695 F.2d 658 (2nd Cir. 1982), 206, United States v. Marrale

Docket Nº:206, 229, Docket 82-1182, 82-1184.
Citation:695 F.2d 658
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Frank MARRALE and Alphonse Marrale, Defendants-Appellants.
Case Date:December 13, 1982
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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695 F.2d 658 (2nd Cir. 1982)

UNITED STATES of America, Plaintiff-Appellee,

v.

Frank MARRALE and Alphonse Marrale, Defendants-Appellants.

No. 206, 229, Docket 82-1182, 82-1184.

United States Court of Appeals, Second Circuit

December 13, 1982

Argued Aug. 30, 1982.

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Diane F. Giacalone, Asst. U.S. Atty., Brooklyn, N.Y. (Edward R. Korman, U.S. Atty., E.D.N.Y., Mary McGowan Davis, Asst. U.S. Atty., Brooklyn, N.Y., on the brief), for plaintiff-appellee.

Mark F. Pomerantz, Brooklyn, N.Y. (Lewis D. Cohen, Ronald P. Fischetti, Brooklyn, N.Y., on the brief), for defendant-appellant Frank Marrale.

Jay Goldberg, New York City, for defendant-appellant Alphonse Marrale.

Before KEARSE, CARDAMONE and WINTER, Circuit Judges.

KEARSE, Circuit Judge:

Defendants Frank Marrale ("Frank") and his son, Alphonse Marrale ("Alphonse"), appeal from judgments of conviction entered in the United States District Court for the Eastern District of New York, after a jury trial before Henry Bramwell, Judge. Frank was convicted of theft from a foreign shipment in violation of 18 U.S.C. Secs. 659 and 2 (1976) and bank larceny in violation of 18 U.S.C. Secs. 2113(b) and 2 (1976). Frank and Alphonse were convicted of conspiracy to steal and possess moneys stolen from a foreign shipment, in violation of 18 U.S.C. Sec. 371 (1976). Frank was sentenced to ten years' imprisonment and a $5,000 fine on the foreign shipment theft count, ten years' imprisonment and a $5,000 fine on the bank larceny count, and five years' imprisonment and a $10,000 fine on the conspiracy count, the jail terms to be served consecutively and the fines to be cumulative. Alphonse was sentenced to the custody of the Attorney General for an indeterminate period of treatment and supervision as a young adult offender, pursuant to 18 U.S.C. Sec. 5010(b) (1976). Finding no merit in the defendants' challenges to their convictions, we affirm.

I. BACKGROUND

Since neither defendant challenges the sufficiency of the evidence, a brief summary of the evidence at trial, taken in the light most favorable to the government, will suffice. In 1981, Frank was employed as a driver by Armored Express, Inc. ("Armored"), a firm in the business of transporting shipments of money for commercial companies and banks. According to Frank's co-worker Steve Mui, who testified for the government, in June 1981 Frank and Mui began to discuss the possibility of stealing bags of money they were to transport to John F. Kennedy International Airport. Frank stated that he knew three people who could prepare facsimile bags to be substituted for the bags of cash in order to facilitate the theft. Frank did not identify his partners but told Mui that if anything went wrong Mui should contact Alphonse, Frank's 19-year old son, who would know "the business" and the people with whom Frank was doing business. In November 1981, Frank and Mui executed their scheme, stealing a shipment of $2 million being sent by Republic National Bank to

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Kennedy Airport for transport to Seoul, Korea. Frank and Mui were to receive $400,000 apiece after the money was "laundered," with the remaining $1.2 million going to Frank's partners who had provided the bogus bags and to persons who would launder the money.

After the theft was discovered, Mui was questioned and was asked to take a lie detector test. Mui told Frank he was nervous about the test, and Frank told Mui to get pills from Alphonse to slow down his reactions and help him pass the test. Mui obtained two pills from Alphonse which he took in preparation for the test. Notwithstanding the medicinal aid, Mui believed he had failed the lie detector test, and, after consulting an attorney, he agreed to cooperate with the government in return for not being prosecuted.

Following the agreement, Mui had several conversations, which he taped, with Frank concerning arrangements for Mui to collect his $400,000. Mui eventually was paid $300,000 (which he turned over to the FBI) and continued to try to collect the remaining $100,000. In these conversations Frank expressed apprehension of detection by the FBI and several times suggested that Alphonse might make the delivery of the $100,000, since no one was following Alphonse. Finally, Mui arranged to have Frank call him at a certain telephone booth on December 9, 1981, at 4:00 p.m. The call was made, however, not by Frank but by Alphonse, who told Mui "we gonna lay low for awhile" because of people "following my father." Alphonse stated that he would call Mui the next day when "I'll know ... what the rest of the story is." This conversation too was taped.

