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UNITED STATES v. ROBINSON

September 17, 1981

UNITED STATES of America, Appellee,
v.
Hugh O'Brien ROBINSON, Appellant



The opinion of the court was delivered by: NEAHER

MEMORANDUM AND ORDER

Hugh O'Brien Robinson appeals from his misdemeanor conviction, following a bench trial before United States Magistrate John L. Caden of the Eastern District of New York, *fn1" for knowingly offering, exposing and keeping with intent to furnish counterfeit United States currency in violation of 18 U.S.C. ยง 491(b). *fn2" This appeal presents the interesting question whether, consistent with a defendant's Fifth Amendment privilege against self-incrimination and rights to due process, the prosecution may comment upon evidence of pre-arrest silence where no defense case is presented. Mindful that the facts and issues presented here require us to enter largely unexplored territory, see United States v. Caro, 637 F.2d 869, 876 (2d Cir. 1981), and United States v. Flecha, 539 F.2d 874, 877 n. 1 (2d Cir. 1976), under the circumstances of this case the Court answers this question in the affirmative and upholds appellant's conviction.

 The evidence at trial showed that on November 16, 1979, appellant was fined $ 250 in the Brooklyn, New York, Criminal Court for an unspecified infraction. Appellant wanted to pay the fine immediately, and court officer Paul Moriarity was assigned to accompany him down to the cashier's office, deliver the court papers there and see that appellant actually paid the fine.

 As appellant stood at the cashier's cage, Moriarity, standing approximately two feet behind him, observed the cashier review the papers and ask appellant for $ 250. *fn3" Appellant took his wallet from his pocket and opened it. Moriarity noticed that the wallet contained three separate "packets" of currency, each folded over with the ends facing downward into the wallet. Appellant selected $ 250 in bills and gave them to the cashier, who placed them under a counterfeit currency detector light. Moriarity's testimony, none of which was objected to, continued as follows:

 
"A. ... I seen (sic) that all the bills were not of the same quality as the rest of the bills. She gave him back the four bills and said now give me real money.
 
Q: What did Mr. Robinson do at that point?
 
A: At that point he went back into his wallet and produced another $ 80.
 
Q: Were you able to see where Mr. Robinson took that from his wallet? Was it any one particular packet?
 
A: I really couldn't say.
 
Q: Did Mr. Robinson say anything?
 
A: No.
 
Q: You were unable to see the expression on his face at that time?
 
A: No.
 
Q: Continue with your description of what happened after that. Mr. Robinson went back into his wallet, paid the money. Was there any further problem with the production of counterfeit notes?
 
A: No. There were no further problems. It was genuine cash."

 T. 21. *fn4" The cashier, apparently satisfied with the transaction, gave appellant a ...


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