San Fratello v. United States

• Decision Date: 20 January 1965
• Docket Number: No. 21098.,21098.
• Citation: 340 F.2d 560
• Parties: Joseph Gartner SAN FRATELLO, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

340 F.2d 560 (1965)

Joseph Gartner SAN FRATELLO, Appellant, v. UNITED STATES of America, Appellee.

No. 21098.

United States Court of Appeals Fifth Circuit.

January 20, 1965.

Joseph P. Manners, Miami, Fla., for appellant.

Thomas J. Hanlon, III, Asst. U. S. Atty., Tampa, Fla., for appellee.

Before TUTTLE, Chief Judge, BROWN, Circuit Judge, and BREWSTER, District Judge.

BREWSTER, District Judge:

The prosecution of this case grew out of the nighttime theft from the business establishment of Rasdale Armored Car Service, Inc., in Tampa, Florida, of more than $350,000.00 in money, a substantial part of which had been committed to the custody of the Marine Bank and Trust Company. The deposits of the bank were insured by the Federal Deposit Insurance Corporation. The first count of the indictment charged that Joseph San Fratello, Jose Alvarez, Hubert Hardin and others whose identities were unknown to the grand jury conspired to enter the building occupied by Rasdale with the intent to steal money in excess of $100.00 committed to the custody of the bank, in violation of Section 2113(b), Title 18, United States Code. The other count, charging only San Fratello, alleged that he aided and abetted Alvarez and others whose identities were unknown to the grand jury in stealing the money.¹ All three defendants were convicted on the conspiracy count, and San Fratello was also convicted on the second count. San Fratello is the appellant here.

The indictment alleged that the conspiracy began on or about November 1, 1960 and continued through January 15, 1961, and that during that time the defendants committed the following overt acts in furtherance of it: (1) San Fratello was instrumental in obtaining employment for Alvarez at Rasdale; (2) Alvarez surreptitiously took numerous photographs of the exterior and the interior of the Rasdale building, including the burglar alarm system and the inside of the vault, with a small, concealed camera; (3) San Fratello took those films to the Tampa Photo Supply for development; (4) Doris Ellick picked up the pictures at Tampa Photo Supply at the direction of San Fratello;² (5) Alvarez had unauthorized possession of keys for the front door and the money room of the Rasdale building.

Rasdale operated an armored car service in the Tampa area. Although its office and building were open only during daytime business hours, several of its armored cars picked up money at night from the dog track, supermarkets and other establishments which remained open late. On such occasions, the money was brought to Rasdale's business building and placed in a vault for safekeeping overnight. The burglar alarm service, which was in effect after Rasdale's regular office hours, made it necessary for one of the crew bringing in money after hours to enter the front office door by unlocking it with a key, go through the office to the garage and unlock a door from the inside so that the truck could enter. Entrance to the money room was also gained with a key; and then it was necessary to work the combination on the door of the vault where the money being brought in was to be put. Burglar alarms were located at several places in the building. When a person entered a door after regular office hours, an alarm notified the Tampa Signal Company. An employee so entering for the purpose of bringing in money was required to satisfy the signal company by giving his code identification. Under an arrangement with the Marine Bank and Trust Company, some of the night receipts handled by Rasdale were considered as being on deposit with the bank while they were still in the actual possession of Rasdale.

At the time of the theft, Alvarez was employed by Rasdale as an armored car driver. His car brought in the dog track receipts around midnight on December 26, 1960. During the early morning hours of December 27, 1960, more than $350,000.00 was stolen from the money vault. Shortly prior to the theft, Hardin and Alvarez were in strained financial circumstances; but after it, they began to show signs of affluence. Large sums of money were found in their possession. The bands around some of the packs of currency had the stamp of the Marine Bank and Trust Company on them. Much of the stolen money was never recovered. None of it was found in San Fratello's possession.

The government's theory was that San Fratello, Hardin and Alvarez worked up a thorough plan for the theft and carefully carried it out, with San Fratello as the master mind. It was an essential part of the plan that Alvarez be employed by Rasdale so that entrance could be obtained to its business premises, the money room and the vault.

