Medina, Hays and Anderson, Circuit Judges.
Thomas Callahan and Thomas Kapatos appeal from convictions for conspiring to rob a bank money truck in violation of 18 U.S.C. Section 371 (1964) and for transporting a stolen automobile in interstate commerce in violation of 18 U.S.C. Section 2312 (1964). Each of the appellants was sentenced to consecutive five-year terms on each count. The grand jury had returned a nine-count indictment against Callahan and Kapatos, but most of the charges were dismissed for lack of venue and one for failure of proof.
On December 21, 1964 at Paterson, New Jersey, four armed men made off with over $500,000 in United States currency that was being transported in a panel truck of the First National Bank of Passaic County, the deposits of which were insured by the Federal Deposit Insurance Corporation. Not a penny of this large sum has ever been recovered. The robbery was planned with such meticulous attention to detail that the robbers made their escape leaving behind only the handcuffs and pieces of cord used to truss up the guards and others. The task of solving this crime was one of unusual difficulty but, as a result of several years of persevering investigation, the bits of evidence pieced together at the trial furnished a firm basis for the finding of the jury that both Callahan and Kapatos were beyond a reasonable doubt guilty of the crimes charged.
We are asked to reverse and to dismiss the indictment or to remand the case because of numerous errors alleged to have been committed by Judge Murphy in his rulings at the trial. Some of these claims of error we pass over as clearly lacking in merit. Others can only be understood when viewed against the background of a most complicated aggregate of various detailed proofs, to which appellants' briefs make only passing reference, and which are woefully scrambled in the Government's answering brief. After these items of proof have been pieced together in proper perspective, we believe the points of law will be more readily understood.
Callahan is enlarged on $100,000 bail pending the disposition of this appeal. Kapatos is serving a seven and one-half year sentence on an earlier conviction in the Southern District of New York for armed theft of an interstate jewelry shipment, to which further reference will be made later.
The Development of the Conspiracy and How It Resulted in the Robbery at St. Anthony's Rectory on December 21, 1964
The Market Diner near Pier 90 at West 51st Street in New York City was a sort of gathering place for men who more or less worked in the neighborhood. The individuals with whom we are concerned in this case are Thomas Callahan, Frank Campbell, Thomas Kapatos, John Pierce, Henry Speditz -- all named as defendants in the indictment -- and Charles Roberts, a member of the conspiracy to rob the bank's money truck, who testified for the Government. Most or all of these men had served terms of imprisonment for the commission of crimes of violence, possession of firearms and the stealing of automobiles.
Roberts, who had known Callahan, Campbell, Kapatos, Pierce and Speditz for many years, testified that Pierce, who worked on Pier 90, came to him in January or February, 1964, and said he had discovered a "score" or opportunity to obtain a large sum of money by robbing a bank money truck in Paterson. The two men then proceeded to Paterson in Pierce's car, which was "clean." This meant it was not stolen but was legally owned by Pierce. They surveyed the terrain, became familiar with the route taken by the money truck on Mondays as it delivered bags of curency from the main office to the various branch banks, and returned confident that the scheme to rob the money truck was feasible. They had looked in the money truck and had seen the bags. Pierce even went right into the main office of the bank and saw the bundles of currency put in the bags. So they knew money was in the bags. It was noted that a simple panel truck, rather than an armored car, was used, and there were only two guards. Then Campbell joined the others in the venture, and Pierce suggested they bring in his friend Kapatos who was said to possess several garages in New Jersey, in one of which he had a stolen car loaded with all the equipment and paraphernalia that would be needed in the robbery, such as a machine gun, pistols, Army clothes and field jackets and so on. There were several further trips in Pierce's car to reconnoiter the Paterson area and Kapatos liked what he saw. It was he who suggested the plan originally adopted.
This first plan was to intercept the money truck as it followed its regular Monday route on a street with an open lot on one side and a long factory with high dingy windows on the other. There were intersecting streets before and after passing the factory block. Kapatos's plan was to have a stolen station wagon drive in front of the money truck, slow it down, and then Kapatos, lying on the floor of the station wagon, was to drop the rear window and point his machine gun at the guards in the money truck a few feet behind. Another stolen car with a driver was to lie in wait in one of the side streets while the two other men approached the money truck from either side and overpowered the guards. Then the driver of the second car was to come up behind the money truck to take the loot.
