Appeal of judgments of conviction for armed bank robbery and conspiracy, 18 U.S.C. §§ 371, 2113(a), (b), (d), after jury trial in the United States District Court for the Southern District of New York, Marvin E. Frankel, J. Court's refusal to give alibi charge was not error. Affirmed.
Moore, Feinberg and Mansfield, Circuit Judges.
John E. Coughlin and Peter A. Pepe appeal from judgments of conviction, after a five-day jury trial in the United States District Court for the Southern District of New York, of conspiracy to rob and armed bank robbery and larceny, in violation of 18 U.S.C. §§ 371, 2113(a), (b), (d). Judge Marvin E. Frankel sentenced each defendant to a single five-year prison term, treating all four counts of the indictment as a single offense for purposes of imposing sentence. The principal claim on appeal is that the judge erroneously failed to charge the jury on appellants' alibi defenses. Finding no reversible error, we affirm.
On October 30, 1972, at approximately 11:30 A.M., the Empire National Bank in Hyde Park, New York, was robbed by three men wearing ski masks. One of the three was unindicted co-conspirator Walter Burton; as the principal government witness, Burton gave a detailed account of how he and the two appellants executed the robbery. This included "casing" the bank and planning the getaway route, stealing and later abandoning a getaway car, driving in a Chevrolet and a Volkswagen, as arranged, to the Stratford Motor Inn in Connecticut to meet there and divide the proceeds ($31,000), becoming apprehensive over a motel clerk's suspicions, and leaving to meet again in the Howard Johnson Motor Lodge not far away. This testimony was amply corroborated. For example, the manager of the Stratford Motor Inn identified a picture of Coughlin as the man who signed "John Ford" on a registration card, date-stamped 1:43 P.M., October 30, 1972. This witness followed Coughlin (John Ford) out to the motel parking lot and, when he noticed Coughlin talking to two or three other men, made note of the license plate numbers of the two cars they stood next to. Neither license number was the one written on the registration card, but one turned out to be for the Chevrolet registered to Pepe's wife, and the other for the Volkswagen belonging to Burton's girl friend. As already indicated, it was the manager's suspicions, noticed by defendants, that precipitated the sudden switch of motels. Similarly, a fingerprint expert testified to Coughlin's prints on a registration card at the Howard Johnson Motor Lodge, date-stamped October 30, 1972 at 2:41 P.M., and made out in the name of William Wise.
Neither Pepe nor Coughlin testified. Each called witnesses, however, to prove an alibi for the day of the robbery. Pepe's wife and sister-in-law testified that he was home at the crucial times. Coughlin's former girl friend, Florence Stefane, testified that they had been together on October 30, 1972, and were briefly at the Stratford Motor Inn in the early afternoon seeking "to be alone." They were disturbed by Burton, however, whom they had met in the parking lot. They left and went to the Howard Johnson Motor Lodge where they stayed for an hour.
On cross-examination, Mrs. Stefane conceded that Coughlin was arrested for the bank robbery at her house. She also admitted that she had told the agents who came to arrest Coughlin that he was not in the house. She explained that she had been home only two minutes and did not know that Coughlin was there. In rebuttal, the Government called two of the arresting agents. They testified that Mrs. Stefane had been home for one and one-half hours when they came to arrest Coughlin, that she at first refused to let the agents in, claiming that Coughlin was not there, that she finally let them search, and that, after much effort, they finally found Coughlin in a hiding place behind a partition in one corner of the attic, and arrested him.
The chief issue on appeal involves the failure of Judge Frankel to give the jury an instruction on the defense of alibi. The circumstances surrounding this aspect of the charge are as follows: Before summations, the judge reviewed with counsel the written requests to charge. Appellants did not submit a proposed instruction on alibi. Near the end of the discussion between the judge and counsel, the following colloquy took place:
Mr. THAU [counsel for Coughlin]: Your Honor, since you took care of requests, and I must apologize for not having submitted any, the reason I didn't is because I have experienced or enjoyed, I should say, your Honor's charge before.
What I will ask here, and this is not something esoteric which I think much preparation is needed for, is an alibi charge to the effect that they may find that alibi is sufficient to create a reasonable doubt where it otherwise wouldn't have been.
As to your request about alibi, it seems to me that I can't give it to you both ways. If I grant that, I am going to give the thing ...