant, Carbone described for the FBI his contacts
with appellant Dalfonso and one Fred Kovalchuk. Dalfonso and Kovalchuk
recently had boasted to Carbone of the money to be made in selling dilaudid,
and offered to supply Carbone with the drug if he were interested in dealing.
Carbone had turned down this offer at the time, but at the Government's behest,
Carbone renewed his contacts with Dalfonso and told him that he was
interested in purchasing a large quantity of dilaudid. Dalfonso made
arrangements for the transaction through Kovalchuk. Dalfonso completed the
sale at the Inn America, New Stanton, Pennsylvania, in the presence of an FBI
agent posing as a friend of Carbone. Dalfonso and Carbone completed a second
sale several days later and following an aborted third sale shortly thereafter,
Dalfonso and Kovalchuk were indicted and charged with violating federal
narcotics laws.
At the pretrial hearing a notable incident occurred, forming the basis for one of
Dalfonso's allegations of error. The Assistant United States Attorney assigned
to the case apprised the court that an informant (not Carbone) had notified the
FBI that the prosecutor and one of the defense attorneys were going to fix the
case. This informant later changed his story and said that one of the defense
attorneys was going to fix the case with the court.1 The judge replied that he
was friendly with defense counsel, as he was with many other lawyers at the
bar of Western Pennsylvania, but was not going to fix the case.
The trial judge disclaimed having any contact with Richitelli since he
represented him "years ago in a tax matter," denied an effort had been made by
anyone to bribe him, and directed that an FBI investigation be made of the
alleged improprieties. Next, following an off-the-record conversation with
counsel, the judge announced that he was recusing himself from the case and
would have it reassigned to another judge. The judge then held further off-therecord discussions with counsel in chambers. At the close of these discussions
he announced that after further reflection, he had concluded that to recuse
himself would set an undesirable precedent, and after conferring with the
United States Attorney and defense counsel, he decided to vacate the recusal
order and hear the case. Both counsel for the defendants assented without
comment.
At trial Dalfonso did not deny that he had performed the criminal acts charged,
but instead asserted the affirmative defense of entrapment. To prove that he was
entrapped, Dalfonso sought to introduce evidence showing that Carbone was a
professional confidence man who might easily frighten or persuade even a
person of reasonable firmness to perform acts against his better judgment.
Prior to trial, the court had ruled that the defense would be permitted to
introduce evidence of Carbone's prior convictions for impeachment purposes,
but that the defense could not question Carbone about certain activities
appearing on his rap sheet for which he had not been convicted. Carbone's
conviction record included three counts of theft, burglary, larceny, and
receiving stolen goods, a firearms violation, making an illegal threat, and most
recently, theft and conspiracy.
10
We first address Dalfonso's contention that the trial court's failure to recuse
constituted reversible error. At the outset we observe that a federal trial judge's
decision with respect to recusal may be reversed only for abuse of discretion.
Johnson v. Trueblood, 629 F.2d 287 (3d Cir.1980), cert. denied, 450 U.S. 999,
101 S.Ct. 1704, 68 L.Ed.2d 200 (1981); Mayberry v. Maroney, 558 F.2d 1159
(3d Cir.1977). Furthermore, in cases such as this, where no objection to the
district court's failure to recuse was made at trial, a plain error standard of
review applies. United States v. Schreiber, 599 F.2d 534 (3d Cir.), cert. denied,
444 U.S. 843, 100 S.Ct. 86, 62 L.Ed.2d 56 (1979). This standard is, if anything,
even more rigorous than the abuse of discretion standard. As we observed in
Schreiber, the error must be egregious or otherwise constitute a manifest
miscarriage of justice. Id. at 535. With this plain error standard of review in
mind, we turn to the appellant's argument that the trial judge was required to
disqualify himself because his impartiality in this case "might reasonably be
questioned."
12
Dalfonso presses his recusal argument under 28 U.S.C. Sec. 455(a). That
section provides: "Any justice, judge or magistrate of the United States shall
disqualify himself in any proceeding in which his impartiality might reasonably
be questioned." The above language has been interpreted to mean that a judge
should recuse himself where a reasonable man knowing all the circumstances
would harbor doubts concerning the judge's impartiality. United States v.
Poludniak, 657 F.2d 948 (8th Cir.1981), cert. denied, 455 U.S. 940, 102 S.Ct.
1431, 71 L.Ed.2d 650 (1982).
