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United States v. Nazzaro

decided: January 11, 1973.


Kaufman, Anderson and Oakes, Circuit Judges.

Author: Kaufman

IRVING R. KAUFMAN, Circuit Judge:

Rarely is there a case reaching us after conviction in which the defendant believes he has received a fair trial. The human tendency to blame a trial judge for the jury's verdict of guilt is a frailty we often encounter, and almost as frequently we find such claims to be without merit or substance. Once again we are asked by a convicted defendant to consider a claim of improper conduct on the part of a trial judge. In this instance, however, we believe the record amply demonstrates that the defendant, James Nazzaro, did not receive a fair trial. Although "it is one of the glories of federal criminal law administration that a district judge is more than a moderator or umpire. . .," United States v. Curcio, 279 F.2d 681, 682 (2nd Cir.), cert. denied, 364 U.S. 824, 81 S. Ct. 59, 5 L. Ed. 2d 52 (1960), a judge's participation during trial -- whether it takes the form of interrogating witnesses, addressing counsel, or some other conduct -- must never reach the point at which it appears clear to the jury that the court believes the accused is guilty. Nazzaro, who was convicted after trial before Judge Rosling and a jury for receiving, concealing, and facilitating the transportation of eight and one-half pounds of hashish, in violation of 21 U.S.C. ยง 176a,*fn1 maintains that the trial judge's conduct in examining witnesses -- particularly the defendant himself -- and in repeatedly harassing Nazzaro's counsel, so severely prejudiced the defense as to make a fair trial impossible.

There is simply no handy tool with which to gauge a claim that a judge's conduct improperly has shifted the balance against a defendant. Understandably, we reach a decision in such cases only after the most thorough and careful deliberation. We frankly recognize that appellate review of criminal cases, always a difficult task, becomes even more hazardous when the question presented involves an attack upon the conduct of a judge. The special quandary we face in such cases stems from the fact that "we are not given the benefit of witnessing the juxtaposition of personalities which may help prevent reading too much into 'the cold black and white of a printed record'". United States v. Grunberger, 431 F.2d 1062, 1067 (2nd Cir. 1970). Moreover, appellate review does not take place in a vacuum. We must be mindful of the fact that trials in the district courts are not conducted under the cool and calm conditions of a quiet sanctuary or an ivory tower, and that enormous pressures are placed upon district judges by an ever increasing criminal docket*fn2 and a demand, expressed in part by Rules of the Second Circuit Judicial Council, for speedier trials of criminal defendants. These pressures can cause even conscientious members of the bench, such as the trial judge in this case, in their anxiety to keep pace with the flood of litigation, to give vent to their frustrations by displaying anger and partisanship, when ordinarily they are able to suppress these characteristics. But grave errors which result in serious prejudice to a defendant cannot be ignored simply because they grow out of difficult conditions. A claim of unfair judicial conduct, under these circumstances, requires a close scrutiny of each tile in the mosaic of the trial so that we can determine whether instances of improper behavior or bias, when considered individually or taken together as a whole, may have reached that point where we can make a safe judgment that the defendant was deprived of the fair trial to which he is entitled. United States v. Guglielmini, 384 F.2d 602, 605 (2nd Cir. 1967). On the record before us, we are left with the inescapable conclusion that the judge's conduct during trial seriously prejudiced the defendant. Accordingly, we are constrained to reverse Nazzaro's conviction and remand for a new trial.*fn3


A brief recital of the facts adduced at the trial will aid us in considering Nazzaro's principal claim. Nazzaro's trial focused upon incidents involving a large trunk shipped from Morocco to New York City via Air France. The trunk, containing some articles of women's clothing and a blanket, arrived at the Air France cargo terminal at Kennedy International Airport on December 25, 1969. Concealed within a false panel at the bottom of the trunk were eight and one-half pounds of hashish. Two months later, on February 25, 1970, an undated Air France arrival notice was delivered through the mail to Nazzaro's apartment at 17 West 20th Street in Manhattan.*fn4 The notice -- addressed to Nazzaro Studio of Design*fn5 -- stated that a shipment had been received by the airline and that storage charges were accruing. In the early afternoon of February 27, a friend drove Nazzaro to Air France's cargo building at Kennedy Airport.*fn6 When Nazzaro presented the arrival notice to an employee at the Air France freight counter, he was given additional shipping documents and instructed to go to the United States Customs Office, located at the far end of the counter. The additional documents -- an airway bill and a carrier's certificate -- indicated that the trunk had been shipped from Morocco by Judy Hoffman and George Armstrong.