It was apparent that this scheme required a fifth man, and Kapatos brought in his friend Callahan, who said "If Kapatos likes it, I like it." This was in late March or early April of 1964. After further driving around Paterson in Pierce's car, renting a store which they could use as a place of refuge if things went wrong and a small private garage "underneath a house" in which to keep a stolen car, the five men met in New York to discuss what to do next. After some talk it was agreed by all that it was necessary to steal a station wagon and "each and every one of us was to be on the alert in regards to stealing a station wagon." Within a week Kapatos phoned Roberts at his home in Astoria and said he had stolen a station wagon outside of the Copacabana night club in New York City, and for "the rest of us" not to bother about it. He described it to Roberts as long, having lots of windows, a light blue or light green Oldsmobile, with an air conditioning unit in it. It turned out to be a 1962 Mercury. So Kapatos brought the stolen station wagon to Pier 90, and he and Roberts, together with Campbell and Pierce, changed the plates in the street and the four men started for New Jersey. Kapatos drove the station wagon and the others followed in Pierce's car. The time of this is given by Roberts as "some time in April of 1964." On the way out to Paterson they stopped at Fort Lee where Kapatos lived in an apartment house. Upon arrival in Paterson the stolen station wagon was placed in the little one-car garage they had previously rented, and all four returned to New York in Pierce's car.
We pause for a brief digressio, as this station wagon will become one of the important links in the chain of proof corroborating the testimony of Roberts. We shall in a moment review Robert's description of two abortive attempts to rob the money truck in the street alongside of the factory. Roberts participated in these two abortive attempts and then he and Campbell retired from the conspiracy. Until Roberts told his story to the FBI several years after the spectacular robbery at St. Anthony's Church Rectory on December 21, 1964, neither the FBI nor anyone in the prosecutor's office investigating the crime had ever heard of any station wagon, as no station wagon played any part in the robbery at the Rectory. Roberts's recital of the facts concerning the first two abortive attempts, however, gave the FBI for the first time his statement that "some time in April" 1964 Kapatos had stolen a station wagon, containing an air conditioning unit, from the street near the Copacabana in New York. So, upon further investigation it was discovered the police record indicated that such a station wagon had been reported as having been stolen at the Copacabana on April 18, 1964. And a member of the police force of East Paterson testified this station wagon was found abandoned in the extreme westerly corner of a parking lot at the Elmwood Shopping Center, near Paterson on Route 4, on July 25, 1964. The owner, Edward Lebowitz, was located and he confirmed the fact that the car was stolen at the Copacabana on April 18, 1964. And this very parking lot at the Elmwood Shopping Center was the place where Roberts had said the robbers switched cars at the time of the two abortive attempts to rob the money truck. That Roberts could have manufactured out of whole cloth the story about the station wagon with an air conditioning unit stolen from the Copacabana and then have it all fortuitously come true strains credibility far beyond the breaking point.
It requires no more than a few sentences to describe the two abortive attempts in the Spring of 1964. Five men participated in each of these two attempts, including Roberts. They drove out to Paterson in Kapatos's "clean" Oldsmobile after picking up Kapatos's stolen Buick at his garage in West New York, N.J. with all the equipment. At the Elmwood Shopping Center they left the "clean" car, then in the stolen Buick they proceeded to the garage "underneath the house" where Campbell and Kapatos picked up the stolen Mercury station wagon. Callahan and Roberts were at their respective stations in the factory street, while Pierce sat waiting in the stolen Buick, but the money truck went by and no Campbell and Kapatos in the stolen station wagon. They arrived in a minute or two and said Kapatos thought a police officer was observing them and he called the deal off. On the next abortive attempt two weeks later they did the same thing but Campbell made a wrong turn and the money truck went by. This led to an explosive scene with Kapatos heaping abuse upon Campbell and generally making himself objectionable. So Roberts and Campbell pulled out of the conspiracy. But the others urged them from time to time to return, which they refused to do. Another incident that might have contributed to this split-up was a conversation about four new hand guns Kapatos had received from Boston. He said they were of superior quality and should be used in the robbery in Paterson. Callahan violently disagreed on the ground that if any of them was picked up with one of these guns in his possession it might be identified as having been used in some robbery in Massachusetts and then they would be in real trouble. The rest agreed with Callahan. Campbell died of a heart attack on October 4, 1964.
We must reconstruct the actual robbery on December 21, 1964 from the proofs of what occurred and by piecing together the testimony of various witnesses. A change in the regular Monday route of the money truck now called for a few stops to pick up the receptacles containing the Sunday collections of several churches, and then stops at various branch banks to drop off the bags of currency that had been requisitioned from the main office. The robbers no longer needed the machine gun or the Mercury station wagon, and so this car was abandoned in the parking lot at the shopping center in July. But the robbers still needed two stolen cars, as we shall see.