The only questions presented here which merit discussion arose out of the action of the Court in permitting the prosecution to call San Fratello's wife as a witness so as to require her to claim her privilege against self-incrimination in the presence of the jury, after it had been made known to the Court in the absence of the jury that the witness had claimed her privilege as to the same matters in a previous trial and that she had just advised the prosecutor that she would assert it in this case. The questions are whether it was error to overrule San Fratello's objection to her being required to claim her privilege in the presence of the jury, and if so, whether the error was rendered harmless by the Court's instruction to the jury in connection with the matter.

On the eighth day of the trial, and near the end of the government's evidence in chief, counsel for San Fratello advised the Court in the absence of the jury that he had learned that the government intended to call San Fratello's wife as a witness; that she would refuse to testify to anything other than her name and address on the ground that it might tend to incriminate her; that she had so advised counsel for the government in a conference just a short time before; that she had also refused to testify in another case involving this same matter.³ Counsel then moved that the government not be permitted to call her as a witness in the presence of the jury on the ground that such action would be prejudicial to San Fratello. The prosecutor admitted to the Court that the witness had told him that she intended "to take the Fifth Amendment," and that "on a previous occasion in another trial, when asked with relation to the same matters, she did on that occasion take the Fifth." He also told the Court that in general he intended to interrogate her about picking up the pictures at the Tampa Photo Supply, which was shortly before her marriage to San Fratello. The indictment alleged that transaction as one of the overt acts in furtherance of the conspiracy. After stating that there seemed "to be no question really of her right to take the Fifth Amendment," the Court overruled the motion on the ground that the privilege was personal to the witness and could be claimed only when the questions were put to her on the stand.⁴

The jury was then brought into the courtroom and appellant's wife was called as a witness by the prosecution. After she had responded to questions about her name and address, she refused to answer questions about whether she was the wife of the appellant and whether she went to Tampa Photo Supply Company to pick up the film in question, on the ground that her answers to each of such questions might tend to incriminate her. The Court sustained both of her claims of privilege.⁵

At the conclusion of the case the Court gave the following instruction in his main charge to the jury:

"The reluctance of a witness to incriminate herself may not be used to incriminate others. In fact, the jury must draw no unfavorable inferences to a defendant because of the fact that a witness has claimed her right under the proper Amendment to the United States Constitution and has refused to testify. In this particular case, Doris Ellick San Fratello\'s refusal to testify is not to be considered by you as evidence against any defendant in this case, nor may you draw any unfavorable inferences against any defendant in the case from this witness\' refusal to testify."

The rule stated by the trial court as the basis for his action is found in 8 Wigmore, Evidence, 3d Ed., #2268, p. 402. The courts have now come to recognize an exception to the rule where the prosecution knows or has good reason to believe in advance that the witness will claim his privilege. In United States v. 5 Cases, etc., 2 Cir., 179 F.2d 519, 523 (1950), the Court said:

"In Wigmore on Evidence, 3d ed. § 2268, the learned author says: `The privilege is merely an option of refusal, not a prohibition of inquiry,\' and `it is universally conceded that the question may be put to the witness on the stand.\' (Emphasis in original.) Nevertheless we are not prepared to say that it would not be ground for reversal if the party who called a witness connected with a challenged transaction knew, or had reasonable cause to know, before putting the witness on the stand that he would claim his privilege. See McClure v. State, 95 Tex.Cr.R. 53, 251 S.W. 1099; Rice v. State, 121 Tex.Cr.R. 68, 51 S.W.2d 364; cf. People v. Kynette, 15 Cal.2d 731, 104 P.2d 794, 802. * * *"

The quotation that follows is from Rice v. State, 121 Tex.Cr.R. 68, 51 S.W. 2d 364, 365, which in turn quotes from McClure v. State, 95 Tex.Cr.R. 53, 251 S.W. 1099, both of which cases are cited by the Circuit Court with approval in United States v. 5 Cases, etc., supra. The Court said in the Rice case:

"The state called those jointly indicted with appellant to the witness stand, notwithstanding the court had been advised that they would refuse to testify because they were indicted for the same offense. In advising the court of such matter, appellant\'s counsel requested the court to admonish the district attorney not to place the witnesses on the stand. This request was denied, and, over appellant\'s objection, the district attorney was permitted to call the

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