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United States v. Franzese

decided: March 25, 1968.

UNITED STATES OF AMERICA, APPELLEE,
v.
JOHN FRANZESE, ALSO KNOWN AS "SONNY," WILLIAM DAVID CRABBE, ALSO KNOWN AS "RED," JOHN MATERA, ALSO KNOWN AS "JOHNNY IRISH," NICHOLAS POTERE AND JOSEPH M. FLORIO, ALSO KNOWN AS "WHITEY," APPELLANTS



Friendly and Smith, Circuit Judges, and Gignoux, District Judge.*fn*

Author: Friendly

FRIENDLY, Circuit Judge.

Five defendants, Franzese, Crabbe, Matera, Potere and Florio, appeal from convictions, after a verdict, in the District Court for the Eastern District of New York on two counts of an indictment, returned in April, 1966, charging robbery of two federal savings and loan associations on Long Island by placing lives in jeopardy in violation of 18 U.S.C. § 2113(d), a count for receiving currency and travelers' checks taken from a bank in Utah whose deposits were insured by the Federal Deposit Insurance Corporation in violation of 18 U.S.C. § 2113(c), and a count for conspiring to engage in bank robberies in violation of 18 U.S.C. § 371.*fn1 A chart in the margin shows the counts on which various defendants were convicted and the sentences imposed -- some being very heavy ones.*fn2

The prosecution had some unusual aspects, of which defendants have properly made much both at trial and on appeal. None of the appellants is claimed to have been present at any of the bank robberies here charged. The Government's case against them rested almost entirely on the testimony of four confessed participants -- Smith, Parks, Cordero and Zaher -- who cast the defendants in the role of behind-the-scenes operators of a nationwide bank robbery business.*fn3 Franzese was the general manager; Potere was the procurer and explicator of plans of the banks and took general charge of logistics; Florio assisted in these operations and in weapon procurement; and Matera and Crabbe played lesser parts. What is more troubling is that three of the Government witnesses -- Smith, Parks and Zaher -- had previously depicted Anthony Polisi, owner of the Aqueduct Motor Inn in Queens, as the master-mind of the same enterprise and had so testified in a trial in January, 1966, wherein Anthony and his son Salvatore were convicted, in contrast to the testimony of Smith, Parks and Cordero at the instant trial that Anthony's services after mid-July, 1965, were in storing weapons and furnishing a meeting place. This was substantially what Cordero, who had not been called as a witness against the Polisis, had said in statements to the FBI shortly after his arrest on September 30, 1965.*fn4

While the testimony of the four participants was exceedingly detailed and circumstantial -- indeed therein lay its strength -- we shall state only so much as constitutes necessary background for the legal contentions raised on appeal: The quartet, dissatisfied with Anthony Polisi's management, were summoned to a meeting at the Aqueduct Motor Inn on an evening in late July, 1965, attended by all five appellants. Franzese announced that he was taking over, on a 50-50 basis, and that work orders would be issued by his four associates from time to time. Matera added that the arrangements included money for bail and for lawyers in the event of arrest, but that "ratting on anybody is completely out of the question because we will get you." Franzese confirmed the former comforting assurance and made known that his services included the stealing of cars to be used in the robberies and that, after a reasonable period of success, the robbers could cease their robbing and he would act as an investment counselor for them.

Another meeting occurred toward the very end of July. At the first phase, attended by Potere, Florio and Cordero, Franzese announced the acquisition of plans of five banks, including the Queens and Oceanside banks the later robberies of which were charged in substantive counts of the indictment. These plans had been supplemented with an indication of the get-away route and the location for the cars to which the robbers would switch after abandoning the get-away cars. There were renewed assurances about bail and lawyers and confirmation of the financial split. Later the participants other than Franzese adjourned to the Aqueduct Motor Inn, met with Parks, Smith and Anthony Polisi, and arranged for all but Polisi to reconnoiter the five banks the next day. After a dress rehearsal conducted by Florio in which the get-away driver, Anne Messineo, was introduced, Cordero, Parks and Smith robbed the Queens County Federal Savings and Loan Association on July 30, 1965, with disappointing results due to their failure to enter the vault. After a similar prelude the trio robbed the United States Savings and Loan Association in Oceanside, Long Island, on August 13, 1965, again with less than spectacular success.

