United States v. Marcantoni
590 F.2d 1324 (5th Cir.), cert. denied, 441 U.S. 937 (1979)

TJOFLAT, J. [Defendant was charged with armed bank robbery.] ... On Friday, August 6, 1976, at approximately 9:10 a.m., a white male, standing 5'9"-5'10", weighing 170-180 pounds, and wearing a motorcycle helmet with tinted brown sun visor, entered the Tampa Federal Savings & Loan Association (the Bank), Tampa, Florida, and went to the only teller window open at that time. The teller, Tina Brown, looked up into the barrel of a shotgun, screamed and ducked to the floor. The head teller, Debra Beckerink, realizing the situation, walked to Ms. Brown's window and began pulling bills of small denominations out of the money drawer and placing them in a bag. The gunman nervously commanded Beckerink to "give [him] the big bills." She complied, supplying him in the process with $3,791.00, including ten $10 bills of bait money.(1)2 The gunman then ran out of the Bank, firing a shot at the sidewalk as he left, and jumped into the back seat of a waiting getaway car being driven by a white, blond-haired female. The getaway car and its occupants were observed by various witnesses. When the Tampa police arrived on the scene moments later, the witnesses gave the officers a description of the vehicle, a 1966 light green Rambler station wagon with luggage racks on the top, and its Florida license tag number. A search of the Florida vehicle registration records disclosed that the tag had been issued to Helen Suzanne Tune Marcantoni for a 1966 Rambler station wagon....

The following Monday morning, August 9, 1976, Charlie Marcantoni consented to and assisted in a search of his Rogers Avenue residence by the Tampa police. During the search, Detective Edward Brodesser examined several hundred dollars in currency and recorded the serial numbers from the faces of the $10 bills he found, but he did not seize the bills....

On August 13, 1976, Detective Brodesser returned to the Marcantoni residence on Rogers Avenue with a search warrant authorizing the seizure of any of the bait money that might be there. Following his August 9 search of the residence Brodesser had learned that the serial numbers he had recorded from two of the $10 bills he had uncovered during the search matched the serial numbers of two $10 bills on the Bank's list of the bait money taken in the robbery. Brodesser was unable to find these bills on August 13, however, when he returned with the search warrant. Six days later the Marcantonis were indicted....

The argument advanced by the Marcantonis in the court below and on appeal in support of their objection to Detective Brodesser's testimony concerning the two $10 bills has been articulated inartfully at best. Giving the Marcantonis the benefit of every doubt, we read their argument as posing alternative objections to admissibility: (1) Detective Brodesser's testimony was irrelevant because it lacked probative value; (2) his testimony violated the best evidence policy embraced by Fed. R. Evid. 1004.

When Brodesser copied the serial numbers of the two $10 bills, he neglected to record all of the essential identifying data printed on the face of each of the bills--he omitted the series year. Knowledge of the series year was necessary, according to the Government's expert from the Bureau of Printing and Engraving, William Holland, to resolve any possible doubt whether the two bills Brodesser saw were bait money. Holland explained that each of the serial numbers Brodesser copied from the bills had been used by the Bureau on $10 bills in three separate series or years: series 1934A, 1950A, and 1969C. The $10 bills used as bait money were of the 1969C series.

The Marcantonis first objected to Brodesser's testimony about the serial numbers he had seen on the ground that the testimony would prove absolutely nothing; without the series year, they claimed, the jury could not find that either of the $10 bills found at their residence actually came from the Bank. The Government's response to this attack lies in the balance of Holland's testimony, considered in the unique circumstances of this case. Holland explained that the average life of a $10 bill is three and one-half years; thus there is very little chance that any of the series 1934A or 1950A bills were in circulation at the time of the robbery. He further pointed out that series 1934A bills are so rare that they are worth four to five times their face value and are collectors' items, making it extremely unlikely that any of those bills were still in active circulation in 1976. And chances are not much better that any of the series 1950A bills were then in circulation either. Holland's opinion was, therefore, that the two $10 bills Detective Brodesser uncovered were of the 1969C series and part of the Bank's bait money. He reinforced his opinion by observing that the odds are "extremely remote" that a $10 bill from the 1934A or 1950A series with the same serial number as one of the bait bills could have found its way to the Tampa Bay area at the same time as the bait bills; the odds were "hundreds of times greater" that two sets of such bills could have been in the Tampa Bay vicinity at once. Given Holland's opinion and the independent evidence establishing that Charlie Marcantoni left the Bank with bait money of the same serial numbers and denominations as those found in his home a short time later, the trial judge properly concluded that Brodesser's testimony concerning the serial numbers had probative value.

