Before LUMBARD, Chief Judge, and SMITH and MARSHALL, Circuit Judges.
J. JOSEPH SMITH, Circuit Judge.
Appellants Persico, Albanese, McIntosh, Spero and LaFante and one Magnasco were tried to a jury in the Eastern District of New York, Mishler, J., on two counts of obstructing the movements of goods in interstate commerce by armed robbery, the hijacking of a truck carrying piece goods, and conspiring to do so in violation of 18 U.S.C. § 1951. the Hobbs Act. On May 13, 1961 the jury disagreed. Some three weeks later the defendants were tried before a second jury, Matthew T. Abruzzo, District Judge, presiding. Persico, Albanese, McIntosh, Spero and Magnasco were found guilty on both counts, LaFante on the conspiracy count only. Prior to the date set for sentencing, Magnasco was shot and killed. The others all were sentenced to terms of imprisonment, Persico for 15 years concurrent on both counts, Albanese 10 years concurrent on both counts, McIntosh 10 years concurrent on both counts, Spero 10 years concurrent, LaFante 5 years on Count 2. All appeal. The principal grounds for appeal are claimed prejudicial conduct of the trial, prejudicial summation of the Assistant United States Attorney, and conviction on the uncorroborated testimony of an accomplice and coconspirator. We reluctantly conclude that the first two grounds are well taken, and reverse and remand for new trial.
The Government's case was based primarily on the testimony of one Vaccaro, an alleged coconspirator and that of one Kennedy, employee of Akers Motor Lines and driver of the hijacked truck.
Vaccaro testified that on July 27 and 28, 1959 he was in a bar in Brooklyn not far from the Akers Terminal, with Persico, McIntosh, Spero, Albanese, Magnasco and LaFante, and that it was there planned that a truck carrying piece goods should be held up and taken to LaFante's garage. Vaccaro was to spot a truck with piece goods loading at Akers Terminal, then with Albanese to get a Buick car previously stolen, Albanese, Spero and Vaccaro to follow the truck and when feasible kidnap the driver, Spero to drive the truck to LaFante's garage, Albanese and Vaccaro to drive the truck driver around in the Buick until notified that the theft had been completed, McIntosh to rent a truck to which the goods could be transferred at LaFante's garage, Persico, planner and director of the operation, to be at the garage to assist in the transfer. Magnasco was to be called when the hijacked truck was unloaded and abandoned and was to notify Vaccaro and Albanese when they telephoned in, so that they might release the truck driver. According to Vaccaro, the plan went off as scheduled so far as his knowledge went and the proceeds of the sale of the goods were divided among the seven conspirators.
Kennedy, an obviously reluctant witness, testified to the holdup, kidnapping and ride in the Buick until released, but claimed that because of the use of taped glasses which the kidnappers required him to wear he was unable to identify the hijackers.
Vaccaro had been convicted in 1940 of possessing and uttering counterfeit money, receiving a suspended sentence and probation, in 1942 of robbery, receiving a sentence of seven to fourteen years, released on parole after four years and ten months, in 1947 of robbery, receiving a sentence of two to three years and revocation of parole on the 1942 sentence. He served until November 27, 1957. In February, 1960, he was in jail awaiting trial on state charges of robbery and other crimes. As a result of a conversation between Vaccaro and another jail inmate, Vaccaro was visited by FBI agents. Vaccaro at first denied knowledge of the Akers holdup. After being told he faced a possible life sentence if charged a subsequent offender, but could help himself, and specifically that the FBI would make known to the officials that he was a Government witness and very cooperative and that a member of the United States Attorney's office would so inform the state judge before whom he was to be sentenced, Vaccaro agreed to disclose what he knew of the Akers hijacking and testify concerning it.
The Government's case rested entirely upon the uncorroborated testimony, inconsistent with his earlier testimony in some respects, of an accomplice and coconspirator who had the strongest possible reasons to become a Government witness. We must therefore scrutinize any claimed error with extreme care since there is grave possibility of prejudice to the defendants in a case such as this by error which might in other circumstances be deemed relatively minor. Glasser v. United States, 315 U.S. 60, 67, 62 S. Ct. 457, 86 L. Ed. 680 (1942).