We pass over activities planned for banks in Massachusetts, leading to the robbery of the Holyoke National Bank in Chicopee, accomplished on August 31, by Smith, Parks and Cordero, again without entering the vault, wherein Smith's girl friend Carol Scalzo and Salvatore Polisi played supporting roles. Early in September, Franzese directed that activities be transferred to Denver and Salt Lake City, Cordero was to take his wife and Smith was to take Carol. Crabbe, who now reappeared, asked leave to go along, but Franzese declined because of needing him closer to home. After the kind of contretemps happily characteristic of such ventures, the two couples and Parks arrived in Denver behind schedule, the men robbed the bank on a Saturday rather than the appointed Friday for the truly meagre haul of $300, and all proceeded to Salt Lake City. Monday brought better luck there -- $33,000 in cash and some travelers' checks. Desire of the robbers to alter the agreed split led to a meeting between them and Franzese, Florio, Matera and Crabbe at the Skyway Motel in Queens. Florio told Franzese the trio had offered only $6000 plus the travelers' checks as his share. Crabbe counted the cash; Matera examined the checks, assured Franzese there would be no trouble in getting rid of them, and put them in his pocket. Somewhat surprisingly, Franzese did not cavil overmuch at the unilateral change in terms, although taking a sterner tone for the future. There was talk of California and some preliminary observations were later made on Long Island and in Brooklyn, but time was running out for the four robbers. Parks and Smith were arrested on September 30, Cordero on October 1, and Zaher, whom Matera had warned not to be around, on October 8. The promised immediate succor was not forthcoming, save as indicated in footnote 3 and for payments of $200 by Anthony Polisi to Zaher and of $50 by Potere to Smith.

Sufficiency of the Evidence

Matera and Crabbe are the only appellants to challenge the sufficiency of the evidence, and they do this solely with respect to Count 7 for receiving property stolen from the Utah bank. The evidence of their activities at the division of the loot meeting was sufficient for submission to the jury, particularly when this is taken in the light of evidence that we have recounted and of more that we have not. In any event the point is immaterial in view of the concurrent sentence on the conspiracy count. Lawn v. United States, 355 U.S. 339, 359, 362, 78 S. Ct. 311, 2 L. Ed. 2d 321 (1958). We likewise reject Matera's argument that the court committed reversible error in refusing to charge he was entitled to an acquittal if the jury believed testimony adduced by him to show that he was sojourning with his wife and a Mr. and Mrs. Scotto at a resort in the Poconos from July 17 to July 24 -- a period including the date of the organization meeting which, along with the meeting on the robbers' return from Salt Lake City, constituted his sole proven participation in the crimes. The judge had properly instructed as to reasonable doubt and the jury manifested its realization of the importance of the alibi evidence by asking for a rereading of the direct testimony of Mrs. Matera, Mrs. Scotto and a Mrs. Principe, a friend who had also been at the resort. Having heard these witnesses, the jury evidently chose not to credit them.*fn5 That was its prerogative.

The Government's Rehabilitation of Its Witnesses

The point most strongly pressed concerns the extent to which the Government was allowed to rehabilitate its witnesses after impeachment based on their failure to mention the defendants in statements given the FBI on their arrest and their testimony before the grand jury which indicted the Polisis and at the Polisi trial. The problem first arose in the case of Smith, the Government's lead witness. In his grand jury testimony against the instant defendants, which had been furnished defense counsel before he took the stand, Smith had been asked to account for the discrepancy between it and his failure to include the defendants in the information previously given the Government and his testimony in the Polisi proceedings. He answered:

"Because, as far as I was concerned, I was ready to go and take my just punishment. They would look out for my family and put up the bail money, and try and get me back out. And they just didn't do it, you know, they forgot all about it. And I felt I didn't owe them nothing no more."

Appellants hammered away at Smith on the basis of his long failure to include them in his list of culprits and his fixing of managerial responsibility in the elder Polisi, see fn. 4.

The Government then made known to the court that it proposed to rehabilitate Smith by showing that his previous silence as to the defendants was due to fear. After requesting counsel to prepare memoranda over a weekend, Judge Mishler said that his own search had led him tentatively to conclude that a witness may explain an inconsistency on the basis of fear even if his doing so imparts evidence of another crime, but that the trial judge has an obligation to allow "only so much * * * as will explain his fears" and to "exclude any other matter that * * * will lead the jury away from these issues and in effect decide the character or other crimes ...


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