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decided: November 21, 1957.


Author: Lumbard

Before MEDINA, LUMBARD and WATERMAN, Circuit Judges.

LUMBARD, Circuit Judge.

Defendants appeal from judgments of conviction entered against them after a jury trial in the Eastern District of New York. Tomaiolo was convicted on three counts: (1) conspiring with Louis Soviero, Abraham Nirenberg and Salvatore Catapano to rob the State Bank of Suffolk, in Brentwood, New York, on November 29, 1955; (2) bank robbery of $35,033.07 in cash and $6,290. in negotiable travelers checks; and (3) putting in jeopardy the lives of the bank employees during said robbery, in violation of 18 U.S.C.A. §§ 371, 2113, 2113(a) and 2113(d). Soviero was convicted on three counts: (1) for the conspiracy to rob the bank; (2) aiding and abetting the robbery; and (3) as an accessory after the fact, in violation of 18 U.S.C.A. §§ 2, 3, 371 and 2113.

The principal witness for the government was Mrs. Pauline Katz, who had been Abraham Nirenberg's mistress and an active participant in the conspiracy although she was not indicted and was not named as a co-conspirator.

There was ample evidence from which the jury could find the guilt of the defendants: Commencing in early November 1955, Nirenberg and Tomaiolo planned the robbery of the State Bank of Suffolk at Brentwood in Suffolk County, New York, which they finally committed on November 29, 1955. Some days before, Tomaiolo, Nirenberg and Mrs. Katz drove to the vicinity of the bank and Mrs. Katz went in and changed a $10 bill so that she could describe to Tomaiolo and Nirenberg the physical layout of the bank.

Louis Soviero arranged to have two of his nephews steal a black Buick sedan for use as the getaway car. To this car Soviero attached some license plates which his brother had secured under an assumed name. At the last minute Louis Soviero had a change of heart and said that he could not join Tomaiolo and Nirenberg in the robbery, but he did turn over to Nirenberg the stolen Buick. Tomaiolo and Nirenberg then decided to use a submachine gun in place of a third confederate and Tomaiolo arranged for it and Nirenberg picked up and paid for the machine gun the day before the robbery.

On the day of the robbery Tomaiolo, Nirenberg and Mrs. Katz drove out to Central Islip to the vicinity of where Nicholas Tomaiolo, Charles Tomaiolo's brother, worked as a presser in a clothing establishment. Charles Tomaiolo left his car there and Nirenberg took Nicholas Tomaiolo's blue Plymouth. Tomaiolo and Nirenberg then drove to the Brentwood bank in the stolen Buick while Mrs. Katz waited in the blue Plymouth at a point one mile from the bank and three blocks from Nicholas Tomaiolo's home. About 2 P.M., revolver in hand, Nirenberg entered the bank accompanied by a smaller man who brandished a machine gun. Although his confederate wore a snap brim cap and kept his face hidden with a yellow glove so that only his eyes, eyebrows and sideburns were visible, there was an abundance of evidence, particularly the testimony of Mrs. Katz, from which the jury could conclude that the masked robber was Charles Tomaiolo. Nirenberg and Tomaiolo forced the bank manager, two tellers, and a customer into the back room and they took $35,033.07 in cash and negotiable travelers checks totaling $6,290. They then made their getaway in the stolen Buick.

When Tomaiolo and Nirenberg returned to the rendezvous where Mrs. Katz was waiting in the blue Plymouth, they lift the stolen Buick in the bushes, changed their clothes and all three drove away in the Plymouth to the nearby home of Nicholas Tomaiolo. In their haste they had no time to remove the tell-tale license plates from the stolen car. Upon arrival at Nicholas Tomaiolo's they were seen by Mrs. Patricia Jennings who lived directly across the street. Here Tomaiolo, Nirenberg and Mrs. Katz got out and went into the house. The following lowing day, November 30, at Nirenberg's apartment, Tomaiolo and Nirenberg divided the loot after giving Soviero $140. Three days later Mrs. Katz delivered $200. more to Soviero for the men who had stolen the Buick. Of this $200. Soviero's nephews, Frank Labocetta and Vincent Boccia, each received $75. from Soviero.