13
We see no reason why any reasonable person familiar with the facts of this case
would question the trial judge's impartiality. First, there is nothing in either the
record or in the briefs submitted by the parties to suggest that the allegations of
judicial corruption in this case had any reasonable basis in fact. On the
contrary, the trial judge's prompt decision to order an FBI investigation speaks
for the emptiness of the allegations. The investigation ordered by the trial judge
vindicated him. As the Government asserts in its brief to this court, "The FBI
subsequently investigated the matter and found that all of the allegations made
by the various sources were without substance." Second, the trial judge had no
reason to, nor is there any evidence that he did, hold Dalfonso responsible for
the incident. Third, there is nothing in this record to warrant the fear that the
Finally, important considerations weighed against recusal. When the trial judge
refused to recuse because of his concern that the recusal, under the
circumstances, might set an undesirable precedent, he may have recognized the
temptation that such a procedure offered to defendants ready to seize upon any
opportunity to avoid trial before a particular judge. An anonymous telephone
call to the FBI or to the judge himself, or a telephone call to the prosecuting
attorney by an impostor falsely claiming that an effort was being made to
influence or even corrupt the trial judge, might open avenues for judge
shopping by impelling the trial judge to recuse. We cannot reasonably call into
question the impartiality of a presiding judge upon so tenuous a basis as a
telephone call, made by a meddler or even an accused, suggesting that the judge
might succumb to improper inducements.4
15
This potential judge shopping problem was not lost upon the framers of the
federal recusal statute. In the House Report accompanying the bill they
cautioned:
16
17
H.R.Rep. No. 1453, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. &
Ad.News 6351, 6355. There is no reasonable basis in this record to question the
judge's impartiality. A decision to recuse in the instant case might encourage
false impugnment of the integrity of trial judges as a tactic in future cases.
18
III.
Having disposed of Dalfonso's recusal challenge, we briefly consider his
19
20
In his brief in this court, Dalfonso explains that his purpose in attempting to
cross-examine Carbone with respect to the Kruggerands was "to show that at
the same time Carbone was convincing [Dalfonso] to get drugs, he was
convincing other people to give him great sums of money for non-existent gold
Kruggerands and bargain televisions." Evidence of Carbone's prior "rip-offs"
was of course admissible only to impeach Carbone's credibility. Dalfonso was
not entitled to introduce evidence of Carbone's previous scams to demonstrate
Carbone's propensity to defraud or influence his victims, and to suggest that
Dalfonso himself had been tricked into doing what he ought not do. Compare
Fed.R.Evid. 608(b) and 609(a) with Fed.R.Evid. 404(b).7
21
We need not address the question of whether Carbone, by taking the stand or by
testifying concerning his history as a confidence man, waived his right to
remain silent with respect to the alleged Kruggerand scam for which he had not
been tried or even charged.8 In view of the extensive testimony offered
concerning Carbone's convictions, prior "rip-offs," and method of operation,
testimony concerning the Kruggerand scam would have been merely
cumulative. We cannot believe that such cumulative testimony could have
substantially influenced the jury's assessment of Carbone's credibility, see
generally Government of the Virgin Islands v. Ruiz, 495 F.2d 1175, 1180 (3d
Cir.1974), and its exclusion was within the broad discretion of the trial court,
Fed.R.Evid. 403; Government of the Virgin Islands v. Ruiz, supra, 495 F.2d at
1177. A criminal defendant is not entitled to a new trial merely because a
government witness has exercised his fifth amendment privilege to remain
silent during cross-examination on a collateral matter relating to credibility.
The trial judge requested the name of the FBI informant, but the Assistant
United States Attorney declined to reveal the informant's name in open court
Carbone asserted his fifth amendment right not to testify concerning the
Kruggerand scam through counsel in chambers. The jury never heard Carbone
"take the fifth."
We have no reason to believe that the trial judge thought that defense counsel
in this case had fabricated events in the hope of persuading the court to recuse.
Defense counsel did not mention the Richitelli incident until the prosecution
had first raised the story of the FBI informant. Finally, the judge was on
friendly terms with one of the defense attorneys and unequivocally expressed
his belief that he thought him to be an honorable man. Thus, the court would
have little cause to suspect defense counsel of attempting to manipulate the
court
The Government does not allege that defendant waived his right to challenge
the judge's decision to sit. As we see nothing violative of 28 U.S.C. Sec. 455(a)
in the court's conduct, we need not raise the waiver issue sua sponte. See
United States v. Nobel, 696 F.2d 231, 238 (3d Cir.1982) (Rosenn, J.,
concurring)
The defendant also contends that the court erred in permitting Carbone to
invoke the fifth amendment privilege with respect to another "scam"
concerning the defrauding of a large number of people in Westmoreland
County in a proposed sale of television sets. The witness, however, did not
invoke the fifth amendment with respect to the television sets. His counsel
reported to the court that Carbone would answer questions with respect to the
television sets and deny any wrongdoing. He would however, refuse to testify
concerning the alleged sale of gold Kruggerands on fifth amendment grounds.
The court thereupon directed counsel not to cross-examine the witness
concerning the Kruggerands but to "go ahead on the televisions."
We note in passing that we are not impressed with Dalfonso's argument that
Carbone waived his fifth amendment rights simply by taking the stand.
Fed.R.Evid. 608(b) explicitly provides that, "[t]he giving of testimony, whether
by an accused or by any other witness, does not operate as waiver of his
privilege against self-incrimination when examined with respect to matters
which relate only to credibility." See also United States v. Newman, 490 F.2d
139, 145 (3d Cir.1974)