Appeals from judgments entered in the United States District Court for the Eastern District of New York, Mark Costantino, Judge, following jury verdicts of conviction for bank robbery, 18 U.S.C. §§ 2113(a) and (d). Affirmed.
Before: Anderson, Mansfield and Mulligan, Circuit Judges.
After a jury trial before Hon. Mark Constantine in the District Court for the Eastern District of New York, appellant Di Giovanni was convicted on December 4, 1975 on two counts of bank robbery in violation of 18 U.S.C. § 2113(a). Following a second jury trial before Judge Constantino, appellants Di Giovanni and Sadowski were convicted on January 2, 1976, on one count of bank robbery in violation of 18 U.S.C. § 2113(d). Appellants appeal these convictions.
In the first trial, Di Giovanni was convicted of robbing a branch of the Atlas Federal Savings and Loan Association on July 18, 1975, and a Chase Manhattan Bank branch on July 24, 1975. Before the trial, Di Giovanni's co-defendants, Grafman and Loskocinski, entered guilty pleas. At the trial, both testified as to Di Giovanni's involvement in the Atlas and Chase robberies. The Government also presented as a witness Irving Markson, a cellmate of Di Giovanni and Grafman at the West Street Detention Center. Markson testified to a discussion with his two cellmates about their bank robbing technique. He also related a separate conversation with Di Giovanni in which the appellant told Markson of spending part of his proceeds from the robberies on furnishing an apartment to impress a girl.
On the third day of trial, the prosecutor informed defense counsel that it would offer testimony concerning statements made by Di Giovanni following his arrest, as well as evidentiary items taken from the apartment of Sonia Karakitis, the appellant's girl friend. Appellant's counsel had been advised prior to trial of the Government's intention to introduce this evidence and had made no motion to suppress. A motion was made at this point and the judge, after a suppression hearing, denied the motion. At the hearing, an FBI agent testified as to the voluntariness of Sonia Karakitis' consent, given both orally and in writing, to search her apartment. Di Giovanni's counsel declined the Government's offer to make Karakitis available as a defense witness on the consent issue.
At the second trial, Di Giovanni, Sadowski and Patrick Dougherty were tried for the robbery of a National Bank of North America branch on July 2, 1975. Di Giovanni and Sadowski were convicted; Dougherty was acquitted.
Prior to jury selection, the Government showed all its anticipated exhibits to defense counsel. Although no objection was made to any particular exhibit, Di Giovanni's counsel moved to suppress all material obtained in the search of the Karakitis apartment. Judge Constantino ruled that under Fed. R. Crim. P. 12(f) any suppression hearing must be conducted before the impaneling of the jury. Following this ruling, none of the defendants requested a suppression hearing as to the consent search.
At the second trial, Grafman and Markson again appeared as witnesses for the Government. Grafman was subjected to extensive cross-examination. Sadowski's attorney elicited from Grafman that, while he and Di Giovanni had participated in four robberies, Sadowski was only involved in one of these, North American. Di Giovanni's attorney made no objection to this testimony until the second day of cross-examination. Judge Constantino stated that he had been waiting for an objection to that line of questioning and later expressed surprise at the lack of objections on behalf of appellant Di Giovanni. Although counsel for Di Giovanni asserts that a standing objection had been made, there is no evidence of one in the record.
Grafman also testified to a telephone conversation with Sadowski after the North American robbery concerning the future commission of a bank robbery. Di Giovanni's and Sadowski's counsel made a standing objection to this testimony.
The Government also called Sonia Karakitis as a witness. On cross-examination she testified that she had signed a consent form and had given oral permission to the FBI to search her apartment following Di Giovanni's arrest. She also admitted to absconding with a rented car under a false name and to casing a bank with Di Giovanni after July 2, 1975. In each case further exploration of these self-incriminating admissions was foreclosed when the witness invoked the Fifth Amendment following a warning by the court of her privilege against self-incrimination. Motions by all defendants to strike Karakitis' testimony because of her invocation of the Fifth Amendment were denied.
The judgments of conviction against both appellants are hereby affirmed in all respects. Di Giovanni argues that the joinder in the first trial of the two bank robberies (July 18th and July 24th, 1975) was reversible error but he has failed to show substantial prejudice. United States v. Papadakis, 510 F.2d 287, 300 (2d Cir.), cert. denied, 421 U.S. 950, 44 L. Ed. 2d 104, 95 S. Ct. 1682 (1975). The bank robberies were committed within six days of each other and the modus operandi used in each was the same. Joinder of both ...