Shortly after the robbery the machine gun was concealed at 70 East 92nd Street, Brooklyn, in the basement apartment of Salvatore Catapano. Sometime in December Nirenberg and Soviero moved the machine gun from one place to another in the apartment and finally when they lift New York for Florida in late January they took the machine gun with them in the trunk of Nirenberg's car.

Two months later, when Tomaiolo was taken into custody by the police on January 23, 1956 for a parole violation the nature of which does not appear, Nirenberg and Mrs. Katz moved to a Brooklyn hotel under an assumed name. The next day, they, together with Louis Soviero, left New York and drove to Miami and to Covington, Kentucky and finally to Buffalo, New York where they stayed under various assumed names at Nirenberg's expense.

On February 12, 1956, FBI agents arrested Soviero and Nirenberg in Buffalo. Mrs. Katz immediately became a government witness and after her testimony before the grand jury on February 21, 1956, Tomaiolo and Soviero were indicted together with Salvatore Catapano and Nirenberg. Catapano pleaded guilty to a count charging him with being an accessory after the fact. On the government's motion Nirenberg was tried separately and convicted and on appeal we affirmed the conviction, United States v. Nirenberg, 2 Cir., 242 F.2d 632, certiorari denied 1957, 354 U.S. 941, 77 S. Ct. 1405, 1 L. Ed. 2d 1539.

Tomaiolo complains particularly of five errors regarding the admission of evidence and the conduct of the trial: (1) his cross-examination as to certain parole violations as an attack on his credibility; (2) the cross-examination of his brother, Nicholas Tomaiolo, to show that the witness had claimed his Fifth Amendment privilege when questioned before the grand jury; (3) the cross-examination of Nicholas Tomaiolo regarding A.W.O.L. violations while he was serving in the Army; (4) the action of the District Judge in moving the trial some sixty miles to take the testimony of the government witness, Mrs. Patricia Jennings, in the basement of her home; and (5) the summation of the Assistant United States Attorney wherein he argued that Pauline Katz had told Maurice Edelbaum, Tomaiolo's attorney, that Tomaiolo was guilty and that this was the reason that Mr. Edelbaum refused to advise her.

Soviero complains of three errors: (1) the government's repeated allusions to his criminal record; (2) the action of the District Judge in compelling the witness Eileen Calvo to testify despite her claim of privilege under the Fifth Amendment, which claim of error we do not find necessary to discuss in view of our disposition of Soviero's appeal; and (3) the government's refusal to turn over certain Federal Bureau of Investigation reports to Soviero for purposes of cross-examination of FBI Agent Liddy, which we need not consider in view of 18 U.S.C.A. § 3500 recently enacted into law after the decision in Jencks v. United States, 1957, 353 U.S. 657, 77 S. Ct. 1007, 1 L. Ed. 2d 1103.

The Defense

Charles Tomaiolo took the stand in his own behalf and denied any participation whatsoever in the robbery or any knowledge of it. He stated that on the day of the robbery, November 29, he was at home suffering from ulcers and he produced witnesses to support his alibi - a woman who testified she was nursing his mother-in-law at the time and a friend of his mother-in-law. The testimony of the nurse was rebutted in part by the mother-in-law's doctor who was called by the government.

Charles Tomaiolo denied ever having been to his brother's home with Nirenberg and Mrs. Katz. He admitted that he had known Nirenberg since they had been in state prison together in about 1945, that he had met Mrs. Katz and that he had seen both Nirenberg and Mrs. Katz on numerous occasions.

In addition to this evidence, Charles Tomaiolo's brother, Nicholas, took the stand and testified that the appellant, Charles Tomaiolo, Nirenberg and Mrs. Katz had not visited his home on the evening of the robbery and that they had not borrowed his car. He testified that Nirenberg and Mrs. Katz had never visited his home although he admitted that they had come out to see him at his place of business to buy some coats.

Louis Soviero did not take the stand and called no witnesses in his defense.