The Assistant United States Attorney made several improper arguments during his summation. We consider it unfortunate in the extreme that counsel chose to misstate the facts and attempt to place before the jury matters not in evidence. United States v. Pepe, 247 F.2d 838, 844 (2 Cir., 1957). At one point in his summation he argued that the government did not call Andrew Russo as a witness because he was Persico's cousin. While no objection was made on the grounds that there was no evidence in the record as to any such relationship, it was tantamount to the prosecutor's testifying. Of more significance is counsel's repeated misstatement of the facts in asserting that there was actual evidence that the truck had been taken to LaFante's garage (stenographer's minutes 1092, 1144, 1145). While it is true that there was evidence from which the jury could properly have inferred that the truck was in fact taken to LaFante's garage to be unloaded, there was no direct evidence of this fact. For the prosecutor repeatedly falsely to summarize the testimony was highly prejudicial and the defendants' failure to object must be viewed in the light of Judge Abruzzo's repeated insistence that defense attorneys should cease making frivolous objection, or in fact any objections with respect to the prosecutor's summation of the facts until the summation was concluded.
Apparently determined to expedite the trial and avoid erroneous references to inadmissible matter by keeping a tight rein on counsel, because of a belief that a third trial would be impossible, the Court defeated its purpose by early embroilment with counsel. The judge's repeated recriminations and displays of temper towards defense counsel could not have helped but prejudice the jury. At the very outset of the trial, during the opening statements of defendant's counsel, a wholly unnecessary series of interruptions resulted from the judge's attempt to limit the opening statement to the facts which counsel intended to prove on direct examination. The ruling that counsel could not refer to facts he intended to prove by cross-examination was particularly erroneous in view of the fact that such information had been so obtained at the first trial. The interruptions and ensuing colloquies between the judge and counsel before the jury were particularly damaging because they were primarily related to statements concerning Vaccaro's credibility and possible motivation to bear false witness. The undoubted effect was to convince the jury that the trial judge was unimpressed by the attacks upon Vaccaro's credibility. It is true that the judge gave what he considered a "hard" charge on Vaccaro's credibility, but we cannot find that it erased the effect of the earlier restrictions on counsel's probing of the question. An example of the trial situation which developed is the exchange which occurred while Lewis, counsel for the defendant Albanese, was cross-examining Vaccaro.*fn1
Cross-examination of Vaccaro was of course the principal recourse of the defense. The worse his history the more likely that extremely heavy sentences were facing him, and the more he needed help from the prosecution in this case. And of course counsel was entitled to show not only sufficient to induce the judge to charge on credibility, but also any facts the jury might find likely to affect the probable sentence of the witness and so his motive to falsify. The power of the judge to place a limit on cumulative evidence must be used sparingly in such a situation.
During the opening statement the judge asked Spero's counsel whether character witnesses would be produced. When Spero's turn to present evidence came the judge asked whether counsel intended to put on any witnesses. The answer being in the negative the court then stated: "You are going to rest without calling any witnesses." Counsel replying that was so, the Court added: "All right, so be it." This was an unnecessary and improper comment upon the defendant's failure to take the stand or call any character witnesses.
Judge Abruzzo's comments during the prosecutor's summation could not but make it appear to the jury that the lawyers, as well as the defendants, were on trial. The judge repeatedly stated that defendants' counsel were making "facetious" and unfounded objections. In the first place we think if defense counsel act improperly they should be dealt with by sharp reprimand outside of the hearing of the jury or if necessary by use of the contempt power. In the second place, the objections were not entirely groundless, especially in view of the Assistant United States Attorney's proclivity to misstate and overreach the facts.
While the judge has an active role to play in the search for truth through the trial process, he must take great pains to avoid giving the jury an impression that he is partisan. United States v. DeSisto, 289 F.2d 833 (2 Cir., 1961). Although the court was at times provoked by defense counsel that is no justification for allowing the trial to become a running battle between the court and counsel before the jury. And improper conduct of counsel is not to be remedied by revocation of his ...