The Marcantonis' alternative objection to the reception of Brodesser's testimony is that rule 1004 required the Government to introduce the two bills in evidence. Brodesser's testimony, they argue, was secondary evidence of the contents of the bills and not admissible because the Government failed to establish any of the conditions to the admissibility of secondary evidence specified by Fed. R. Evid. 1004....

The Government made no formal attempt to qualify Brodesser's recital of the incriminating serial numbers as secondary evidence admissible under the rule. First, as the Government concedes, it did not undertake to show that the two bills were lost or destroyed. Second, it was not established that the Marcantonis were served notice that the contents of the bills would be a subject of proof at trial, and no process was directed to them to produce the bills in court. Finally, the Government did not, and in our opinion could not, contend that the evidence was "not closely related to a controlling issue."

There was little if anything in the argument of counsel that even addressed the qualifications of rule 1004 or, much less, whether they had been met in this instance. In overruling the Marcantonis' objection, the trial judge, quite understandably we think, gave no reasons for his decision. Consequently, we cannot determine whether the court treated Brodesser's statements about the serial numbers as secondary evidence,(2)4 and, if so, which of the conditions to admissibility prescribed by the rule it found to be fulfilled.

If, in truth, the court considered Brodesser's testimony to be secondary evidence, we must assume that the court was satisfied that at least one of those conditions had been established. It should have been obvious after Detective Brodesser's return to the Marcantoni residence with a search warrant failed to produce the two $10 bills in question that the bills would not be available to the prosecution for trial. We have no difficulty in concluding that, under the circumstances of this case, the trial judge would have been authorized to find, under section (1) of the rule, that the two bills were "lost or [had] been destroyed." Surely, the Marcantonis could not have contended that the unavailability of the bills was the product of Government "bad faith." The trial judge could also have found, under section (2) of the rule, that "[n]o original [could] be obtained by any available judicial process or procedure." Even assuming that the Marcantonis were amenable to a subpoena directing the production of the bills at trial,(3)5 we think it unrealistic to expect that they would have readily produced the two instruments that would have made the Government's case against them complete. In short, the Government was not required to go through the motion of having a subpoena issued, served and returned unexecuted in order to establish, under section (2), that the bills were unobtainable.

As for section (3) of the rule, a legitimate argument can be made on this record that the Marcantonis were "put on notice" that the serial numbers of the two $10 bills "would be a subject of proof" at the trial, and that, having not produced them at trial, the Marcantonis could not object to the use of Brodesser's notes. In sum, although the trial judge, in overruling the Marcantonis' best evidence objection, should have announced the predicate to admissibility he found to have been established under rule 1004, his decision to receive the evidence was correct.(4)6

1. 2. Bait money was kept in each teller's money drawer. When the bait money in question was removed, a silent alarm to the Tampa Police Department activated. The denominations, serial numbers, series years, and the bank of issue of each bait money bill had been recorded by the Bank.

2. 4. It is conceivable that the court viewed Brodesser's statements as present recollection refreshed or as past recollection recorded. Fed. R. Evid. 803(5).

3. 5. We think it fairly debatable whether the Marcantonis could have been compelled, in the face of the fifth amendment privilege against self-incrimination, to produce the two $10 bills for use by the prosecution at trial. See generally Bellis v. United States, 417 U.S. 85 (1974); United States v. Hankins, 565 F.2d 1344 (5th Cir. 1978).

4. 6. An argument can be advanced that the admissibility of Detective Brodesser's statements about the serial numbers is not controlled by rule 1004. Although these statements have all the indicia of mere secondary evidence, it might be said that they constitute something more; Brodesser was testifying about what he had observed first hand during the course of his search of the Marcantoni residence. Whether he was testifying from present recollection refreshed or past recollection recorded, see Fed. R. Evid. 803(5), however, cannot be determined with certainty from the record. In questioning Brodesser about the serial numbers on direct examination, the prosecutor did not undertake to establish, as a preliminary matter, whether the witness was actually able to remember the precise serial numbers he had noted on the two $10 bills in issue; instead, he went straight to the heart of the matter, simply asking Brodesser to repeat the serial numbers he had seen and recorded. The likelihood is, of course, that even with the benefit of his notes, Brodesser could not recall the precise serial numbers and that his testimony was strictly a recital of what he had recorded.

We think it not far fetched to say that Brodesser's notes constituted, in the language of rule 803(5), "[a] memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made ... by the witness when the matter was fresh in his memory and to reflect that knowledge correctly." We should point out, however, that if Rule 803(5) is considered the sole basis of admissibility, the notes themselves, as distinguished from a recital thereof, should not have been received as an evidentiary exhibit in the Government's case-in-chief. As the rule states, "[i]f admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party."


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