Frank was arrested in the wee hours of the morning of December 10, 1981. At approximately 7:00 on the same morning, federal agents went to the apartment of Frank Marrale, where Alphonse lived, and there arrested Alphonse. In response to the agents' questions about the $2 million theft and about Mui, Alphonse stated that he did not know Mui and that he had not spoken to anyone named Steven Mui.

In a five-count indictment, Frank and Alphonse were charged with conspiring to steal and possess money stolen from a foreign shipment, in violation of 18 U.S.C. Sec. 371 (count 1); Frank was charged with stealing money from a foreign shipment, in violation of 18 U.S.C. Secs. 659 1 and 2 (count 2), and with larceny from a bank whose deposits were insured by the Federal Deposit Insurance Corporation ("FDIC"), in violation of 18 U.S.C. Secs. 2113(b) 2 and 2 (count 4); Alphonse was charged with aiding and

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abetting a theft from a foreign shipment, in violation of 18 U.S.C. Secs. 659 and 2 (count 3), and with aiding and abetting a larceny from a bank whose deposits were insured by FDIC, in violation of 18 U.S.C. Secs. 2113(b) and 2 (count 5). At the close of the government's case counts 3 and 5 against Alphonse were dismissed pursuant to Fed.R.Crim.P. 29. The jury found the defendants guilty as charged on all of the remaining counts. As described above, Frank Marrale was sentenced to serve consecutive prison terms and pay cumulative fines on counts 1, 2, and 4. Alphonse was sentenced to an indeterminate prison term as a youthful offender.

On appeal, Frank challenges the imposition of consecutive sentences on counts 2 and 4, contending that Congress did not intend to authorize cumulative penalties under Secs. 659 and 2113(b) for theft from a foreign shipment and theft from a bank, respectively, in the context of a single criminal transaction such as that undertaken here. Alphonse challenges his conviction on the grounds that his statements following his arrest should not have been admitted in evidence, and that certain statements by the prosecutor in summation deprived him of a fair trial. Finding no merit in appellants' contentions, we affirm the convictions.

II. FRANK MARRALE

Prior to trial, Frank Marrale asserted that counts 2 and 4 were multiplicious and moved to require the government to elect whether it would proceed on count 2, charging theft from a foreign shipment, or count 4, charging bank larceny. 3 The contention that the counts were multiplicious rested on the premise that Congress did not intend to authorize cumulative penalties for a person who violated both Sec. 659 and Sec. 2113(b) in a single criminal transaction. The district court denied the motion, relying on Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). In Blockburger, the Supreme Court stated that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Id. at 304, 52 S.Ct. at 182. The district court here concluded that counts 2 and 4 were not multiplicious because each offense required proof of a fact that the other did not.

Frank concedes on appeal, as he did below, that counts 2 and 4 against him are not multiplicious under the Blockburger test, but he argues that that test is inapplicable. He contends that the Federal Bank Robbery Act, 18 U.S.C. Sec. 2113, 4 is a comprehensive

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scheme that provides the exclusive remedy for conduct falling fully within its coverage and that an independent provision such as Sec. 659, see note 1 supra, may not be invoked to fragment what was in fact a single criminal transaction. We are unpersuaded by Frank's reasoning and the cases on which he relies.

The recent teaching of the Supreme Court mandates a three-step inquiry by which the courts may determine whether Congress intended to authorize multiple punishments for conduct that violates two statutory provisions. See Albernaz v. United States, 450 U.S. 333, 336-42, 101 S.Ct. 1137, 1141-44, 67 L.Ed.2d 275 (1981). The starting point for the analysis is the language of the provisions. If the offenses charged are set forth in different statutes or in distinct sections of a statute, and each section unambiguously authorizes punishment for a violation of its terms, it is ordinarily to be inferred that Congress intended to authorize punishment under each provision. Id. at 336, 101 S.Ct. at 1141. The court's next task is to determine whether the two offenses are sufficiently distinguishable from one another that the inference that Congress intended to authorize multiple punishments is a reasonable one. In making this determination the Blockburger test is employed, and if the court finds that each offense requires proof of a fact that the other does not, it should presume that multiple punishments are authorized. Id. 450 U.S. at 337-40, 101 S.Ct. at 1141-43. The final step is to test this presumption against the legislative history of the provisions to discover whether a contrary congressional intention is disclosed. If the legislative history either reveals an intent to authorize cumulation of punishments or is silent on the...

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