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June 26, 1992


The opinion of the court was delivered by: BARTELS


 I. Background

 The defendants were tried before a jury pursuant to an indictment alleging against each of them the following three counts: Count One, conspiracy to commit bank larceny in violation 18 U.S.C. § 371; Count Two, bank larceny in violation of 18 U.S.C. § 2113(b); and Count Three, intentional use of a firearm during and in relation to crimes of violence, to wit, the crimes charged in Counts One and Two, in violation of 18 U.S.C. § 924(c). The indictment stemmed from the theft of approximately $ 1.2 million from a Rapid Armored Truck Company ("Rapid") armored truck on the morning of March 25, 1988 in Brooklyn, New York. On April 29, 1992, a jury returned a guilty verdict on Count One against the defendants Daidone, Raymond Argentina, Molinelli and Taglianetti. The jury returned not guilty verdicts on Counts Two and Three against these defendants and found defendant Peter Argentina not guilty on all counts.

 Defendants Daidone, Raymond Argentina, Molinelli and Taglianetti now move for judgments of acquittal pursuant to Fed.R.Crim.P. 29, new trials pursuant to Fed.R.Crim.P. 33 and release on bail pending appeal pursuant to Fed.R.Crim.P. 38. Seven contentions are raised by these motions as follows: [1] all defendants assert that the evidence introduced at trial was insufficient to convict them; [2] Raymond Argentina contends that he was denied a fair trial in violation of the Fifth Amendment of the Constitution because of judicial bias, prejudice and hostility toward his counsel, David Breitbart; [3] all defendants contend that Juror No. 7 should have been excused from the jury for cause; [4] all defendants assert that the Court and government improperly engaged in a secret ex parte meeting concerning the Government's position on Juror No. 7; [5] defendant Molinelli claims that the jury's verdict was inconsistent and contrary to law in light of his testimony at trial; [6] all defendants claim error concerning admissibility of evidence concerning a prior plan to rob a Coin Devices Corporation ("CDC") armored truck; and [7] defendants Daidone, Raymond Argentina and Taglianetti argue that they should be released on bail pending appeal because they were convicted of a non-violent crime. Since one of the defendants uses this occasion to contend that he did not receive a fair trial under the Constitution, a written opinion by this Court is necessary.

 II. Discussion

 1. Sufficiency of the Evidence

 Under the above claim, the Court must "view the evidence in the light most favorable to the government and construe all possible inferences in its favor. . . ." U.S. v. Salerno, 868 F.2d 524, 530 (2d Cir. 1989), cert. den. 491 U.S. 907, 109 S. Ct. 3192, 105 L. Ed. 2d 700 (1989) (internal quotations omitted). Furthermore, "participation in a criminal conspiracy need not be proven by direct evidence; a common purpose and plan may be inferred from a 'development and collection of circumstances.'" Salerno, 868 F.2d at 530 (internal quotations omitted). The testimony of government witness Anthony Guarino alone is sufficient to meet these standards. Guarino testified at length about the conspiracy to rob a Rapid armored truck which involved the five defendants and himself. In addition, tape recorded conversations that Guarino had with Daidone, Taglianetti and Molinelli corroborated certain portions of Guarino's testimony. A witness testified that he saw Raymond Argentina driving the stolen Rapid armored truck along Newel Street, Brooklyn, New York on the morning of March 25, 1988. Finally, the testimony of Molinelli, who took the stand in his own defense, further corroborated much of what Guarino had said.

 2. Raymond Argentina's Claim of Judicial Bias, Prejudice and Hostility

 Raymond Argentina alone asserts that the district court denied him a fair trial in violation of the Fifth Amendment of the Constitution because the Court "openly expressed hostility toward Breitbart in the presence of the jury." Argentina speculates that the jury punished him with a conviction for the district court's "bias" and "ridicule and disdain of . . . [his] . . . counsel's actions." He offers several citations to the trial transcript in order to support his characterization of the "Court's ill feelings toward the defense." These quotations are taken out of context and parsed from the record. They present a wholly inaccurate depiction of what transpired during the course of this lengthy and hotly contested trial. A careful and thorough review of the trial transcript belies any accusation that the Court acted improperly toward Breitbart in spite of his efforts to induce such conduct.

