Appeals from judgments entered in the United States District Court for the Southern District of New York after trial before Hon. Charles H. Tenney and a jury pursuant to which appellant Berland was convicted of conspiracy and armed bank robberies in violation of 18 U.S.C. §§ 371 and 2113(d), and appellant Leonardi convicted of receiving proceeds from one such robbery in violation of 18 U.S.C. § 2113(c). Affirmed.
Before Meskill and Kearse, Circuit Judges, and Dooling, District Judge.*fn*
Dennis Leonardi and Steven Jay Berland appeal from judgments of conviction entered in the United States District Court for the Southern District of New York after trial before Hon. Charles H. Tenney and a jury. Berland was found guilty of conspiracy and armed robbery of two federally insured banks in violation of 18 U.S.C. §§ 371 and 2113(a) and (d). Leonardi was convicted of having received a portion of the proceeds of the first of these robberies, in violation of 18 U.S.C. § 2113(c). On this appeal, Berland attacks the admission of the testimony of one Samuel Ax, an unindicted co-conspirator and accomplice in both robberies, on the ground that his cooperation was obtained through the exploitation of an illegal search, and further claims that a witness' in-court identification of him was induced by an improperly suggestive pretrial photographic spread. Leonardi claims that his defense was irreparably prejudiced by various restraints placed by the trial judge upon his cross-examination of Ax. Finding these assertions to be without merit, we affirm the judgments of conviction.
The jury could have determined, Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942), that in late July, 1978, Berland and Ax, acquaintances for approximately five years, entered into a conspiracy to rob an as yet unspecified Westchester bank. Pursuant to their scheme, Ax stole an automobile, and after reconnoitering the Bronxville area, the duo selected the First Federal Savings and Loan Association as their target. In aid of their venture, they purchased two handguns from Dennis Leonardi, then a guest in the motel at which Berland was staying, for an agreed price of $1,500, payment to be deferred, in Ax's paraphrase of Berland's words, until "after he (Berland) did something."
Shortly thereafter on the afternoon of August 16, 1978, Berland and Ax staged the armed robbery of the Bronxville bank. After parking their stolen vehicle nearby, the pair drew ski masks over their faces as they entered the bank, announced their intentions, and with Berland pointing a .30 caliber carbine at patrons and employees, Ax vaulted the counter and proceeded to fill a pillowcase with approximately $31,000 in cash. As the pair ran from the scene of the crime, they removed their masks and fled down the street towards the getaway car. Their actions attracted the attention of Joseph Valesey, who had just stopped his car at a traffic light located near the bank. Valesey's suspicions were confirmed when Berland ran headlong into a truck also stopped in traffic, causing him to drop the jacket he had been carrying, thereby revealing the carbine. Focusing on Berland, Valesey "observed with as much accuracy as (he) could what he (Berland) looked like," getting a "good look" at his face. The evidence indicates that Valesey's vantage point was unobstructed, that the robbers passed close by his car and that he was able to view their flight for about twenty seconds.
As the pair reached their car, Valesey decided to give chase, and for a brief period he trailed directly behind them. Warned by Ax that they were being followed, Berland swiveled around in his seat, affording the witness, for approximately five seconds, another full view of his face. The getaway car accelerated rapidly and the robbers succeeded in eluding Valesey who promptly reported his observations to the Bronxville Police Department, describing Berland with particularity and aiding in the creation of a composite sketch of that suspect's face.
Upon reaching Berland's motel, the robbers entered Leonardi's room where they divided their loot. They were joined shortly thereafter by Leonardi who was treated to a detailed recounting of the heist and was paid from the proceeds of the robbery for the handguns that he had supplied.
