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United States v. Montelbano

decided: April 9, 1979.

UNITED STATES OF AMERICA, APPELLEE,
v.
FREDERICK J. MONTELBANO, APPELLANT .



Appeal from a judgment entered after a four day jury trial in the Southern District of New York, Thomas P. Griesa, District Judge, convicting appellant of violating certain provisions of federal law stemming from his participation in the hijacking of a truckload of seafood. Affirmed.

Before Lumbard, Feinberg and Timbers, Circuit Judges.

Author: Timbers

On this appeal from a judgment entered after a four day jury trial in the Southern District of New York, Thomas P. Griesa, District Judge, convicting appellant of violating certain provisions of federal law stemming from his participation in the hijacking of a truckload of seafood,*fn1 the principal issue is whether the district court erred in declining to give a requested cautionary instruction concerning the reliability of eyewitness identification testimony. We hold that the district court did not err in declining to give the instruction in the instant case. We affirm the conviction.

I.

The events which culminated in the hijacking began during the early morning hours of December 6, 1976. At 5 A.M., the O.K. Trucking Company dispatched one of its drivers, Ralph Eme, age 19, in a refrigerated truck from Philadelphia to pick up frozen seafood from two refrigerated warehouses in Jersey City and from one in New York City. Eme did so.

After loading his truck with substantial amounts of seafood*fn2 at the three warehouses, Eme was directed to proceed to a fourth warehouse in Manhattan to assist other O.K. Trucking drivers by taking on overflow from their trucks before Eme returned to Philadelphia. It was while Eme was en route to the fourth warehouse in Manhattan that the hijacking occurred.

At about 10:30 A.M., while driving south on Tenth Avenue, Eme stopped for a red light at the intersection of Tenth Avenue and 14th Street. A man forced his way into the driver's side of the truck and shoved Eme over to the passenger's side. This unidentified hijacker (referred to as "Doe" in the indictment and at trial) drove the truck around the corner and stopped on 14th Street. Doe ordered Eme to climb over to the driver's side and to drive the truck south on West Street until he came to the waterfront where he was ordered to stop. Eme did so.

The truck was being followed by a red Rambler. When the truck stopped at the waterfront, the Rambler did also. A man Eme later identified as Montelbano and another unknown man (referred to as "Roe") got out of the Rambler and walked to the passenger's side of the truck. Montelbano instructed Doe, who was seated on the passenger's side of the truck, to tell Eme to do as he was told or his brains would be blown out. Eme heard what was said. Montelbano returned to the Rambler. Doe, who remained on the passenger's side, directed Eme to drive to the Fulton Fish Market. He did so. The truck and the Rambler both stopped at the Fulton Fish Market.

Montelbano got out of the Rambler at the Fulton Fish Market. He forced his way into the driver's side of the truck, shoving Eme from the driver's side toward the passenger's side and sandwiching him between Montelbano and Doe. Montelbano drove the truck from the Fulton Fish Market, out of Manhattan, and onto the Long Island Expressway. Roe followed in the Rambler.

During this trip Montelbano told Eme to take off his glasses, to look straight ahead, and to follow instructions or his brains would be blown out. Eventually Montelbano left the Expressway, stopped at a gas station, and made a phone call. Upon returning to the truck, Montelbano drove for another fifteen to twenty minutes before stopping in the Babylon area of Long Island. There the Rambler also stopped. Montelbano got out, walked behind the truck, and spoke with Roe who had gotten out of the Rambler. Montelbano then returned to the truck and drove it into a shopping center.

At the shopping center, Montelbano ordered Eme out of the truck and into the Rambler where he remained with Doe. Montelbano, accompanied by Roe, then drove the truck away to dispose of the cargo of seafood. They returned forty minutes later with the empty truck.

Montelbano then drove the truck to another shopping center, followed by the Rambler which was driven by Roe. On this trip Eme was forced by Roe to lie face down on the back seat of the Rambler.

At this second shopping center, Montelbano abandoned the empty truck. He took over the driver's seat of the Rambler and, accompanied by Doe, Roe and Eme, drove around that area of Long Island for a short while. Roe took Eme's driver's license from him and warned him that, if any of the men were caught, someone would come to his address and get him.

Eventually Montelbano released Eme and instructed him to walk straight away from the car without turning back. Shortly before 3:30 P.M., Eme called the police from a gas station near the Long Island Expressway and reported the hijacking. Five hours had elapsed since the truck was first seized in Manhattan. The cargo of seafood never was recovered. The empty ...


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