United States v. Philip Albergo

539 F.2d 860, 1976 U.S. App. LEXIS 8479
CourtCourt of Appeals for the Second Circuit
DecidedJune 17, 1976
Docket1013, Docket 75-1279
StatusPublished
Cited by32 cases

This text of 539 F.2d 860 (United States v. Philip Albergo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Philip Albergo, 539 F.2d 860, 1976 U.S. App. LEXIS 8479 (2d Cir. 1976).

Opinions

VAN GRAAFEILAND, Circuit Judge:

This is an appeal from a judgment following a jury verdict in the United States District Court for the Eastern District of New York convicting defendant of perjury before a grand jury. 18 U.S.C. § 1623(a). We affirm.

In the Spring of 1973, Michael Rigolizzo, an agent of the FBI, began an investigation into the theft of approximately seven thousand airline tickets. His efforts uncovered a possible connection between the stolen tickets and Larry Alfano, manager of the Cross Roads Bar in Queens, New York, and an associate of his, Mike Augendiso. As a result of Agent Rigolizzo’s investigation, a special grand jury was impanelled; and appellant was one of approximately 500 witnesses called to testify.

[862]*862At the outset of his testimony, appellant was informed as to the nature and scope of the investigation into stolen airline tickets. He was then questioned regarding his relationship with Larry Alfano and Mike Augendiso and admitted a personal and business relationship with Alfano and an acquaintanceship with Augendiso. He also testified in response to inquiry, that he knew a girl named Loraine and had talked with her on the telephone at the Cross Roads Bar.

When the questioning turned to the subject of airline tickets, appellant’s affirmative answers ceased. He denied ever having taken an airline trip or having purchased or received airline tickets and said he didn’t even know what they looked like. He stated that he had never talked to a “Larry” or “Mike” about airline tickets and that he knew nobody who had gotten tickets from Larry or Mike. Appellant’s indictment was based on this latter testimony, which is set forth in full in the margin.1

At the trial which commenced before Judge Judd on June 9, 1975, appellant’s grand jury testimony was introduced into evidence, following which the prosecution called Agent Rigolizzo to the stand. Rigolizzo testified, over vigorous defense objection, that he had been engaged for some time in the investigation of stolen airline tickets; that he had recovered approximately two thousand of the seven thousand tickets reported stolen; that some of the stolen tickets had been traced to the Cross Roads Bar, and that he had been able to connect certain of these tickets to Larry Alfano and Mike Augendiso.

Following this testimony, the Government introduced into evidence four telephone conversations recorded from wiretaps placed on telephones at the Cross Roads Bar. They were all between a male speaking from a telephone in the Bar and a female subsequently identified as Loraine Zencorich. In the first recording, there are vague references to a trip to Miami and to July 28 as a departure date for someone named Marsha. There is also an apparently facetious suggestion by Loraine that the male with whom she was talking get her a ticket to Australia.

In the second conversation, the male asks if a figure of $340 is correct and receives an affirmative response. He . then states, “ . . . we get’em like, say like half price,” so “that would be one hundred and seventy dollars ... for two.”2 The male then refers to a cut on the deal by someone named “Mikie” and states that he’s delivering “them” tonight.

In the third conversation, the male advises Loraine that he has her tickets and that their actual cost is $171 each.

In the final conversation, Loraine calls the Bar and asks for “Philip”. Within seconds, the male voice which appeared on the three previous tapes is heard. For the first time, there is mention of “Larry” when the male tells Loraine that Larry says they had been charged too much for the tickets.

After the introduction of these tapes, Officer Paulsen of the New York City Police Department was called as a witness and identified appellant as the male speaker.3 As a foundation for this identification, Paulsen testified that he had heard appellant’s voice on tape some 500 different times and that he had on one occasion visited the Cross Roads Bar and listened to appellant talking with a group of men at the Bar.

Asserted error in connection with the testimony of Agent Rigolizzo and Officer [863]*863Paulsen forms the basis of appellant’s appeal. Appellant contends that Rigolizzo’s testimony was irrelevant and prejudicial; that the testimony of Paulsen was insufficient to support his voice identification, and that the manner in which such identification was made was unduly suggestive and therefore violative of due process.

Agent Rigolizzo’s Testimony

While conceding the need for the Government to establish that his allegedly false statements were material to the investigation being conducted by the grand jury, see United States v. Moran, 194 F.2d 623 (2d Cir.), cert. denied, 343 U.S. 965, 72 S.Ct. 1058, 96 L.Ed. 1362 (1952), appellant contends that such materiality could have been proven with evidence less prejudicial than the testimony of Rigolizzo. He suggests, for example, that the grand jury foreman could have been called as a witness. See e. g., United States v. Alu, 246 F.2d 29 (2d Cir. 1957). He also suggests that Rigolizzo’s testimony was offered primarily for the improper purpose of raising an inference that Larry Alfano had stolen tickets and that appellant knew this to be so.

Judge Judd very carefully instructed the jury, however, that no such inferences could be drawn. He said:

The fact that there might have been some stolen airline tickets, that was the subject of the investigation and that’s been referred to. That is not grounds for convicting this defendant on a perjury charge. He [the appellant] is not charged with possession of stolen tickets or with aiding in the possession of stolen tickets. The testimony by Mr. Rigolizzo with respect to the fact that he had traced some of the stolen tickets to the Cross Roads Bar, has a bearing on the materiality of the question and on the importance of the finding out as much as could be learned about dealings in the Cross Roads Bar. But it does not permit you to infer that Mr. Alfano had stolen tickets, nor that Mr. Albergo knew Mr. Alfano had stolen tickets.4

The balancing of relevance against prejudice is primarily for the trial judge; and, without a showing of abuse, his exercise of discretion will not be overturned. United States v. Chapin, 169 U.S. App.D.C. 303, 515 F.2d 1274, 1284 (1975), cert. denied, 423 U.S. 1015, 96 S.Ct. 449, 46 L.Ed.2d 387 (1975). Agent Rigolizzo’s testimony was not only material to an understanding of what took place before the grand jury; it was also relevant to an understanding of the taped conversations introduced during the trial. If, as appellant contends, the trial jury would have been fully aware of the scope of the grand jury investigation without this testimony, it could hardly be considered prejudicial. Indeed, there was virtually nothing in the testimony that was not easily inferred from the grand jury minutes.

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Bluebook (online)
539 F.2d 860, 1976 U.S. App. LEXIS 8479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-philip-albergo-ca2-1976.