United States of America, Plaintiff-appellee, v. Donald N. Gervasi, Defendant-appellant, 495 F.2d 762 (2d Cir. 1974)

We affirm in open court the conviction of Donald N. Gervasi for possession of about $50,000 in $20 counterfeit Federal Reserve Notes, in violation of 18 U.S.C. 472. There can be no complaint with Chief Judge Henderson's charge on entrapment, which apparently resulted in a verdict of acquittal on the first three counts of the indictment, as the judge was not required to give any charge on entrapment in the light of the evidence adduced at trial.

Gervasi also claims that the sentence of seven years imprisonment imposed by Judge Henderson constituted cruel and unusual punishment in violation of the eighth amendment. While we do not agree with Gervasi's claim that his seven-year sentence violates his eighth amendment rights, we do feel that the sentence may be unnecessarily harsh in view of the presentence report and the proceedings at sentencing. We therefore urge the district court to give careful consideration to any motion for reduction of sentence, pursuant to Rule 35, Federal Rules of Criminal Procedure.

Roger P. Williams, Asst. U.S. Atty., Buffalo, N.Y. (John T. Elfvin, U.S. Atty., W.D.N.Y., Buffalo, N.Y., on the brief), for plaintiff-appellee.

Charles J. McDonough, Buffalo, N.Y., for defendant-appellant.