The plan of St. Anthony's Church Rectory (Gov't Exhibit 1) shows the entrance door from the street leading to a group of small waiting rooms and an office. There is a passage on the left providing access to and from the Church. As the Church was open to the public, it was a simple matter for these professionals, even with their equipment, to enter the Church, go up the passage and congregate in the vestibule behind the entrance door at about 8:50 A.M., precisely the time they expected the money truck to arrive. Several priests and a caretaker, who was the father of one of the priests, arrived there too, but they were quickly handcuffed, their legs tied and a strip of tape placed over the mouth of a priest who cried out. Each of the three robbers in the vestibule had a pistol. The panel truck pulled into the driveway of the Rectory, the two guards came to the door and rang the bell. The doors were flung back and the guards were handcuffed, their legs tied and they were pushed to the floor with their faces to the wall in less time than it takes to tell about it. One of the robbers pointed his pistol at the guard who had the key to the back and only entrance to the body of the panel truck, and the robber said "Give me the key or I'll blow your brains out." The key was forthcoming and the robbers rushed out. In the meantime, the fourth robber, who had been driving nearby in a black Chevrolet sedan, pulled up alongside the money truck and the transfer of the money bags from the panel truck to the black Chevrolet sedan was quickly effected. Nor were the receptacles containing the Sunday collections at St. John's Cathedral, St. Boniface Church and that of St. Anthony's Church itself left behind by the robbers. These collections brought the total loot to $517,721.49. The men who had been handcuffed and tied up said the robbers wore face masks, cloth gloves, shiny rubbers, two pairs of trousers each and Army jackets. Sister Olympia, one of the nuns who lived in the Convent on the other side of the Church, was slowly passing in a car with Mrs. Bice Mascuilli and they first thought it was a funeral. Sister Olympia observed a man who wore a mask carrying a bag from the truck to the Chevrolet.
The pieces of white cord used to truss up the priests and the guards were destined to be of great significance in the investigation that followed. Two stolen cars were destined to connect Callahan, Kapatos, Pierce and Speditz with the robbery of December 21, 1964. And a variety of more or less fortuitous occurrences contributed to the solution of the crime.
That each and every one of these professional robbers was skilled in the art of stealing cars, locked or not, may be inferred from the joint decision, participated in by Callahan and his four confederates, to the effect that each would be on the alert to steal a station wagon at the first available opportunity. And each of the robberies or attempted robberies described in the proofs required the use of a number of stolen cars, so that any identifications by bystanders of the make, description and license numbers of cars participating in the robbery could not be connected up with the perpetrators of the crime. All this, however, proved unavailing to Callahan and Kapatos.
The black Chevrolet in which the four robbers escaped with the loot was found a few days after the robbery in a parking lot 6 or 7 miles from the Rectory, in nearby Hackensack. White paint scrapings on the right front fender upon laboratory examination were found to be identical with the white paint on the door frame and door of Pierce's garage. On January 22, 1965 the right door frame of this garage had black scrape marks at about the same height as the black Chevrolet's right front fender. The car belonged to William Rubin. It was a 1964 four-door Impala black Chevrolet sedan and was stolen on October 21, 1964, almost right under Rubin's nose, from the place he had parked it on the Brooklyn side of the Verrazano Bridge. Rubin testified the Chevrolet was practically a new car and there was no white paint on the right front fender before it was stolen. An electrician's knife which did not belong to Rubin was found on the front seat, and it was of a type that would have been useful in cutting off lengths of rope or cord such as those used to truss up the priests, the caretaker and the guards in the Rectory. Rubin also testified there were two beach chairs and a red quilt in the Chevrolet when it was stolen. These were found after the robbery in the apartment of Speditz in the Bronx, where he and Callahan were living, and Rubin identified these as the same articles that had been in his car when it was stolen.
Another stolen car was found on December 21, 1964, the very day of the robbery, a short distance from the Rectory on the same block where the original group of five had planned to intercept the money truck as it passed the factory. This was an Aqua Blue Bel Air 1964 Chevrolet four-door sedan. It belonged to Eugene Iacovella. Mrs. Iacovella testified it had been stolen from the parking lot of Alexander's on Route 4 at Paramus on November 7, 1964. When the car was stolen a pair of slacks belonging to Iacovella's daughter was in the trunk of the car. These slacks were being taken back to the store because the zipper was defective. There also was in the trunk of the car something less than 100 feet of white nylon cord, such as is used for Venetian blinds. When Iacovella opened the trunk of the car at the police garage, he found his daughter's slacks were gone and 44 feet of the nylon cord were also missing. He found a black leather pistol holster that did not belong to him and was not in the car when it was stolen. It requires little imagination to deduce that the pistol holster was left there by the robbers. There was expert testimony to the effect that the portion of Iacovella's cord left in the car was identical in diameter, color, composition and in every observable respect with the pieces of cord that had been used to tie up the priests, the caretaker and the guards; and the girl's slacks, defective zipper and all, were found in the Speditz apartment while he and Callahan were living there together. The various articles taken from the Speditz apartment were discovered pursuant to the authority of a search warrant.
So, reconstructing the crime, we think it highly probable that Callahan, Kapatos, Pierce and Speditz arrived at the switching place on December 21, 1964 in three cars, that they left Pierce's "clean" car in some parking lot and proceeded with the two stolen Chevrolets, Rubin's black Impala, and Iacovella's Aqua Blue Bel Air, to the vicinity of the Rectory. The Iacovella car was used to take three of the robbers close to the Church so they could get in to the vestibule of the Rectory at just the right time. Then, if anything went wrong, this same car could be used for a getaway. ...