I. Errors as to the defendant Charles Tomaiolo

A.The cross-examination of the defendant Charles Tomaiolo

Charles Tomaiolo complains that the Court permitted cross-examination about acts which he had allegedly committed while confined to prison for a previous offense, about acts in violation of the rules of the New York State Parole Board while he was on parole, and about his association with persons who had criminal records. In our opinion all of this evidence was erroneously admitted. We also find numerous other errors with respect to the conduct of the Assistant United States Attorney in cross-examining Tomaiolo, and with respect to the admission of evidence. We do not hold that any one of these errors by itself would require a reversal of Tomaiolo's conviction. What we do hold is that in the aggregate these errors made it impossible for the defendant to be fairly tried.

First, after Tomaiolo had testified on direct examination that in 1941 he had pleaded guilty to the robbery of a candy store, the Court permitted lengthy and needlessly detailed examination into the circumstances of the robbery. This included such details as how many people were involved with him, how he was apprehended, how many bullets he had in his pocket when he was arrested, and how many of his co-defendants were charged with armed robbery. This examination even went to the length of bringing out, over objection, that in the 1941 case Tomaiolo had been represented by Maurice Edelbaum, the same attorney who represented him at the trial.

We cannot see that any of this detail was relevant to the charge on trial; it went far beyond what was necessary to establish a criminal conviction for the purpose of impeaching credibility. Its obvious purpose and effect was to do more than to impeach defendant's credibility - it was intended to show that he was a dangerous criminal. Although the degree to which counsel may dwell on a particular point is within the discretion of the trial judge, it seems to us that here this discretion was not wisely exercised. People v. Slover, 1921, 232 N.Y. 264, 133 N.E. 633; People v. Hawley, 4 Dept. 1955, 285 App.Div. 1009, 139 N.Y. S.2d 489; Little v. State, 1945, 79 Okl.Cr. 285, 154 P.2d 772; see also People v. Du Byk, 1 Dept. 1955, 285 App.Div. 1025, 139 N.Y.S.2d 577, dissenting opinion. Compare Walker v. State, 1929, 151 Miss. 862, 119 So. 796; People v. Guiterrez, Cal.App.1957, 312 P.2d 291.

Further evidence was adduced, over objection, regarding the alleged robbery by the defendant of a gas station in 1941 and how much money had been stolen from the gas station.From this the questioning led to whether he had stated in a form made out many years later for the Waterfront Commission that he had robbed a gas station. In the first place, it was never shown what the defendant had stated on the form. Moreover, for this alleged crime, supposedly committed the same evening as the candy store robbery, defendant had not been convicted, and he denied any participation in such a crime. After such denial and in the absence of proof of conviction, it was error to permit further questioning about the alleged offense. United States v. Nettl, 3 Cir., 1941, 121 F.2d 927.

Secondly, the prosecutor asked a series of questions regarding Charles Tomaiolo's conduct during the nine years of his imprisonment on the 1941 charge. The prosecutor put a question whether a prison inmate whom he had allegedly beat up had gone to the hospital, and upon objection, this was withdrawn.

The Assistant United States Attorney then asked these questions, over objection:

"Q. Did you also burn up some furniture in your cell while you were there? A.No, sir.

"Q. Did they find you with a knife while you were there?

"A. No, sir.

"Q. Weren't you given 30 days punishment on July 31, 1942 for having a knife in your cell? A. No, sir. I had a permit for the knife."

Thirdly, the prosecutor offered, over objection, and the Court received, a copy of the General Rules Governing Parole issued by the State of New York Executive Department, Division of Parole, and this part of paragraph 4 was read to the jury:

"You must conduct yourself as a good citizen. This means that you must not associate with evil companions or any individuals having a criminal record; that you must avoid questionable resorts, abstain from wrongdoing, lead an honest, upright and industrious life, supporting your dependents, if any, and assuming towards them all your moral and legal obligations * * *"

The prosecutor also refered to paragraph 8 of the Rules Governing Parole which provided that operating an automobile without a valid license would be considered a violation of parole, a valid license being one secured only after permission had been granted. It was then brought out that the defendant had operated an automobile without such permission.