The evidence further supports the charge that in mid-September, 1978, at the suggestion of one Frank Sicoli, Berland and Ax robbed the Westchester Federal Savings and Loan Association, located in New Rochelle. Virtually the same modus operandi was utilized, and again, a mishap occurred as the robbers fled from the scene: their departure was noticed by an off-duty security guard standing in a garage across the street from the bank and gunfire was exchanged. A bullet fired by Berland was later recovered by the police, and subsequent ballistics tests indicated that it had been discharged from one of the handguns provided by Leonardi. The robbers crashed their car into the rear of a parked truck before effecting their escape. Another eyewitness subsequently observed them as they abandoned the damaged getaway car in favor of Berland's own automobile.
Attempts to discover the identities of the two robbers during the fall of 1978 were fruitless. On three occasions Valesey was shown photographic arrays, none of which contained Berland's picture, and appropriately, the witness did not recognize any of the persons pictured as the man he had seen in August. In early December Leonardi, for reasons which remain obscure, confided to an acquaintance who was a New York City police officer that Berland and Ax had perpetrated the Bronxville robbery, indicated their last-known address, and admitted selling them a handgun. This information was relayed to the Bronxville police. As a result, a photograph of Berland was included in a fourth photographic spread shown to Valesey late in the evening of December 5, 1978, by Detective Milite of the Bronxville police. It is not certain whether this took place at Lawrence Hospital, Valesey's place of employment as claimed by Officer Milite, or at the stationhouse as claimed by Valesey at trial. Upon confronting Berland's photograph, the witness immediately declared that this was the individual he had seen on the afternoon of the Bronxville bank robbery. A discrepancy in the hair style of the pictured suspect was noted by Valesey, and Detective Milite suggested that the subject may have been wearing a wig at the time the photograph was taken. Holding his finger over the suspect's hairline, the witness announced that he was "positive" that this was the man he had previously described to the police.
Thereafater, the police officer informed Valesey that he had indeed selected the picture of an individual suspected of having committed the Bronxville bank robbery, and a statement was taken from the witness which was utilized the following morning to obtain an arrest warrant for Berland. The warrant was promptly executed at the motel where Berland was staying. Apparently two rooms were held in Berland's name. Upon entering one, the police found only a tackle box containing, inter alia, Ax's driver's license and social security card. The box, together with its contents, was seized. Berland was arrested in the adjoining room, where two handguns were seized. One was identified as the weapon which Leonardi had admitted selling to Berland and Ax. Later ballistics tests indicated that this was the gun fired by Berland while fleeing the New Rochelle robbery.
On the following day Ax was apprehended while in the midst of the armed robbery of a check-cashing business. While being questioned by agents of the Federal Bureau of Investigation, Ax was confronted with evidence of his complicity in the two Westchester bank robberies, including his driver's license which had been found in the tackle box. Ax admitted his participation in the two crimes, and commenced his cooperation with federal authorities by giving four short signed statements. Pursuant to a written plea agreement with the United States Attorney, Ax later appeared as a government witness against Leonardi and Berland.
As a result of these events, Berland and Leonardi were charged in three counts (one through three) of a superseding indictment with conspiracy, robbery and armed robbery of the Bronxville bank, and Berland and Sicoli were similarly accused in three counts (five through seven) with respect to the New Rochelle bank. Ax was cited as an unindicted co-conspirator in both exploits, and Leonardi alone was named in count four as having received a portion of the proceeds of the first robbery.
After a suppression hearing, the district court held the search of the motel room adjacent to the one in which Berland was arrested had violated the Fourth Amendment. Accordingly, the contents of the tackle box, to wit, Ax's driver's license and social security card, were suppressed. Furthermore, the trial court determined on the basis of Detective Milite's testimony that no suggestiveness had tainted Valesey's identification of Berland, that Valesey's appearance at the pretrial hearing should not therefore be required, and that a subsequent in-court identification by that witness of Berland would be permitted.
Despite renewed applications as to the contested identification, trial was conducted in accordance with the court's earlier rulings. In conformity with his plea agreement, Ax appeared as a government witness and testified at considerable length. The following exchange took place with respect to Ax's statements made to the FBI agents the day after his arrest in Queens:
Q. What was it they said to you that made you decide to give the information about Mr. Berland?
A. They asked if I knew him, and they had my driver's license they found ...