As Nazzaro walked towards the Customs section, an Air France employee placed the trunk on a counter in front of Inspector Frank Pisciotta. Pisciotta testified at trial that after examining the documents which Nazzaro handed to him, he asked Nazzaro if he owned the trunk. Nazzaro responded, according to Pisciotta, that a friend, Judy Hoffman, had written a letter requesting him to claim the trunk and hold it until she returned to the United States from Morocco. Pisciotta claimed that Nazzaro expressed a willingness to pay any duty imposed on the contents of the trunk.

Nazzaro's version of this incident differed sharply from Pisciotta's. Nazzaro, who maintained during trial that he did not know anyone named Judy Hoffman, testified that the arrival of the Air France notice completely mystified him. He stated that after Air France refused to disclose any information about the shipment over the telephone, he went to the airport to seek an explanation. According to Nazzaro, he talked with Pisciotta only about accrued storage charges.

Pisciotta, after this conversation with Nazzaro, inspected the trunk. An apparent two-inch discrepancy between its inside and outside depth measurements and the fact that the trunk was only half full immediately aroused his suspicions. Pisciotta and another inspector then carried the trunk to a back room. While Nazzaro stood to the side, Pisciotta cut a small hole in the bottom of the trunk with a pocket knife. The opening revealed a plastic wrapping containing a substance which Pisciotta believed was hashish. Pisciotta immediately telephoned the airport headquarters of the Bureau of Customs to report his discovery. In response, Special Agent Frank Farrell and Customs Port Investigator James Voloposille went to the Air France cargo building to investigate. Farrell examined the false bottom and concluded that the substance contained in the plastic wrapping was hashish. Farrell then informed Nazzaro that he was under arrest, advised him of his rights, and placed handcuffs on him.

After taking the trunk to their government automobile, Farrell and Voloposille drove Nazzaro to the Bureau of Customs's airport office. Agent Farrell testified that during this trip he commented on the large quantity of seized hashish. According to Farrell, Nazzaro responded by saying, "I didn't think there would be that much hash." In addition, Farrell claimed that Nazzaro answered, "She's not here," when asked about Judy Hoffman's identity. At trial, Nazzaro vigorously denied making the statements attributed to him.

After a brief stop at the airport office, Farrell and Voloposille drove Nazzaro to the Bureau of Customs headquarters at 201 Varick Street in Manhattan. Farrell escorted Nazzaro to a room located on the third floor for questioning by Special Agent Donald Donohue, who was in charge of the investigation. Donohue did not summon a stenographer to transcribe the subsequent interrogation nor did he prepare a written report recording the substance of the interview. At the trial twenty-six months later, he was able, nevertheless, to recall perfectly that in response to questioning, Nazzaro stated that he had gone to the airport to claim a trunk for his friend, Judy Hoffman. According to Donohue, Nazzaro admitted that he "knew he was going to get some hash [but] didn't think it would be quite that much." While Donohue interrogated Nazzaro, Farrell removed the entire bottom of the trunk in the hall outside the interview room, revealing twenty bags of hashish. When Nazzaro left the room with Donohue at the conclusion of the interrogation, he saw the packages and, again according to Donohue, stated, "I told you, I did not know it was going to be that much stuff."

Nazzaro's recollection of this interview sharply contradicted Donohue's. Nazzaro flatly denied acknowledging an acquaintance with Judy Hoffman or ever stating that he was expecting "some" hashish, but not "that much."