 Much to the contrary, Breitbart acted very improperly throughout the trial. He disregarded and/or contested many rulings after they had been made during the course of the trial at least twenty-one (21) times. Transcript ("Tr.") at 13-14, 60-61 and 1175-83, 151-52, 459-61, 552, 609-13, 623, 871, 1273, 1411-13; compare N.Y. Judiciary Law App. DR 7-106(A) (McKinney's Supp. 1992) ("[a] lawyer shall not disregard . . . a ruling of a tribunal made in the course of a proceeding . . . ."). Breitbart suggested to the Court that it had made a certain ruling, when, in fact, it had recently made the opposite determination on at least two occasions. Tr. at 609-11, 61 and 1175-83; compare N.Y. Judiciary Law App. DR 7-106(A) and DR 7-102(A)(5) (McKinney's Supp. 1992) ("in the representation of a client, a lawyer shall not . . . knowingly make a false statement of law or fact"). He openly challenged the district court's power under Fed.R.Evid. 614(b) to ask questions of witnesses. Tr. at 1224; Fed.R.Evid. 614(b); see e.g., Berkovich v. Hicks, 922 F.2d 1018, 1025 (2d Cir. 1991). He pursued impermissible lines of questioning during cross-examination at least nine (9) times despite the Court's rulings to the contrary. Tr. at 552, 576, 609-13, 623; compare N.Y. Judiciary Law App. DR 7-106(A). He acted insubordinately and/or disruptively at least thirty-one (31) times. Tr. at 203, 258, 459-61, 609-11, 613, 693, 871, 1224, 1231-32, 1272-74, 1405, 1407, 1412-1413, 1428-30, 1433, 1832-33; compare N.Y. Judiciary Law App. DR -7-106(C)(6) (McKinney's Supp. 1992) ("in appearing as a lawyer before a tribunal, a lawyer shall not . . . engage in undignified or discourteous conduct which is degrading to a tribunal"). He interjected his own commentary into the proceedings at least twelve (12) times. Tr. at 422-23, 572, 574-75, 611, 613, 624, 693, 871, 1407, 1412, 1414-15; compare N.Y. Judiciary App. DR 7-106(C)(1) (McKinney's Supp. 1992) ("in appearing as a lawyer before a tribunal, a lawyer shall not . . . state or allude to any matter that he or she has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence") and DR 7-106(C)(6). Based on this misconduct, the Court did not exaggerate when it stated to Breitbart at sidebar that, "I don't know how to deal with you. I've never had anyone like you in my Court in 32 years -- nobody -- but nobody." Tr. at 1430.

 Breitbart was warned at least seven (7) times that if he did not stop acting in the ways described above he would be rebuked or barred from proceeding. Tr. at 614, 623-24, 625, 648-49, 684, 783-87, 788. The Court admonished him in light of these warnings and only in direct response to his misconduct. Many of these reprimands occurred outside the presence of the jury. For those which did not, Breitbart knowingly defied the specific warning that he would be rebuked in front of the jury if necessary. Tr. at 648-49.

 Q [by Mr. Considine]: Let me see if we can refresh your recollection. Transcript dated May 7, 1990. I'll direct your attention to page 3.

 MR. FROCARRO: Judge, we have never seen his version of the transcript. I don't know what he may have created on that transcript. I don't think it's fair.

 THE COURT: Is that a transcript?

 MR. CONSIDINE: It's a transcript. I can use it to refresh his recollection. Does he want to take a look at it? He's welcome to take a look at it.

 THE COURT: He can take a look at it.


 MR. FROCARRO: Judge, before he shows this to the witness, because there's a big difference in our interpretation and his interpretation. He's refreshing with something that's misleading.

 THE COURT: That's up to him.

 MR. FROCARRO: Judge, he hasn't had a chance to hear the tape. It's totally unfair. Let him play the tape.

 THE COURT: Wait a minute. I don't know how many cases you have tried. You can give him a telephone book and ask him if it refreshes his recollection.

 MR. FROCARRO: Can we give him our version of the transcript also?

 THE COURT: No. This is only to refresh his ...

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