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United States v. De Biasi

July 5, 1983


Appeal by defendants from judgments of conviction for conspiracy to commit bank and wire fraud, conspiracy to use counterfeit credit cards, and bank and wire fraud. The judgments of conviction were entered in the United States District Court for the Eastern District of New York (Judge Jacob Mishler) following an eight-day jury trial. Affirmed.

Kaufman, Pratt, and Gibson,*fn* Circuit Judges.

Author: Gibson

GIBSON, Circuit Judge:

John Eboli and Anthony De Biasi were convicted after a jury trial on one general count of conspiring to commit bank and wire fraud through the use of counterfeit credit cards. (18 U.S.C. §§ 371, 1014, 1343 (1976)). Defendant Eboli was also convicted on eighteen counts of conspiring to use counterfeit credit cards (15 U.S.C. § 1644(a)); and defendant De Biasi was convicted on two counts of wire fraud (18 U.S.C. § 1343). On appeal, Eboli challenges the propriety of the court's charge and the sufficiency of the evidence to support his conviction for conspiracy to use counterfeit credit cards under 15 U.S.C. § 1644(a). De Biasi makes similar challenges to his wire fraud convictions under 18 U.S.C. § 1343. Both defendants challenge the court's charge on the general conspiracy count and a variety of evidentiary rulings, and complain of prosecutorial misconduct. Finally, Eboli attacks the court's failure to suppress evidence seized as a result of an allegedly illegal search and seizure. We reject all of these claims, finding most of them to be frivolous; hence, we affirm the judgments of convictions.

I. Facts

The evidence presented at trial revealed that between 1980 and 1982 Eboli and De Biasi supplied coconspirator Peter Frappollo, a storekeeper, with numerous counterfeit credit card sales slips and counterfeit credit cards. Frappollo turned paid informant in 1981 after being confronted by postal inspectors regarding his fraudulent use of counterfeit credit card slips. Frappollo received immunity from prosecution and became the government's main witness at the trial of Eboli and De Biasi.

A. Counterfeit Credit Card Sales Slips

In 1980, Frappollo, co-owner of the Vanilla Country Store, a retail establishment in Rocky Point, New York, was party to a Merchant's Agreement with Chemical Bank under which Frappollo was authorized to accept VISA and MasterCard cards in payment of purchases at the store. Seizing upon this relationship with Chemical Bank, Frappollo entered into a scheme with his friend John Verrastro, involving counterfeit credit card sales slips. Frappollo would give blank credit card sales slips to Verrastro, who would turn the slips over to a supplier and for $60 per slip acquire slips imprinted with a card number, cardholder name and cardholder signature. Verrastro would return the imprinted slips to Frappollo, who would fill in purchase amounts, telephone for and receive authorization from Chemical Bank, deposit the slips in his account, and then withdraw the funds and split the proceeds with Verrastro.

Verrastro told Frappollo that Eboli was the supplier of the imprinted slips. Frappollo also received slips directly from Eboli. Frappollo testified that on one occasion he met Eboli at a candy store and gave him blank slips. Eboli handed the slips to De Biasi who went to the back of the store and returned fifteen minutes later with ten slips imprinted with a customer number, name, and signature.

Frappollo continued making fraudulent deposits of the imprinted slips supplied by Verrastro, Eboli and De Biasi until December 1980, when Chemical Bank closed the Vanilla Country Store account. Expert testimony established that these slips were imprinted with counterfeit cards. None of the true cardholders whose card number, name, and signature on the counterfeit slips identified in the eight wire fraud counts had ever purchased anything from Vanilla Country Store or had authorized anyone to sign his signature on a sales slip. Five of the customer signatures appearing on the counterfeit slips deposited by Frappollo were positively identified as having been written by Eboli and four by De Biasi.

Two of the slips written by De Biasi formed the basis for his conviction on two wire fraud counts. With respect to these two slips, Frappollo testified that he telephoned the Chemical Bank Authorization Center ("CBAC") in Lake Success, New York, and received authorization for MasterCard purchases in excess of the applicable "floor limit" of $50.*fn1 CBAC authorization logs confirmed that a CBAC clerk received electronic authorization for the sales slips from the MasterCard facility in St. Louis, Missouri. This authorization was made over leased telephone lines connecting CBAC in New York and the MasterCard facility in St. Louis, Missouri.

B. Counterfeit Credit Cards

In February, 1982, Frappollo, cooperating with Postal Office inspectors, renewed his contacts with Verrastro in an effort to obtain counterfeit credit cards. On five separate occasions between February 23 and the arrests of Verrastro and Eboli on May 7, 1982, Verrastro sold Frappollo counterfeit cards; in all Verrastro sold Frappollo over fifty counterfeit cards. Evidence proving Eboli supplied Verrastro with the cards on at least four of these occasions was demonstrated through an interweave of tape recordings of conversations between Frappollo and Verrastro, telephone company records of calls made between Verrastro's and Eboli's homes, surveillance, and fingerprint evidence showing Eboli's right thumb and right index fingerprints appeared on a white piece of paper containing ten counterfeit cards.

The final counterfeit credit card sale on May 7, 1982, was preceded by three conversations between Frappollo and Verrastro discussing purchasing arrangements, and three calls from Verrastro's home to Eboli's home. On May 7, Frappollo, under postal inspector's supervision, arrived at Verrastro's home with eighteen marked $100 bills. Verrastro delivered twenty counterfeit cards to Frappollo in exchange for $1,500. Verrastro told Frappollo that he would transfer the money to his source and instructed Frappollo to return with the remainder of the purchase price of $1,700. Later, surveillance officers observed Verrastro meeting Eboli. After Verrastro and Eboli parted company, the officers arrested Eboli. A subsequent search revealed nine of the marked $100 bills Frappollo had earlier given to Verrastro and a counterfeit Chemical Bank MasterCard. This credit card was compared with the others Frappollo had received from Verrastro that day and it was determined that they were all made by the same counterfeit plate.

C. The Defense

Eboli's defense basically consisted of his own testimony that although he both received the phone calls from Verrastro reflected in the telephone records and met Verrastro each of the times he had been observed by surveillance officers, he was merely "settling up" gambling debts that Verrastro owed him. During sentencing, the trial judge concluded that Eboli's testimony was perjurious. De Biasi called one witness, a sales manager who sold De Biasi a green Cadillac that had a green roof. This evidence was introduced to negate the inference that Verrastro had entered De Biasi's Cadillac on March 30 to obtain ...

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