Fourthly, the prosecutor elicited, over objection, that Charles Tomaiolo had knowingly associated with persons who had previously been convicted of crime. After securing the defendant's admission that he knew that his friend, Fred Miller, was a convict, the prosecutor brought out that Miller had been convicted and sentenced to a term of 10 to 30 or 10 to 20 years in prison and that they had been in state prison together.

Following this the defendant was asked whether Vincent Soviero, Louis Soviero's brother, had been in state prison with him. This was objected to but the objection was overruled and the defendant answered that he had been in Auburn State Prison. On the ground that this was prejudicial to Louis Soviero, who was on trial, his counsel moved for a mistrial. Then there followed numerous questions regarding the Soviero family and it developed that the defendant had visited at Vincent Soviero's home and knew members of the Soviero family. The defendant admitted that he met Louis Soviero at a New Year's Eve party in 1955 at which his wife, Nirenberg and Mrs. Katz had also been present. The prosecutor then attempted to show that prior to this time the defendant had met Louis Soviero at the home of his brother Vincent. The defendant admitted that he had met other members of the Soviero family there but stated he had not met Louis there. This line of inquiry ended with this question and answer:

"Q. So you met Charlie there and you met his sister there and you met Vincent there, but you never met Louis there? A. Sir, he was in prison at the time."

Louis Soviero's counsel promptly moved for a mistrial which was overruled by the District Judge who at the suggestion of the prosecutor instructed the jury to "[disregard] the last statement."

The prosecutor then attempted to show that the defendant was acquainted with another convict named "Charlie Whoppy." In the colloquy which followed, the prosecutor, in an attempt to justify going into these matters, stated that it was a misdemeanor to associate with criminals. Tomaiolo's counsel took immediate exception to this pointing out among other things that the prosecutor as a former Assistant District Attorney of Kings County should have known better. After a ten minute recess, requested by the prosecutor, and a discussion before the Court off the record, the Court ended this line of examination by merely stating that under the New York Penal Law (McK.Consol.Laws, c. 40) associating with people who have a criminal record is not a crime or a misdemeanor. No instruction was given at this time or in the Court's charge to the effect that this evidence regarding association with criminals should be entirely disregarded. The District Judge merely said in a supplemental charge: "These alleged violations of parole regulations * * * may not be considered as affecting [Tomaiolo's] credibility * * *" Of course this implied that this testimony did have some relevance, and it may well have aggravated the damage to the defendant.

The evidence about breaches of alleged prison discipline, about friendships with people with prison records, and about alleged parole violations should not have been admitted.

It was of course proper for the government to inquire into the defendant's relationship with Louis Soviero and to develop the defendant's acquaintance with the Soviero family to show that he must have known Louis at the time of the robbery. The defendant admitted knowing Vincent Soviero. But no proper purpose was served by bringing out the fact that Vincent Soviero had a criminal record, for it was not necessary to do so to establish their acquaintance. Moreover, the prosecutor led into this subject by inquiring whether the defendant had met Vincent Soviero when he was in prison. This was unnecessary and it was most prejudicial to defendant Tomaiolo as it was followed by other questions designed to show that he kept company with persons who he knew had been convicted of crime. That he kept such company was not relevant on the question of Charles Tomaiolo's credibility.It was not a crime.

Even if keeping such company was a violation of the terms of the defendant's parole, such a violation was not an offense relevant to his credibility. Cf. United States v. Provoo, 2 Cir., 1954, 215 F.2d 531, 536; Henderson v. United States, 6 Cir., 1953, 202 F.2d 400, 405.

The government now argues, however, that Tomaiolo by reason of the reference to his parole in the opening statement of his attorney and by his own supporting testimony, had in effect put his character in issue and that the cross-examination regarding parole violations was therefore permissible.

But it is clear that the opening statement of counsel for the defendant could not have put the defendant's character in issue. Such a statement has no evidentiary value, and therefore does not call for or justify cross-examination or rebuttal evidence. An instruction from the Court or argument of counsel is sufficient correction, not the introduction of otherwise inadmissible evidence.

