U.S. v. Alessandrello, 79-2654

• Decision Date: 21 November 1980
• Docket Number: No. 79-2654,Nos. 79-2654,No. 79-2699,79-2699,79-2654,s. 79-2654
• Parties: 7 Fed. R. Evid. Serv. 477 UNITED STATES of America v. ALESSANDRELLO, Gaetano, Appellant inAppeal of LACOGNATA, Salvatore, in
• Court: U.S. Court of Appeals — Third Circuit

Page 131

637 F.2d 131

7 Fed. R. Evid. Serv. 477

UNITED STATES of America v. ALESSANDRELLO, Gaetano, Appellant in No. 79-2654 Appeal of LACOGNATA, Salvatore, in No. 79-2699.

Nos. 79-2654, 79-2699.

United States Court of Appeals Third Circuit.

Argued July 10, 1980.

Decided Nov. 21, 1980.

Kenneth J. Fishman (argued), James Michael Merberg, Law Offices of F. Lee Bailey, Boston, Mass., for appellants.

Robert J. Del Tufo, U. S. Atty., William Braniff, Chief, Crim. Div. of U. S. Attorney's Office, Samuel A. Alito, Jr., Asst. U. S. Atty. (argued), Newark, N. J., for appellee.

Before WEIS, VAN DUSEN and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

VAN DUSEN, Senior Circuit Judge.

On October 6, 1979, Gaetano Alessandrello and Salvatore Lacognata were convicted of violating the federal bank robbery statute, 18 U.S.C. § 2113(a), (b), and (e) (1976), and the conspiracy statute, 18 U.S.C. § 371 (1976). They challenge their convictions on appeal, asserting that their rights were violated by their exclusion from a portion of the jury selection process. They also contend that there was insufficient evidence that they took money which was in the control of a bank from the person or presence of another. They further argue that there was insufficient evidence of intent to rob a bank. Finally, they allege that the trial court erred in denying their request for an indefinite continuance, and in admitting certain items into evidence. After reviewing the record in this case in light of the applicable law, we affirm.

I.

Alessandrello and Lacognata were charged in a four-count indictment returned August 6, 1979. Three others were named as co-conspirators and co-defendants. ¹ Count One charged the defendants with conspiring to rob a bank in violation of 18 U.S.C. § 2113(a), (b), and (e). Count Two charged the defendants with using force and violence in robbing a bank. 18 U.S.C. § 2113(a). Count Three charged them with taking and carrying away with intent to steal money in the control of a bank. 18 U.S.C. § 2113(b). Count Four charged them with forcing a person to accompany them in committing the above offenses. 18 U.S.C. § 2113(e). The evidence adduced at trial, through 45 Government witnesses, including one co-conspirator, showed that Alessandrello and Lacognata planned the criminal venture and enlisted three acquaintances to help execute it. On July 20, 1979, three of the co-conspirators went to the Dedrick family home in Newfoundland, New Jersey, and forcibly removed Joan Dedrick from the house. They bound and blindfolded her, placed her in a box, and drove her to the apartment of one of the co-conspirators. They then asked for her husband's telephone number at the bank. William Dedrick, executive vice-president of the Franklin Bank in Paterson, New Jersey, received a telephone call from them on his private office line. He was told that his wife was being held, and heard her voice briefly. He was then told to get $150,000 in small, unmarked bills and take it to a telephone booth across the street from the bank in 15 minutes. Dedrick went to the designated booth and received a call directing him to another phone booth. At the second booth he received a call telling him there were too many police officers in the area. Dedrick returned to the bank. A few hours later he received another telephone call and was instructed to get $300,000. When he protested that there was not that much money in the bank, the caller reiterated the larger amount and threatened to kill Dedrick's wife if he did not deliver the money. The next day Dedrick received another phone call. He was told to place the money in a shopping bag inside a briefcase and wait for further instructions. Dedrick stuffed $217,000 into a suitcase and a bag. Shortly thereafter, he was directed to take the money to a telephone booth at a certain location in New York City. He complied; at that booth he was called and told to proceed to another phone booth. After a series of similar steps, he was finally directed back to New Jersey and ordered to leave the money in a wooded area in Fort Lee. He did so, and returned to his home. Approximately one and one-half hours later the money was retrieved from the wooded area by the defendants. Mrs. Dedrick was released, still blindfolded, at a gas station in Teaneck, New Jersey. The defendants were arrested a short time later.

