Appeal from a judgment entered in the United States District Court for the Southern District of New York, Leonard B. Sand, Judge, convicting defendant of conspiring to rob federally insured bank funds in violation of 18 U.S.C. § 371.
Joseph Coffey appeals from a judgment of conviction entered against him in the United States District Court for the Southern District of New York following a two-week jury trial before the Hon. Leonard B. Sand, Judge, for conspiring to rob funds of federally insured banks in violation of 18 U.S.C. § 371. Coffey's sole claim on appeal is that he was denied a fair trial when the prosecutor referred to extra-record facts during his rebuttal summation. Our careful review of the trial transcript satisfies us that prosecutor's conceded error, promptly corrected by the trial judge, did not deprive Coffey of any substantial right. Accordingly, we affirm.
In August 1986 Coffey and two others were charged in a three-count indictment for their alleged involvement in the April 29, 1985 armed robbery of $7.9 million cash of federally insured bank funds from the Wells Fargo Armored Services Company ("Wells Fargo"). In addition to the conspiracy county mentioned above, each defendant was also charged with the substantive counts of armed robbery, 18 U.S.C. §§ 2113(d), 2, and carrying a firearm during a crime of violence, id. § 924(c) Coffey was acquitted of the substantive counts; his co-defendants were acquitted on all counts.
At trial the government attempted to demonstrate through eyewitness testimony that Coffey and his co-defendants, masked and armed, accosted four guards with handcuffs, and absconded in a Wells Fargo armored car with $7.9 million in cash. One of the guards testified that he had observed one of the robbers, a white male fitting the approximate age and physical description of Coffey, dragging his right leg as he walked. In their haste, however, the robbers left behind the keys to the storage compartment of the armored car, which locks automatically upon closing the back doors.
The government's chief trial witness was an accomplice in the robbery, Jeffrey Grubczak, who agreed to testify only after he had been convicted at an earlier trial and sentenced to a 25-year prison term. Grubczak testified that while on a break from his job during the early morning hours of April 29, 1985, Coffey, whom Grubczak had known for several years, appeared at Grubczak's lower Manhattan apartment and told Grubczak that he had something for Grubczak to open and that Grubczak should bring his lock-picking tools. Following Coffey's instructions, Grubczak met a group of men in a nearby lot, all of whom then attempted to open the back doors of the Wells Fargo armored car.
Unable on their first attempt to pick the locks or force open the doors, Coffey and Grubczak walked along the perimeter of the lot to check its visibility. During that walk Coffey explained that he had hurt his right leg jumping from a platform. In addition, Coffey and Grubczak were observed by Alan Meritt, a truck driver waiting to make a delivery, who knew Coffey and Grubczak from working in the area and noticed that Coffey was dragging his right leg.
Grubczak returned to the armored car and ultimately succeeded in opening the back doors from inside after breaking a window with a sledge hammer. The bags of money were then transferred to a van, in which everyone in the lot departed, except for Coffey, who left on foot. Later, Coffey met Grubczak at Grubczak residence and instructed him to act normally and return to work.
A few days later Grubczak went to the home of Coffey's co-defendants and was paid $100,000 in cash. As he was preparing to leave, Grubczak met Coffey, who was just then arriving. Grubczak testified that he spend between $20,000 and $30,000 of the payment and hid the balance at his mother's Chicago residence. After criminal charges were lodged against him, however, Grubczak claimed to have instructed his mother to burn the money.
Jay Goldberg, an attorney, testified that soon after Grubczak was arrested Coffey had appeared at Goldberg's office seeking to obtain legal counsel for Grubczak. After meeting with Grubczak, Goldberg agreed to represent him at a fee of $75,000. Goldberg advises Mrs. Grubczak that if she paid for the fee in cash, he would have to file a currency transaction report and the fact of the cash payment would likely be used by the government at her son's trial. Mrs. Grubczak paid $10,000 of the fee by check.
Several days later, Coffey arrived at Goldberg's office with the $65,000 balance of the fee in cash. Goldberg explained to Coffey that if subpoenaed, he would have to disclose the source of the funds. Coffey indicated he was not concerned. Nevertheless, Goldberg returned the cash two days later to avoid having to file a currency transaction report.
The portion of the prosecutor's rebuttal summation that forms the basis of this appeal concerned the source of the $65,000 in cash delivered by Coffey to Goldberg. in his initial summation, the prosecutor recounted the eyewitness testimony that implicated Coffey in the Wells Fargo robbery and relied upon attorney Goldberg's corrborative testimony. With regard to Coffey's solicitation of Goldberg on behalf of Grubczak, the prosecutor stated.
Why did Joseph Coffey do this for Grubczak, go to all this trouble for this drifter, this, as [defense counsel] told you in his opening statement, this bum, this liar, this thief, this burglar? Why did he go to all this trouble for such a man, * * * a man he knew only as an acquaintance from the social club where Coffey used to go to drink and Grubczak used to work?
Why did Coffey go to this Harvard lawyer, * * * this skilled criminal defense advocate, this $75,000 lawyer? Why? Can there be any other reason, ask yourselves, other than that Joseph Coffey was trying to buy Grubczak silence through the skill of an expensive attorney.
And we know why. Jospeh Coffey had a big interest * * * in insuring that Jeffrey Grubczak never took the ...