Nor did the defendant by testifying put his general character in issue. By taking the stand the defendant elected to be treated as any other witness, viz. he laid his credibility open to attack. Although a prosecutor may bring in evidence as to the truth and veracity of a defendant upon cross-examination, he is not at liberty to attack his general character. The general character of a defendant is put in issue only when he calls witnesses to testify to his reputation in general. Michelson v. United States, 1948, 335 U.S. 469, 476 et seq., 69 S. Ct. 213, 93 L. Ed. 168; Richardson, Evidence § 154 (8th Ed. 1955 Prince). The testimony of the defendant about his parole, and the circumstances thereof, did not "open the door" for the prosecutor's questions. United States v. Provoo, supra, 215 F.2d at page 535. In the Provoo case, we held that cross-examination regarding the defendant's confinements in army stockades and hospitals, which the government brought out were due to his homosexual aberrations, constituted reversible error, even though on direct examination the defendant virtually told his life story including the fact of these confinements.

For the same reasons, questions regarding offenses against prison discipline during the defendant's nine year incarceration from 1941 to 1950, for which there had obviously been no separate conviction, and which were not felonies or crimes involving moral turpitude, should not have been permitted.

Fifth. Further along the prosecutor attempted to elicit from the defendant what he had told his counsel and his wife and when he had first made disclosures to them particularly with respect to where he was on November 29. These questions were pressed to the point of compelling the defendant's counsel several times to advise the defendant that these were privileged communications, thus making it appear to the jury that evidence which might be damaging was being kept from them. By repeatedly asking these questions before the jury and attempting to place the defendant in a false light by compelling him to claim the husband-wife and the attorney-client privileges, the prosecutor deliberately and improperly prejudiced the defendant's position. It was error for the District Court to permit such repeated questioning and colloquy before the jury.

Lastly, the prosecutor in the course of inquiring into why an automobile had been registered in the name of the defendant's wife, inquired into and pressed questions regarding the nature of family troubles of the defendant's brother-in-law. Although counsel objected on the ground that family trouble of a brother-in-law was going somewhat far afield, the Court overruled the objection and permitted further questions. While this was probably so meaningless as to be innocuous it shows how far into irrelevancy the prosecutor was permitted to roam.

In summary, by receiving this mass of inadmissible, irrelevant and highly prejudicial testimony, the District Court permitted the prosecution to paint the defendant Tomaiolo as a bad man, associating with criminal companions, who would do most anything. The accumulation of these errors made it impossible for the jury to limit its consideration to the charges for which Tomaiolo was being tried, and, in sum, they constitute reversible error.

B. The impeachment of Nicholas Tomaiolo

To bolster his defense, Charles Tomaiolo also called his brother, Nicholas, who testified that he had never lent his car to Nirenberg and that neither Mrs. Katz nor Nirenberg had ever been to his home. The importance of Nicholas Tomaiolo's testimony is obvious. Had the jury believed Nicholas Tomaiolo, they would have had to reject some of the testimony of Pauline Katz, the most important government witness linking Charles Tomaiolo with the robbery and identifying him as Nirenberg's confederate, as well as the testimony of Mrs. Jennings. We find that the government's attempts to impeach Nicholas Tomaiolo were improper in two aspects.

1. The grand jury testimony

Over two months after his brother and the others had been indicted, a period during which the FBI had repeatedly and unsuccessfully sought signed statements from Nicholas Tomaiolo as to the identification of the defendants and Nirenberg, and the alleged loan of his car, Nicholas Tomaiolo was called before the grand jury. On the advice of counsel, who was also counsel for his brother Charles, he refused to answer the questions noted in the margin on the grounds of possible self-incrimination.*fn1

At trial, however, Nicholas Tomaiolo testified freely. His story in no way incriminated him; on the contrary he claimed to be innocent of any wrongdoing. On cross-examination the government was allowed, over objection, to bring out that he had refused to testify about the robbery before the grand jury. The government presents two arguments in support of the introduction of the witness' refusal to testify, neither of which we find tenable.