The government's case against Nazzaro thus relied heavily upon admissions -- uncorroborated by any written memoranda -- allegedly made by Nazzaro to Pisciotta, Farrell and Donohue. At trial, Nazzaro conceded that he had gone to the airport with the arrival notice. He denied, however, any familiarity with a person named Judy Hoffman and insisted that he did not know why he was notified of the trunk's arrival, nor did he know anything about its contents. The theory of the defense was that Nazzaro's sister-in-law, Jennifer Nazzaro -- who was travelling in Morocco during December, 1969 -- had shipped the trunk to "Nazzaro Studio of Design" on West 20th Street without giving any advance notice or warning of its contents. According to Nazzaro, Jennifer, who was separated from her husband Phillip, probably intended the trunk for either Mara Lepmanis -- Jennifer's close friend -- or Phillip Nazzaro, who shared the apartment with James and Mara.*fn7 Accordingly, in view of the fact that each government witness recalled his version of the three conversations without the benefit of any written memoranda, resolution of Nazzaro's guilt or innocence turned upon the jury's view of the credibility of the witnesses presented by each side. The question for the jury thus necessarily focused on whether Nazzaro in fact did admit that he was expecting the arrival of a trunk containing hashish from Judy Hoffman.

It is in this context that we turn to Nazzaro's claim that the trial judge so interfered with the course of trial as to preclude a fair resolution of the factual dispute.


There is no dispute among the parties that the judge participated extensively in the examination of all witnesses. Several such instances, however, occurred only "where [it was] necessary to clarify testimony and assist the jury in understanding the evidence," United States v. DeSisto, 289 F.2d 833, 834 (2nd Cir. 1961).*fn8 But "while it might be proper for a judge to question witnesses to clarify issues, such intervention should not become the rule." United States v. D'Anna, 450 F.2d 1201, 1206 (2nd Cir. 1971). It is clear from the record that on frequent occasions during the trial of this case, the judge's questions unmistakably rehabilitated a prosecution witness whose credibility had been undermined by defense counsel. At other times, the court's questions appeared designed to inject doubt or uncertainty as to the credibility of a defense witness. While we must forego an enumeration of all instances of misconduct revealed by the record if we are not to prolong unduly this opinion, a few examples will suffice.

In the course of cross-examination of Special Agent Donohue, counsel for Nazzaro attempted to explore inconsistencies between Donohue's testimony during direct examination and his statements to the Grand Jury that indicted Nazzaro. The following ensued:

Q. Isn't it a fact that you never told the Grand Jury that Judy Hoffman was a friend of [Nazzaro's]?

A. Not if I weren't asked.

Q. Isn't it a fact that you never told --

The Court: Counselor, the witness has just stated that he responded to questions.

Do you have any questions you want to confront him with? Don't ask him whether he told them -- there are a lot of things he didn't tell them.

You didn't tell them that Columbus discovered America in 1492, did you?

The Witness: I wasn't asked, your Honor.

The Court: You may continue, but not in that form.

Q. Had you told the U.S. Attorney, prior to the Grand Jury presentation, that the defendant had told you about a letter he was going to get?

A. Yes, sir.

Q. And you were not asked the question and didn't give the answer in the Grand Jury?

A. That is correct.

The Court: Members of the Jury, whether or not he got a letter or not is irrelevant to the charge here. So it may be that that was why he wasn't asked.

Do not raise your voice in such indignation, counselor.

Mr. Schwartz: I am trying not to do that.

The Court: But you are doing it. The Jury knows I'm not inventing this, they hear you.

There were numerous similar occasions in which the judge came all too quickly to the aid of a prosecution witness during cross-examination. The impact of these instances was such that the jury could only believe that the judge favored the government's witness and his version of the facts.

Even more damaging was the judge's persistent questioning of defense witnesses, particularly the defendant Nazzaro himself. The trial judge often assumed the prosecutor's role, interposing questions which clearly indicated disbelief in the defendant's testimony. One illustration will suffice. During Nazzaro's testimony, he asserted that the Air France employees had referred him to a Customs official for discussion of accrued storage charges on the trunk. Nazzaro was met with a lengthy barrage of questions by the judge aimed at demonstrating the improbability that a United States Customs Inspector would be concerned with an airline's storage charges:

The Court: Let me ask you this, this letter about storage charges didn't come from the United States Government, did it?

The Witness: I don't believe so.

The Court: Who did it come from?

The Witness: Air France.

The Court: Now, you went to the Air France ...

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