The trial commenced on September 25, 1979. A jury was selected and sequestered. The Government began presenting testimony on September 26 and rested on October 5. The defendants moved for judgments of acquittal on each count. After the motions were denied, the defendants rested without presenting any evidence. The case was submitted to the jury on October 6. That evening the jury returned verdicts of guilty against both defendants on each count. On November 9, the defendants were each sentenced to a five-year prison term on Count One and a concurrent general term of 21 years on Counts Two, Three and Four. It is from these judgments that they appeal.

II.

The defendants' chief argument on appeal is that they were improperly excluded from a portion of the jury selection proceedings. These proceedings were handled in the following manner. The trial judge first addressed the pool of approximately 80 prospective jurors. He introduced all the attorneys and the defendants, and then explained the basic functions of the jury, prosecution, and defense in a criminal trial. After some further remarks about the Government's burden of proof, he described and explained the indictment. The first 16 prospective jurors were called and placed in the jury box. One at a time, each of them stood up and disclosed the following information: name; years of residence at current address; employer; length of employment; marital status; spouse's occupation, spouse's employer, length of spouse's employment; children; children's occupation and place of employment; homeowner status; hobbies or recreational interests; and level of education. The judge then continued the voir dire by posing a number of general questions to the group of 16. He asked whether any of them (1) recognized any of the defendants, attorneys, or law firms involved in the trial, (2) had ever served on a grand jury, (3) had ever served on a trial jury, (4) had ever been a witness in a criminal case, (5) had ever been a victim of a crime or was closely related to someone who had been a victim of a crime, (6) had ever been accused of a crime or was closely related to someone who had been accused of a crime, (7) had ever been employed by a law enforcement agency or was closely related to someone who had been so employed, (8) had ever been employed by the Government or was closely related to someone who had been a Government employee, (9) had any pending disputes with the Federal Government, and (10) had heard anything about this case.

Any of the prospective jurors who answered the first nine questions in the affirmative were asked follow-up questions by the judge. The judge then explained certain fundamental legal principles, such as the presumption of innocence, the requirement that each defendant be found guilty beyond a reasonable doubt, the absence of any evidentiary weight to be given to the charges and content of the indictment, etc., and questioned the prospective jurors to ensure that they could apply these principles. The judge concluded this portion of the voir dire by describing the predicted trial length of three to four weeks, the schedule of six court sessions per week, and the restrictions upon a sequestered jury. He explained that he wanted to ask a few further questions of each prospective juror, individually, in a small room adjoining the courtroom. He advised the group that anyone who wished to be excused from jury duty due to severe personal hardship should offer his or her excuse in the anteroom adjoining the courtroom. Up to this point, all the defendants, as well as their attorneys, were present during voir dire. They saw each prospective juror, and heard each question and answer. ²

The judge then retired to the small anteroom, accompanied by the prosecutors and defense attorneys. He explained that he wished to examine prospective jurors individually on the matter of pre-trial publicity. He stated that he wished to avoid the possibility, which never took place, of having one person blurt out something prejudicial in front of the group of prospective jurors, thereby tainting all 15 other prospective jurors. The defense attorneys objected to this procedure, stating that the defendants should be present. The judge responded that the room was so small that there was not enough room for the four defendants. ³ He told the defense attorneys that they were free to go out and consult with their clients as often and as long as they wished. He added that they would also have an ample opportunity after the jury pool was selected to consult with the defendants before advancing challenges for cause or peremptory challenges. While the defendants remained in the courtroom approximately 25 feet away, ⁴ the judge conducted this portion of the voir dire. Prospective jurors entered the anteroom one by one. The judge asked each of them several questions concerning his or her exposure to pre-trial publicity, as well as the effect of such exposure on the juror, and each juror was permitted to request being excused from serving on a sequestered jury during a trial estimated to last three or four weeks. ⁵

After all 16 had been examined on this topic, the judge and attorneys returned to the courtroom. ⁶ There, again in the presence of the defendants, another 16 prospective jurors were called and placed in the jury box. The voir dire proceeded as before. Each individual answered specific questions about himself. The judge asked the whole group certain general questions related to the particular case, and explained some basic legal principles. The topic of pre-trial...