The government first argues that because Nicholas Tomaiolo's testimony at the trial did not incriminate him but rather pointed only to innocence, the prior refusal to testify on grounds of self-incrimination was inconsistent with this, and that this alleged inconsistency may be pointed out to attack Nicholas Tomaiolo's credibility.

Although at first glance, this argument seems not unreasonable, the recent decision of Grunewald v. United States, 1957, 353 U.S. 391, 415-424, 77 S. Ct. 963, 1 L. Ed. 2d 931, stresses that such claims of inconsistency are not to be lightly accepted. Insofar as guilt or innocence is concerned, it is clear that claiming the privilege does not imply any guilt which would be at all inconsistent with later protestations or indications of innocence. Grunewald v. United States, 353 U.S. at page 421, 77 S. Ct. at page 982; Ullmann v. United States, 1956, 350 U.S. 422, 426, 76 S. Ct. 497, 100 L. Ed. 511. See also Slochower v. Board of Higher Education, 1956, 350 U.S. 551, 557-558, 76 S. Ct. 637, 100 L. Ed. 692. Insofar as the prior blanket claim of possible incrimination as to all questions is asserted to be inconsistent with subsequent non-incriminatory testimony, it seems to us that in the circumstances of this case, there was no real inconsistency.

Nicholas Tomaiolo was called before the grand jury as the brother of a man already indicted for robbery and as a person who knew he might be implicated to some extent. The FBI had sought statements from him regarding his acquaintance with Nirenberg, Charles Tomaiolo and Mrs. Katz, and about whether he had loaned his car to them on the day of the robbery. With that background, a reasonable choice was to refuse to testify in a grand jury proceeding where he

"* * * was a compelled, and not a voluntary, witness; where he was not represented by counsel; where he could summon no witnesses; and where he had no opportunity to cross-examine witnesses testifying against him. These factors are crucial in weighing whether a plea of the privilege is inconsistent with later exculpatory testimony on the same questions, for the nature of the tribunal which subjects the witness to questioning bears heavily on what inferences can be drawn from a plea * * * Innocent men are more likely to plead the privilege in secret proceedings, where they testify without advice of counsel and without opportunity for cross-examination, than in open court proceedings, where cross-examination and judicially supervised procedure provide safeguards for the establishing of the whole, as against the possibility of merely partial, truth." Grunewald v. United States, 353 U.S. at pages 422-423, 77 S. Ct. at page 983.

Moreover, where a witness has a reasonable belief that he may be a defendant himself, which belief Nicholas Tomaiolo could justifiably have entertained, it is perfectly consistent with innocence and with nonincriminatory answers to particular questions to refuse to answer any question at all. Id., 353 U.S. at page 423, 77 S. Ct. at page 983.

Thus, we conclude that the fear of incrimination before the grand jury was quite understandable and that the non-incriminatory responses to the particular questions asked at the trial were not inconsistent with the claim.

On the other hand, the introduction of this evidence was bound to affect adversely the jury's estimate of Nicholas Tomaiolo's credibility. Introducing the grand jury testimony would almost certainly lead the jury to think that Nicholas Tomaiolo claimed the privilege before the grand jury because he was somehow connected with the robbery, for that is the almost inevitable result of the claim of the Fifth Amendment. Since the only alleged connection presented to them was the loan of his car and its return to his house after the robbery,*fn2 the jury was led to believe that he must have been lying at the trial when he denied those allegations. But, as noted, given the background of the investigations by the grand jury and the FBI, his refusal to answer any questions before the grand jury was understandable even though he may have had no connection at all with the robbery. It thus seems to us that "in the particular circumstances of this case the cross-examination should have been excluded because the probative value on the issue of * * * credibility was so negligible as to be far out-weighed by its possible impermissible impact on the jury." Grunewald v. United States, 353 U.S. at page 420, 77 S. Ct. at page 982, especially in view of the importance of this witness to the defense, and the fact that he was the defendant's brother.

The government's other contention is that, assuming Nicholas was innocent of wrongdoing, his claim of privilege in the grand jury was a wanton misuse of the privilege and that such an abuse may be ...

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